An Overview And Analysis Of Adoption In India

This article is written by Rhea Bazaz

Abstract

The author aims to give an overview of the laws and guidelines regulating adoption in India and through them seeks to highlight how society has progressed over the ages. The author first defines adoption and examines how different religions used to view the practice during the ancient times. She then moves on to the legislations that have been enacted according to various communities and situations of the child which is up for adoption. The author then enlists a few judgments through which India’s progress in the process of adoption is highlighted along with certain loopholes, for which suggestions are given and the author concludes by stating that adoption as a practice should be encouraged and allowed across all religions with uniform laws, as would suit a secular and relatively young country like India.

Introduction

The term ‘adoption’ is understood to mean the legal process of making a child, who does not biologically belong to oneself, a part of one’s family.¹ It is generally a legal agreement between the biological parents and the people who intend to take the child into their families.

In ancient Hinduism, the son was given utmost importance in any family setup. The Hindu Dharamashastras or ancient Sanskrit texts used to emphasize on the importance of male progeny to perform all funeral obligations of the parents in order to guarantee them a better after-life. Apart from Aurasa or a legitimate son, ancient Hinduism also used to recognize Dattaka or the adopted son, Kshetraja or the son conceived by the wife with another man with the concept of the husband and Krita or the son who has been purchased from his biological parents at some consideration.

These examples show that in case of failure to have a male offspring, one was allowed to take such a child from another family and make him a part of their own. The recognized form of such transplantation of course involved a valid agreement having the consent of both parties and in some cases, consideration was also involved.²Even commercial contracts to such effect were allowed because at that point of time, children were viewed as lower beings like slaves and animals and hence considered as property which could be sold or transferred at will. The Vasishitha text which forms the basis of the present Hindu law of adoption states that since a son is produced from the seed and the uterine blood, provided by the father and the mother respectively, it is the father and the mother who are competent to sell or abandon.³

The concept of adoption has always been supported in Islam. It is encouraged to help orphans and those who are poor. If there is nobody to look after orphans, then the Islamic government is supposed to take responsibility. In pre-Islamic Arabia, the child used to take the surname of the adoptive father. However, Islam categorically rejected this particular provision. The reason for the same has been given in an anecdote. When Prophet Muhammad got married to Khadija, she gifted a slave called Zayd Bin Haritha ( Zayd, son of Haritha).

However, the Prophet took very good care of the slave that their relationship changed from that of master-slave to father-slave. Zayd was one of the first few people to accept Islam. When Zayd’s father and uncles traced his whereabouts and came to reclaim him, the Prophet set him free. However, Zayd refused to go back to his family. This angered the father and he disowned Zayd on the spot.

The Prophet then reclaimed Zayd and gave him the title of Zayd Bin Muhammad. However, when Zayd grew up and his marriage didn’t work out and ended in divorce, there was a revelation by Allah that adopted sons were made the sons of their adoptive fathers only by speech. In truth, they still belonged to their biological fathers and hence, they should retain their old surnames. This revelation led to the change in name again to Zayd Bin Haritha but the Prophet and Zayd still continued the relationship of father-son.

As a result, it is stated in the Quran that bestowing the name of the adopted father on the child goes ‘against the truth’ and hence, they should retain their birth name. This means that adoption does not end the relationship between the biological family and the child and the rules of mahram or forbidden relationships still apply to the biological siblings, parents, uncles, aunts etc. of the child. The adopted child is also not entitled to inherit from adoptive parents while he is entitled to the same from the biological parents. However, the adoptive parents can use their discretion and will one-third of the estate to the adopted offspring.⁴

Legislations

There was no concept of adoption in ancient Jewish culture.  If a man died, his brother would automatically become owner of the entire estate so there was no requirement to adopt a male heir. At that time, adoption was more common in ancient Rome.  The parents used to have a choice of permanently disowning their biological children for various reasons. However, if the parents adopted a child, it meant that they had desired and chosen the child and hence, couldn’t abandon or disown him. On adoption, the child received a new identity and all his prior debts and commitments were erased.  Adoption also led to formation of new responsibilities and rights. It also made the child an heir of the adoptive father and both of them were joint shareholders in all possessions and fully-united till death.⁵

