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Adoption
Laws of India
Introduction
The adoption of Indian children by
foreign nationals is a controversial issue. To some people it is incomprehensible
why Indian children should be sent abroad at all. This situation arises
because adoption is still a bit of a stigma in India. Indians are not very
open to the idea of adoption. In foreign countries, there is the opposite
problem where children are in short supply for adoption. While there are
innumerable cases of Indian orphans being given a secure and loving home
in another country, newspapers have reported a number of cases where the
child has gone to an alien land only to be mistreated. Such children have
been used as domestic servants, beggars and even for prostitution. In other
cases, so-called adoption agencies have demanded exorbitant amounts from
foreign nationals in consideration of giving a child in adoption and often
this is under the label of maintenance charges and medical expenses supposed
to have been incurred for the child. It is these cases that leave a bad
taste in the mouth and make people wary of adoption by foreign nationals.
In the matter of L.K. Pandey vs. Union of India, the Supreme Court of India
has laid down certain guidelines that have to be followed in the case of
foreign adoption in an attempt to safeguard the interests of the children.
A foreign national adopts an Indian
child under the provisions of the Guardian and Wards Act, 1890. The
Indian court will appoint the foreigner as the child's guardian. The foreign
national will take the child to his own country and adopt him or her as
per the laws of his country.
Assessing the
fitness of the applicant
A Social or Child Welfare Agency
licensed or recognized by the government of the country in which the foreigner
resides must sponsor every application of a foreigner for adoption of an
Indian child. This agency will appoint a professional social worker to
prepare a Home Study Report that will indicate the basis for the sponsorship
of the foreigner's application. The Home Study Report will include the
following details: the applicant's family background, marital status, his
education and employment history, his financial status and dwelling conditions,
his health profile, information about other offspring, if any, and references.
The agency must assess whether the applicant is fit and suitable and has
the capacity to parent a child coming from a different racial and cultural
milieu and whether the child will be able to fit into the environment of
the adoptive family and the community in which it lives.
Requisite documentation
The foreign national is required
to submit supporting documents along with his application. These include:
a recent family photograph, his marriage certificate, a declaration of
theapplicants' physical fitness duly certified by a medical doctor, a declaration
of the applicants' financial status with corroborating documents such as
an employment certificate, income-tax returns, bank references, and particulars
of property owned by them.
Another important annexure to the
application is a declaration of willingness. This document will state that
the foreigner is willing to be appointed as the child's guardian.
He will also have to furnish an undertaking that he will adopt the child
in accordance with the law of the country in which he resides at the earliest,
but not later than two years from the date of the child's arrival in his
country. The applicant must also declare that he will maintain the
child and provide it with necessary education and upbringing according
to their status. The foreign national is also required to sign an undertaking
that states that he will send the Indian agency and the court a progress
report and a photograph of the child monthly in the first year, quarterly
in the second year, and half yearly up to five years. In addition, the
foreigner is expected to sign a power of attorney in favour of an officer
of the Social or Child Welfare Agency in India so that the officer can
process the case.
All the certificates, declarations
and documents that are attached to the foreigner's application are required
to be duly notarized by a Notary Public. The notary's signature, in turn,
will have to be duly attested either by an officer of the Ministry of External
Affairs or Justice or Social Welfare of the country of which the foreigner
is a resident. An officer of the Indian Embassy or High Commission or Consulate
in that country can also attest the notary's signature.
Role of the foreign
welfare agency
The Social and Child Welfare Agency
sponsoring the application of the foreigner must certify that the foreigner
seeking to adopt a child is permitted to as per the laws of his country.
The agency must undertake to ensure the adoption of the child by the foreigner
according to the law of his country within a period of two years. Once
the adoption procedure is complete, it is the duty of the agency to send
two certified copies of the adoption order to the Social and Child Welfare
Agency in India through which the application for guardianship was processed.
One copy of the adoption order will have to be filed in court and the other
will remain with the Indian agency for their records. The agency sponsoring
the guardianship application must also agree to send progress reports of
the child to the Indian agency. These reports will be quarterly in the
first year and half yearly in the following years till the adoption has
been effected. The foreign agency will also have to undertake that in the
event of the disruption of the adopting family before the completion of
the adoption procedure, it will take care of the child and find a suitable
alternative placement for it with the approval of the Indian agency. In
the case of an alternative placement becoming necessary, this development
will be reported to the court handling the guardianship proceedings and
this information will be passed on by the court and the Indian agency to
the Secretary, Ministry of Social Welfare, Government of India, New Delhi.
Court procedure
The application for guardianship
must be made before the court of the District Judge within whose jurisdiction
the Social and Welfare Child Agency in India that is processing the application
of the foreigner is located. The application will be filed by the Indian
welfare agency or a person duly authorized by them in this regard. Next
the court issues notices to the Indian Council for Child Welfare (ICCW)
and the Indian Council for Social Welfare (ICSW) in order that they scrutinize
the guardianship application. These organizations are expected to give
their considered opinion whether they believe that adoption by the foreign
national is in the child's best interests. The ICCW or ICSW make their
representation to the court after carefully studying the application with
all the annexures, the Home Study Report, and the Child Study Report and
making all necessary inquiries.
The court will first hear all the
concerned parties and examine all the documents. The court must be satisfied
that the foreigner will be a suitable adoptive parent for the child and
will provide the child a secure and loving home. The court must also be
convinced that the child will be able to assimilate itself into the family
and community of the foreigner. If the court is satisfied on all these
counts, it will pass an order appointing the foreigner as the child's guardian
and the foreigner will be allowed to take the child back to his country
with a view to eventual adoption. In some cases, the court may even put
a condition that the foreign national make provision by way of deposit
or bond for the repatriation of the child to India should such a situation
arise. The photograph of the child is attached to the order and counter-signed
by the judge.
It is a well-documented fact that
court procedures are excruciatingly slow in India. Keeping this in mind,
the Supreme Court of India, in the matter of L.K. Pandey vs. Union of India,
has fixed a maximum period of two months for the disposal by the courts
of applications made under the Guardians and Wards Act, 1890. The same
judgement has categorically dispensed with the personal presence of the
foreign national for the purpose of completing legal formalities.
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