JAMIA MILLIA ISLAMIA

AN ASSIGNMENT

ON

ADOPTION IN CONFLICT OF LAWS

SUBMITTED TO: SUBMITTED TO:

PROF. KAHKASHAN Y. DANYAL SYED SUBOOR HUSSAIN
FACULTY OF LAW LLM (II SEM)
JAMIA MILLIA ISLAMIA JAMIA MILLIA ISLAMIA
 ACKNOWLEDGEMENT

I have taken efforts in this project. However, it would not have been possible without
the kind support and help of many individuals. I would like to extend my sincere
thanks to all of them.
First of All, I would like to thank Almighty for blessing me with good health
throughout the completion of this project.
I am highly indebted to PROF KAHKASHAN Y. DANYAL for her guidance and
supervision as well as for providing necessary information regarding the project and
also for her support in completing the project.
I would like to express my gratitude towards my parents for their encouragement
which helped me in completion of this project.
I would like to express my special gratitude and thanks to my friend and classmate
Kaiser Naz without whom the assignment would not have been a success and other
friends who have willingly helped me out with their abilities.
 TABLE OF CONTENTS

INTRODUCTION……………………………………………………

Origins of Inter–Country Adoptions……………………………….

International and regional legislative framework………………..

Laws of Adoption in India…………………………………………

Concept of Inter-Country Adoption in India………………………

Central Adoption Resource Authority (CARA)…………………..

Problems subsisting in inter-country adoptions………………….

Recommendations………………………………………………….

Conclusion………………………………………………………….
 INTRODUCTION

The word ‘Adopt’ comes from Latin ‘adoptare’, to choose. To take by choice into a
relationship; especially to take voluntarily (a child from other parents) as one’s own
child. Adoption is the act of legally placing a child with a parent or parents other
than those to whom they were born. It can be defined as the statutory process of
terminating a child’s legal rights and duties towards the natural parents and
substituting similar rights and duties towards adoptive parents by establishing a
parent-child relationship between persons not so related by the birth of the child. For
the parentless or the abandoned child, adoption means a balanced physical and
psychological family environment and to the desirous parents, chances to become
parents and experience family growth.

Adoption is a complex social phenomenon, intimately knitted into its family law
framework and shaped by the pressures affecting the family in its local social
context. It is the mirror reflecting the changes in our family life and the efforts of
family law to address those changes. This has caused it to be variously defines;
different societies, in the same society at different times and across a range of
contemporary societies.

In the context of Private International Law, adoption of a child becomes relevant

when it involves interaction between nationals of different states. In such situations,
the institution of adoption becomes international, crossing the borders of the national
legislations. Inter-country adoptions are defined as the adoption of a child by a
person of another country. Inter-country adoptions are often a more viable choice
than domestic adoptions for many families, wanting to adopt a healthy happy infant.
Inter-country adoptions from developing countries take place primarily because the
demand for children in developed countries is increasing and the population
explosion problems in developing countries.

An inter-country adoption takes place when a person adopts a child from a different
country through legal means and brings the child to the home country to live
permanently. Inter-country adoption results in the legal transfer of parental rights
from birth parents to adoptive parents.
 Origins of Inter–Country Adoptions
“Every child has a right to love and be loved and to grow up in an atmosphere of
love and affection and of moral and material security and this is possible only if the
child is brought up in a family. The most congenial environment would, of course,
be that of the family of his biological parents. But if for any reason it is not possible
for the biological parents or other near relative to look after the child or the child is
abandoned and it is either not possible to trace the parents or the parents are not
willing to take care of the child, the next best alternative would be to find adoptive
parents for the child so that the child can grow up under the loving care and attention
of the adoptive parents.”1

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 institutions2. The concept of
“male” child also leads to the abandonment of the girl child which is an unfortunate
reality in our own country.

1
AIR 1984 SC 469
2
D. Howe, P. Sawbridge, and D. Hinings, “Half a Million Women”, New York: Penguin, 1992
 International and regional legislative framework
At global level, it is of course the Convention on the Rights of the Child (the “CRC”)
that now constitutes the basic standard-setting text on adoption. Inter-country
adoption is specifically regulated by the ‘1993 Hague Convention on the Protection
of Children and Cooperation in Respect of Inter-country Adoption’ (the “HC”),
which has now been ratified by about 90 States.

The approach of international legislators to adoption changed at the end of the

20th century as a result of serious concerns on adoption-related abuses that were
being increasingly expressed at that time.