India has ratified the Convention on the Rights of Child (CRC) which states that if a child no longer has a family home or environment or is living in a hazardous environment which could be detrimental to him, it is the State’s duty to provide that child protection and assistance. The national legislations of the State are to provide some arrangement of alternative care to the child. The child is to be placed in a foster institution or be given for adoption, keeping in mind the child’s cultural and religious background and welfare.⁶ It is also provided that the adoption is to be carried out only with the approval of the relevant authorities inter-country adoption is also to be considered for the utmost welfare of the child, if he is unable to be placed in a foster home in his domestic State.⁷

An attempt was made to reform the ancient Hindu law by bringing in the Hindu Adoption and Maintenance Act in 1956. While this legislation applies to anybody who comes under the definition of being a Hindu, it does not govern Parsis, Muslims and Christians.  The Act defines who exactly a Hindu is and includes even Buddhists, Jains and Sikhs. ⁸ The requisites of a valid adoption are that both parties, the one adopting the child and the one giving the child for adoption have the right and capacity to do so and the person being adopted must be eligible for the same.⁹

No person can be adopted under this law if he is not a Hindu, has already been adopted, is married or has not completed 15 years of age.¹⁰ Both men and women need to be majors and of sound mind in order to adopt.¹¹ Only the mother or father or guardian of the child can give up the child for adoption. Only the mother’s permission is required if the father has died, renounced the world or is declared by a competent court to be of unsound mind.

Similarly, if the mother is dead or has renounced the world or ceases to be a Hindu or is declared mentally unsound, only the father’s consent would suffice. The guardian can also give up the child for adoption without seeking any permission if both the parents have passed away, renounced the world, have been declared mentally unsound or have ceased to be Hindus. In such cases and if the parentage of the child is unknown, the guardian only needs permission from the court.¹² After adoption, the child ceases all relationships with his biological family and shall be entitled to inheritance only in his adoptive family.

The provisions of the Juvenile Justice Act also focus on rehabilitating children who need care and protection. The Child Welfare Committee (CWC) is supposed to make all enquiries about abandoned children and if it established that they have nobody to claim or look after them, then the CWC will declare them free for adoption. At least three members of the CWC will have to approve the said declaration. The declaration is to be made within 2 months for children up to 2 years old and 4 months for children older than 2 years.¹³ If a parent or guardian abandons a child, they are supposed to produce the child in front of the CWC.

The surrendering party shall get a period of 2 months to reconsider their decision and after due inquiry, the CWC shall allow the child to be with party under supervision or send the child to be placed in a specialized adoption agency if he is less than 6 years old or a children’s home if he is above 6 years old.¹⁴ Under this legislation, an attempt has been made to make the process of adoption secular and applicable to all religions. Hence, under this Act, a child of any religion can be adopted by parents of any religion. Of course, the CWC will look into the merits of each case before finally handing over the child to any family and it is an ordinary court which has to finally allow the adoption.¹⁵

The Central Adoption Resource Agency (CARA) was established in 1986 to bring about uniformity in the process of inter-country adoption. The function of CARA is to supervise adoption all over the country and develop guidelines for the same. The guidelines require the prospective parents to fill an application form online and upload all relevant documents with Specialized Adoption Agencies nearest to their places of residence within their state. The Agency will appoint a social worker who shall assist the parents in making a Home- Study Report. This Report shall be the basis of allowing the prospective parents to adopt a child from any agency in the country and shall remain valid for three years.

