Inter-Country Adoption

Inter-country adoption, also known as transnational adoption is a mode of adoption in which an individual or a couple becomes the legal parent(s) of a child who belongs to a different nation. The couples who are looking to adopt a child belong to some other nation and they have to fulfill the legal conditions of both the countries, i.e. the country in which the potential adopters reside and the country to which the child belongs. Some countries have a proper system in place to go ahead with inter-country adoption while some nations forbid it.

The practice of inter-country adoption came about largely as a humane response to the plight of war orphans and the abandoned children of servicemen in World War II the Korean War and the Vietnam War. Today the main receiving countries are the United States, Canada and the developed countries of Western Europe. Factors such as the decline in fertility associated with stalling marriage the limited success rate and high cost of infertility treatment and a lack of domestic adoption opportunities have made inter-country adoption an alternative to childless couples in the receiving countries.  However in states of origin or sending countries, extreme poverty, lack of contraception and society’s attitudes to birth of illegitimate children are three major factors leading to the abandonment of children to institutions. The concept of “male” child also leads to the abandonment of the girl child which is an unfortunate reality in our own country.

International And Regional Legislative Framework:

  • Hague Convention on Jurisdiction, Applicable law and recognition of Decrees Relating to Adoption (1965): this instrument covers the adoption of children less than 18 years of age.
  • International Covenant on Civil and Political Rights 1966 (Article 17 and 24): this instrument mainly deals with any arbitrary or unlawful interference with privacy or family, secondly entitles the family as the natural and fundamental group unit in society to protection by the state and finally sets forth that every child shall be registered immediately after birth and that he or she has a right to nationality. This treaty indirectly touches aspects of adoption.
  • Ar-17
  • No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
  • Everyone has the right to the protection of the law against such interference attacks
  • Article 24.
  • Every child shall have without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor on the part of his family, society and the State.
  • Every child shall be registered immediately after birth and shall have a name.
  1. Every child has the right to acquire a nationality
  • UN Declaration of the Rights of the Child 1959 (Principles 6 and 9): Based on the 1924 League of Nations Declaration of the Rights of the Child (Geneva Declaration) – which is regarded as the cornerstone of children’s rights, namely referring to orphans and waifs – this instrument not only stresses the importance of tangible needs but also the child’s need for love and understanding within a family.
  • Principle 6
  • The child for the full and harmonious development of his personality, needs love and understanding. He shall wherever possible, grow up in the care and under the responsibility of his parents, and, in any case, in an atmosphere of affection and of moral and material security a child of tender years shall not save in exceptional circumstances be separated from his mother. Society and the public authorities shall have the duty to extend particular care to children without a family and to those without adequate means of support. Payment of State and other assistance towards the maintenance of children of large families is desirable.
  • Principle 9
  • The child shall be protected against all forms of neglect, cruelty and exploitation. He shall not be the subject of traffic in any form.

The child shall not be admitted to employment before an appropriate minimum age he shall in no case becaused or permitted to engage in any occupation or employment which would prejudice his health or education or interfere with his physical, mental or moral develop.

  • UN Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children with Special Reference to Foster Placement and Adoption Nationally and Internationally 1986 (Article 13-24): This instrument, which specifically addresses adoption and children’s welfare by setting up a basic framework has served as the main foundation for later regulations on adoption, especially for the CRC and the Hague Convention.
  • UN Convention on the Rights of the Child 1989 (Article 20 and 21): this instrument mostly ensures full development of the child in an environment happiness, love and understanding. It also obligates State to provide special protection, assistance for the children deprived of family environment.

Laws that govern Adoption In India

1)The Hindu Adoptions and Maintenance Act, 1956 (HAMA)

The ambit of this Act is confined to the Hindus in India. Under this Act Indian citizens who are Hindus, Jains, Sikhs, or Buddhists having the capacity to adopt  are allowed to formally adopt a child. Under the 1956 act a married man, a widow, a widower, single women, or a divorced or deceased women has the capacity to adopt provided they are Hindus .

2)The Guardianship and Wards Act, 1890(GWA)

Muslims, Christians and Parsis  are governed under the Guardians and Wards Act, 1890. This  statute predominantly deals with guardianship and not adoption  and thus it is to be read along with the personal laws or the topic as ancillary/corollary to the latter. It deals only with the guardians of the person and property of the minor. In appointing or declaring the guardian of a minor, the court considers the welfare of the minor as well .

Case-Laxmikant Pandey Vs. Union of India [1984]

SC laid down few principles governing the rules for Inter-Country adoption.

The case was instituted on the basis of a letter addressed to the court by a lawyer Laxmikant Pandey alleging that social organisations and voluntary agencies engaging in the work of offering Indian children to foreign parents are indulged in malpractices. It was alleged that these adopted children were not only exposed to long horrendous journey to distant foreign countries at the risk of their life but they also ultimately become prostitutes and beggars.Supreme Court in this case expressed its opinion and framed certain rules for Inter-Country adoption. Supreme Court in this case expressed its opinion and framed certain rules for Inter-Country adoption.

  • The Hon’ble Court asserted in para 8 of the judgement that while supporting Inter-Country adoption, it is necessary to bear in mind that the primary object of giving the child in adoption being the welfare of the people, great care has to be exercised in permitting the child to be given in adoption to foreign parents lest the child may be neglected or abandoned by the adoptive parents in the foreign country or the adoptive parents may not be able to provide to the child a life of moral and material security or the child may be subjected to moral and sexual abuse or forced labour or experimentation for medical or other research and may be placed in a worse situation than that in his own country. It further went on to give the prerequisites for foreign adoption. It stated that In the first place every application from a foreigner desiring to adopt a child must be sponsored by social or child welfare agency recognised or licensed by the government of the country in which the foreigner is a resident. No application by a foreigner for taking a child in adoption should be entertained directly by any social welfare agency in India working in the area of Inter-Country adoption or by any institution or centre or home to which children are committed by the juvenile court.The Supreme Court did not stop at that. It also insisted the age within which a child should be adopted in case of Inter-Country adoption. if a child is to be given in Inter-Country adoption it would be desirable that it is given in such adoption before it completes the age of 3 years.







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