CRC Article 21 includes the obligation to “ensure that the child concerned in inter-
country adoption enjoys safeguards and standards equivalent to those existing in the
case of national adoption.”3

The CRC places major emphasis on the importance and role of the parents and
family as the child’s primary caregivers, and requires, first and foremost, States to
assist them when they have difficulty in fulfilling their responsibilities appropriately.
Only when, despite such efforts, the child is “deprived of his or her family
environment”, or cannot be allowed to remain therein in light of his or her best
interests, does the obligation of the State to “ensure alternative care for the child”
becomes operative.4 And it is only when, in that case, the State is unable to ensure
that the child is “placed in a foster or an adoptive family” or is cared for “in any
suitable manner in the child’s country of origin” that inter-country adoption “may
be considered”.

The Committee on the Rights of the Child, which is the treaty body monitoring
compliance with the CRC, has expressed concerns over violations of inter-country
adoption standards in the case of many countries, and strongly recommends all
States involved in inter-country adoption that they ratify the Hague Convention as
one means of addressing the problems.

The Hague Convention sets out to do two main things, both unequivocally directed
towards protecting the child from illicit practices related to inter-country adoption,
rather than to promoting the practice as such:

3
Convention on the Rights of the Child, Article 21(c)
4
Convention on the Rights of the Child, Article 20
1. “to establish safeguards to ensure that inter-country adoption takes place in the
best interests of the child and with respect for his or her fundamental rights as
recognized in international law”; and

2. “to establish a system of cooperation among Contracting States to ensure that

those safeguards are respected and thereby prevent the abduction, the sale of, or
traffic in children.”5

In many ways, it is therefore an implementing treaty for the CRC as regards inter-
country adoption. Thus, as a private law instrument, it puts in place guarantees,
procedures and mechanisms that facilitate States’ compliance with, in particular,
their obligations under the relevant CRC provisions.

The system of cooperation established by the HC revolves around a governmental

“Central Authority” in each country to oversee adoptions and to serve as focal point
on inter-country adoption issues with its counterparts in other States. The treaty
foresees that “adoption bodies”, or agencies, duly accredited by the Central
Authority in the receiving country can carry out a range of tasks related to the
adoption process, notably regarding assistance to adoptive parents before, during
and after the adoption takes place. If also specifically authorized by the Central
Authority in the country of origin, the adoption body can also provide such
assistance directly in that country.

The HC notably puts in place concrete application of the “subsidiarity principle”,

setting out procedures based on the fact that a child may be considered for inter-
country adoption only if “possibilities for placement of the child within the State of
origin have been given due consideration.”6 Other particularly important elements
of the HC include: the requirement to determine the fitness of applicants to proceed
with an adoption; the implicit prohibition of non-regulated and private adoptions,
since all prospective adopters are to undertake the process through the Central
Authority or an accredited agency; prohibition of contact between prospective
adoptive parents and the child’s parents or other caregiver/s before the child has been
pronounced adoptable and valid consents have been obtained; commitment to
ensuring free and informed consent for adoption with no inducement of any kind;
and the automatic recognition of Hague-compliant adoptions by all States Parties.

The 1993 Convention asserts that authorities must ensure, taking into account the
age and degree of maturity of the child, that he or she has been counseled and

5
Hague Convention, Preamble and Article 1.
6
Hague Convention, Article 4
informed of the effects of the adoption and of his or her consent to the adoption,
where such consent is required; that consideration has been given to the child’s
wishes and opinions; that the child’s consent to the adoption has been given freely,
in the required legal form, and in writing; and that consent has not been induced by
payment or compensation of any kind (article 4(d)). Information on the child’s
origin, in particular the identity of the parents as well as the medical history, should
be preserved, but access by the child to that information is permitted only insofar as
it is allowed by the law of the State where it is held (article 30). Personal data
gathered or transmitted under the 1993 Convention’s provisions is to be used “only
for the purposes for which they were gathered or transmitted,” without prejudice
to article 30 (article 31).

Formal monitoring of the operation of the HC is entrusted to a “Special

Commission” which comprises of all Contracting States.7It has so far met three
times, in 2000, 2005 and most recently in June 2010. The recommendations it makes
are advisory in nature.

There are various other regional instruments as well that protect and promote
children’s rights, particularly in matters of adoption, these are European Convention
on the Exercise of Children’s Rights (ECECR), European Convention on the
Adoption of Children 1967 and Inter-American Convention on Conflict of Laws
Concerning the Adoption of Minors 1984.

Adoptions from non-Hague countries

Despite the ever-growing number of countries that have ratified it, the majority of
inter-country adoptions still take place outside this framework.