Once the Report is completed, it shall be shared with the parents immediately. It is on the basis of this Report and the documents submitted that parents shall be deemed eligible and suitable to adopt a child. If the parents are found to be unsuitable, the reasons for the same are to be recorded in the Child Adoption Resource Information and Guidance System. The prospective parents can appeal against such a decision and such a decision shall be dismissed within a period of 15 days. The decision of the Appellate authority shall be final. After this, the profiles of various children shall be showed to the prospective parents and once the prospective parents choose a child, a meeting is to be set up between both. From this step onwards, the entire matching process is to be completed within twenty days. Once the adoption is done, the Specialized Adoption Agency which prepared the Home-Study Report shall conduct a follow-up for two years on a six-month basis.¹⁶

The CARA has also framed certain rules for eligibility of prospective parents. If a married couple is involved, then the consent of both the spouses is required. While a single woman can adopt a child of any gender, a single man cannot adopt a girl child. Those couples who have at least three children shall not be considered for adoption except in cases of children with special needs or those children who are hard to place. In case of a single prospective parent, if the child is up to 4 years old, the maximum age difference between the child and prospective parent can be 45 years, for children aged between 4 to 8 years, it can be maximum 50 years and for children aged 8 to 18 years, it is 55 years.

If a married couple intends to adopt, then the composite age shall be considered. For the above-mentioned age groups of children, the upper limits on composite age difference are 90, 100 and 110 years respectively. The minimum age difference between either of the prospective parents and the child shall be 25 years. The age of the prospective parents shall be considered up to the date of registration. In order to be eligible to adopt a child, the couple must be physically, mentally, emotionally and financially sound and should not be suffering from any terminal disease. It is also required that the couple has been in a stable marriage for at least two years.¹⁷

Since Christians and Parsis do not formally recognize the process of adoption, the concept of guardianship comes about. In this case, a guardian can be appointed by the court if the father of the child is deemed unfit by the court or if the child has lost his parents. The guardian is then held responsible for the health and well-being of the child.¹⁸ However, this does not lead to the formation of a father-child relationship between the guardian and ward and the ward is not entitled to inheritance of the guardian’s property.

Under modern Islamic law, while the practice of adoption or kafala is allowed, it is treated more like a guardian-ward relationship rather than that of a parent-child. As already mentioned in the introduction, those who adopt the child do so in order to act as a trustee to an orphan, not to replace his biological parents. In Islam, a lot of importance is given to the concept of family and lineage and since the network of extended relatives is very strong in Muslims, it is always preferred that a relative, albeit a distant one, take the child under their wing rather than a person outside the family. This is done to avoid confusion of parentage and lineage. Whatever the child inherits is from his biological parents and not from his adoptive parents¹⁹ and the child does not drop his biological surname.²⁰

Important Judicial Precedents 

In a case where the parents were willing to adopt a female child having heart problem in spite of already having a daughter, the Bombay High Court held that going by the provisions of the Juvenile Justice Act and previous judicial precedents, parents could be allowed to adopt a child of a particular sex even if they already have a child of that sex.²¹

The Apex Court has specially emphasized on the fact that in order to adopt a child, the man has to take the consent of the wife. If this essential is not fulfilled, then the adoption will not be considered valid.²² One question which came up in front of the Madhya Pradesh High Court was whether a man was required to take the consent of all his wives if he had more than one wife who was living and of sound mind at the time of adoption. It was held that consent of all the wives was required and if one wife was missing, she could not be assumed to be dead until all the requirements under Section 7 of the Hindu Adoption and Maintenance Act were followed.²³

One major point of discussion came up of what meant by possession of a strong mind. The Apex Court recently laid out that when it comes to insanity or unsoundness of mind as an exception under a law, legal insanity had to be proved and not medical insanity. A person could be diagnosed with a mental illness like depression or schizophrenia but if he was capable of consenting to a particular act and knew the consequences of such an act, he would not be considered legally insane and would not come under the exception.²⁴ It has also been held in a case that if a person is deaf and mute but is capable of expressing himself through gestures or signs, then he would be considered to be a person of sound mind.²⁵