Non-Hague countries whose adoption procedures continue to be subject to less

stringent conditions may well be more open to allowing growing numbers of their
children to be adopted abroad: for example, ICAs from Ethiopia continued to grow
substantially throughout the past decade, from a few hundred per year at the start to
over 4,000 in 2009.

Non-Hague countries therefore tend to be relatively attractive partners for inter-

country adoption. If this turns out to result in ever-increasing pressure on those
countries to institute or further develop inter-country adoption to “compensate” for
reductions in Hague-compliant counterparts, rather than genuine instigation to ratify

7
Special Commission on the Practical Operation of the Hague Convention of 29 May 1993
the treaty, the true aims of adoption, including inter-country adoption, would once
again be severely compromised.

Adoption following disasters

The agreed policy of all major international agencies concerned is now that inter-
country adoption should not be envisaged during or in the immediate aftermath of
disaster situations, a position reflected by Guidelines adopted by the United Nations
in 2009.8A 1994 recommendation related to the HC already established that principle
as regards the potential adoption of child refugees.9 The main concern underlying
this approach is that considerable time is needed to ascertain whether children who
may apparently be orphaned or abandoned have in fact simply been separated
involuntarily from their parents or other family members as a result of the disaster.

The January 2010 earthquake in Haiti demonstrated the fragility of its application.
In addition to the fact that Haiti is not a party to the HC, and that its adoption system
was already known to be at unacceptable variance with international standards, three
major factors contributed to the problems encountered in this specific case:

 Adoption orders regarding hundreds of children had already been granted at

the time of the earthquake, but travel documents for these children had not
been issued, and hundreds of other children were at some stage in the adoption
process or had simply been preliminarily and unofficially identified as
adoptable;
 Receiving countries took differing stances in relation to the status of the
children who they were prepared to evacuate and how this was to be done;
 It was not only legally adopted children whose transfer abroad was expedited
but also many whose adoption was hurriedly “signed off” administratively,
under pressure, including some who had not even been matched with
prospective adopters.

8
Guidelines for the Alternative Care of Children, UN Doc. A/RES/64/142
9
Recommendation concerning the application to refugee children and other internationally displaced children of
the Hague Convention of 29 May 1993, adopted 21 October 1994.
 Laws of Adoption in India
At the International level, India has ratified the Convention on the Rights of Child
and the Hague Convention on Inter-Country Adoption of Children. The principal
law relating to adoption in India under the Hindu system is contained in the Hindu
Adoptions and Maintenance Act, 1956 (HAMA).

The Juvenile Justice (Care and Protection of Children) Act, 2000 and The
Amendment Act, 2006 guarantees rights to an adopted child as recognized under
international obligations by all Hague member countries. The JJ Act, 2000, however
did not define ‘adoption’ and it is only by the amendment of 2006 that the meaning
thereof came to be expressed in the following terms:

“2(aa)-‘adoption’ means the process through which the adopted child is

permanently separated from his biological parents and become the legitimate child
of his adoptive parents with all the rights, privileges and responsibilities that are
attached to the relationship”.

The amendment emphasized that adoption under this legislation would allow an
adopted child to become the “legitimate child of his adoptive parents, with the rights,
privileges and responsibilities attached to the relationship. This is a significant move
considering till then, adoption by non-Hindus was guided by the Guardian and
Wards Act, 1890. Minority castes such as Christians, Muslims or Parsis did not
recognize adoption hence the adoptive parents had to remain as guardians to their
adopted children as per the Guardian and Wards Act, 1890.

In exercise of the rule making power vested by Section 68 of the JJ Act, 2000, the
JJ Rules, 2007 were enacted, which now stand repealed by a fresh set of Guidelines
published by Notification dated 24.6.2011 of the Ministry of Women and Child
Development, Government of India under Section 41(3) of the JJ Act. As a matter
of fact, by virtue of the provisions of Rule 33(2) it is the Guidelines of 2011 notified
under Section 41(3) of the JJ Act which will now govern all matters pertaining to
inter-country adoptions virtually conferring on the said Guidelines a statutory
flavour and sanction.