Another important aspect is that of inter-country adoption. India is one of the 88 countries in the world which allow international adoption. When a petition was filed in the Supreme Court by an advocate who alleged that social organizations were trafficking children under the garb of overseas adoption and he urged the concerned authorities to issue regulations to prevent the same. The Court then held that if a child is surrendered, efforts must be made to find adoptive parents within India to prevent a sudden change in religion and culture. If it is not possible to find parents within India, then foreign adoption should be considered rather than keeping the child in an orphanage, deprived of any family love or being made to live a life of malnutrition or squalor on the streets.²⁶

If any person residing in a foreign country is interested in adopting a child from India, they have to approach an Authorized Foreign Adoption Agency or any central authority in the country of residence to prepare a Home-Study Report. The Authorized Foreign Adoption Agency shall then register the application in the Child Adoption Resource Information and Guidance System along with the necessary documents. The same shall be forwarded to a District Child Protection Unit, which shall then get the family background of the prospective parents checked by a social worker and forward the same to the foreign agency. The foreign agency shall then send across the background report and the documents to the receiving country along with a letter of approval for the adoption.

The guidelines have highlighted the procedure to be followed if foreign residents wish to adopt the child of relatives living in India. After the documents are forwarded to the receiving country, the prospective parents have to file an application in either a Family Court or a District Court or a City Civil Court, along with the documents and a letter of consent from the biological parents. If the Court is satisfied about the welfare of the child, it shall issue an Order approving the adoption and a certified copy of the same is to be submitted to the District Child Protection Unit in order to get a No-Objection Certificate.²⁷

Criticism

• The process of adoption is a very tedious process. It often takes months or even years for prospective parents to get matched to a child of their choice and to finally adopt them. This is because there is a long queue of prospective parents which is ironic since the number of children who are in need of a home is also very high.
• During the process of selecting a child, a gender bias still persists in Indian parents who prefer to adopt a male child. This leaves a girl child vulnerable to a life in the orphanage without any family love and does not give her the opportunity to live her life to the fullest.
• A married woman cannot adopt in her own capacity even with her husband’s consent unless the husband is deemed dead, unfit or mentally unsound. The courts have been biased against women who have tried to adopt in their own capacity while husbands are allowed to adopt with the consent of their wives.²⁸ In one instance, the court had held that if a widowed woman adopts a child, it shall be assumed that the deceased husband had adopted the child before his death as well so that the child can be considered his heir.²⁹
• There is no provision for homosexual couples to adopt a child. While homosexual marriage is not yet legalized in India, they do not even have the chance to make a family by adopting a child.

Suggestions

• While an attempt has been made to secularize the adoption of abandoned children in the Juvenile Justice Act, a central legislation is required in order to streamline the entire process of inter-religious adoption.
• Since adoption is subject to personal laws, this leads to a lot of chaos and non-uniformity. If a Uniform Civil Code is enacted, the child will have a wider pool of families to go into and his welfare will not be compromised on. It will also be easier for the courts to adjudicate on adoption matters if they only have to apply one given set of rules.
• The state of Tamil Nadu introduced a scheme in the year 1992 in order to address the alarming sex ratio in the state. Under this scheme, if a family did not wish to keep a female child, they could leave the baby on a cradle at government hospitals so that they could be placed in orphanage centres and sent to homes where they would not be unwanted.³⁰ If such a scheme is enacted in the entire country, it could reduce the number of abandoned children and also make it easier for the adoption centres to place the child in a home based on their family background.

Conclusion

While there are a lot of guidelines and legislations to regulate adoption in India, there is only a need of uniformity and a faster-paced system. Those who are willing to invest so much time and effort to bring a child home should be encouraged as much as possible. In a conservative society like ours where people still believe that one cannot love a child as much if they are not related by blood, adoption should be encouraged and made simpler.

This shall reduce any chances of abuse since parents can easily give up a child rather than making him live in a toxic environment and a greater number of children shall not be homeless. Those who wish to give a child a loving home should be given a chance to do so irrespective of their religion, sex or sexual orientation. After all, it is rightly said that blood is thicker than water and if a person can be generous enough to accept a child borne by another, they should be given full opportunity to do so with ease.

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