Rule 8(5) prescribes priorities for rehabilitation of a child and it is mentioned that
preference has to be given for placing a child in in-country adoption and the ratio of
in-country adoption to inter-country adoption shall be 80:20 of total adoptions
processed annually by a RIPA, excluding special needs children.
 Rule 8(6) mentions the order of priority which is to be followed in cases of inter-
country adoptions, which is as under:-

(i) Non Resident Indian (NRI)

(ii) Overseas Citizen of India (OCI)

(iii) Persons of Indian Origin (PIO)

(iv)Foreign Nationals

Rule 31 speaks about power of the State Government to constitute a Committee to

be known as the Adoption Recommendation Committee (ARC) to scrutinize and
issue a Recommendation Certificate for placement of a child in inter-country
adoption.
 Concept of Inter-Country Adoption in India
The question regarding the validity of inter-country adoption was first debated in the
well-known case of In Re Rasiklal Chhaganlal Mehta10 whereby the Court held
that inter-country adoptions under Sec 9(4) of the Hindu Adoptions and
Maintenance Act, 1956 should be legally valid under the laws of both the countries.
The adoptive parents must fulfill the requirement of law of adoptions in their country
and must have the requisite permission to adopt from the appropriate authority
thereby ensuring that the child would not suffer in immigration and obtaining
nationality in the adoptive parents’ country.

The Supreme Court of India in a public interest litigation petition, Laxmi Kant
Pandey v. Union of India, had framed the guidelines governing inter-country
adoptions for the benefit of the Government of India. A regulatory body, i.e., Central
Adoption Resource Agency (for short ‘CARA’) was recommended and accordingly
set up by the Government of India in the year 1989.

Since then, the agency has been playing a pivotal role, laying down norms both
substantive and procedural, in the matter of inter as well as in country adoptions.
The said norms have received statutory recognition on being notified by the Central
Govt. under Rule 33 (2) of the Juvenile Justice (Care and Protection of Children)
Rules, 2007 and are today in force throughout the country, having also been adopted
and notified by several states under the Rules framed by the states in exercise of the
Rule making power under Section 68 of the JJ Act, 2000.

In the case of Mr. Craig Allen Coates v. State through Indian Council for Child
Welfare and Welfare Home for Children11the Court held that where the adoptive
parents fail to establish clearly the motive for adopting a child from another country,
then the adoption process would be barred and be declared as mala fide and that
CARA should ensure more stricter guidelines in this regard.

One of the most significant issues in inter-country adoptions is finding prospective

adoptive parents, preferably of Indian origin. The Supreme Court of India, in
the Karnataka State Council for Child Welfare v. Society of Sisters of Charity St
Gerosa Convent, had held that the rationale behind finding Indian parents or
parents of Indian origin is to ensure the well-being of the children and that they

10
AIR 1982 Guj. 193
11
162(2009) DLT 605
grow up in Indian surroundings so that they can retain their culture and heritage. The
best interest of the children is the main and prime consideration.

Bombay High Court in a recent judgment, Varsha Sanjay Shinde & Anr. v. Society
of Friends of the Sassoon Hospital and others,12held that once a child is approved
by an Oversees couple after the due procedure is followed, the same child cannot be
shown to other Indian parents and that such Indian Parents then cannot claim any
right or priority to get the child merely because they are Indian Parents and
preference should be given to them over Overseas Indians and Foreign Couples.
Although the main issues was decided the Court kept the petition pending in order
to see the compliance of directions given by the Court for giving the child to the
Overseas Indian Couple and to ensure that the Indian Parents (Petitioners) also get a
child expeditiously.

Court further laid down following guidelines for in-country and inter-country
adoptions to be read and applied in consonance with Guidelines of 2011:

(i) All the concerned Agencies viz RIPA, Specialized Adoption Agencies, SARA,
ARC, AFAA to scrupulously follow the Guidelines which have been laid down in
2011

(ii) Though there is no specific number mentioned in the Guidelines as to the number
of Indian parents to whom the child should be shown, within a period of 3/4 weeks,
the child should be shown to as many Indian parents as possible and, secondly, at a
time, the child should be shown only to one parent and not multiple number of
parents as has been done in the present case.

(iii) Only if the child is not accepted by Indian parents and the Adoption Agencies
on account of their experience come to conclusion that the child is not likely to be
taken in adoption by Indian parents then, in that case, it should be shown to foreign
parents.

(iv) When the child is shown to the foreign parents, it should be shown in the list of
priorities which are mentioned in the said Guidelines.

(vi) ARC and SARA should work not in conflict but in coordination with CARA, it
being the Centralized Nodal Agency.

12
Writ Petition no. 9227 of 2013 Decided on 18th October, 2013
Another latest judgment13is that of Delhi High Court where the issue involved was
whether adoptions made directly by biological parents of a child without
intervention of CARA are valid in eyes of law. It was the argument of counsels of
petitioners that the intercession of CARA was mandated only in cases of those
children who are orphaned or abandoned by their biological parents. It was the stand
of CARA that the legislative mandate for the same is found in the amendment made
in 2006 to the Juvenile Justice (Care and Protection of Children) Act, 2000 by
introducing Sub-Section (2) in Section 41 of the JJ Act. It is thus contended that the
rehabilitative measures for children in need of care and protection through means of
adoption applies, not only to orphaned and abandoned children, but also to,
surrendered children. In other words, according to the stand taken by CARA, the
term “surrendered children” would include “children which are given in adoption by
their biological parents directly to the adoptive parents”.

Court said that even in absence of any guidelines court is not disempowered to direct
the State to carry out an investigation in the interest of child both in country of origin
and receiving country through a recognized agency. Court, however, left the matter
to the wisdom of a larger bench in order to answer the following questions that came
up in the petition:

(i) Whether the term “surrendered child” will include those children who are
directly taken in adoption from their biological parents without the intercession of
any specialized agency or child welfare committee?

(ii) Whether, in case of direct adoption, the 2011 Guidelines and the provisions of
Section 41(3) and (4) of the JJ Act are applicable?

(iii). If the answer to issue no.(i) and (ii) is in the affirmative, to what extent the 2011
Guidelines would apply to direct adoptions?

(iv)Can the court direct State to discharge its duty in its capacity as parens patriae
to carry out an investigation so as to safeguard the interest and/or rights of the child
conferred on him under Article 21 of the Constitution of India?

13
Dr. Abha Aggarwal v. CARA W.P. NO. 2701 of 2012 & Promila Ann Massey v. CARA; W.P. No. 3279 of 2012
(the two petitions were clubbed togetherand disposed as one) decided on 24 Jan 2013
 Central Adoption Resource Authority (CARA)
It is an Autonomous Body under the Ministry of Women and Child Development,
Government of India and is responsible for both in-country and inter-country
adoptions in India. The CARA Guidelines requires that every application from a
foreigner wishing to adopt a child must be sponsored by a social or child welfare
agency recognized or licensed by the government of the country in which the
foreigner is resident. The agency should be recognized by CARA.

The CARA guidelines depict in the beginning that it encourages in country adoption
rather than inter-country adoption and only where the child finds no suitable home
in the country, trans-national adoption would be considered.

The guidelines also provide that all Child Care Institutions (CCI) must be registered
under the provisions laid down under the Juvenile Justice (Care and Protection of
Children) Amendment Act, 2006 as per Section-34 (3). The State Government
shall recognize suitable CCI’s as specialized adoption agencies under Section
41(4) of the Juvenile Justice Amendment Act, 2006. The specialized adoption
agencies can turn into agencies for inter-country adoption only when they have
proper infrastructure for normal adoptable children as well as children with special
needs, and have quality child care services. In addition to these, they must comply
with all the requirements of CARA.

Who are adoptable for inter-country adoption?

As per CARA guidelines and the Juvenile Justice (Care and Protection) Amendment
Act 2006, only three types of children are recognized as adoptable. These include
children who are orphans and are already under the care of some specialized
adoption agency, abandoned and those who are surrendered. In case of an abandoned
child below two years, such declaration shall be done within a period of sixty days
from the time the child is found. For an abandoned child above two years of age,
such a declaration shall be done within the period of four months. In case of a
surrendered child, two months reconsideration time shall be given to the biological
parent or parents after surrender before declaring the child legally free for adoption.
 Problems subsisting in inter-country adoptions

Child trafficking in the guise of transnational adoption

The biggest threat to the child in inter-country adoption is becoming a victim of child
trafficking racket. After the domestic procedure for adoption by the foreign adopting
parents is over, it becomes more a question of international law and international
treaties to look after the well being of the child. Moreover, the lack of awareness
regarding the legal procedures for inter-country adoption has given rise to many fake
adoption agencies. Children are sold abroad by providing false information about
them, falsifying documents, and making use of loopholes in the adoption guidelines
prescribed by the Supreme Court.

Post adoption negligence

When the child is given for inter-country adoption, post adoption follow-ups become
increasingly difficult. Even though CARA guidelines outline the role of the Indian
diplomatic missions, foreign accredited agencies and professional social workers in
protecting a child from post adoption maltreatment, it has virtually not helped
anyone.

Post adoption domestic succession

Once the testator dies after bequeathing the property in the name of the child who
had been given in adoption, the identity of the child has to be proved. In cases where
there is a challenge to the succession by other survivors, the procedure becomes even
tougher. The country of residence will take the matter as per the laws of domicile
and if such succession becomes legally void due to any unfortunate mistake, the
adopted child would never be able to claim legal rights of the property and thereby
has to suffer great financial, physical and emotional agony. Unfortunately India has
not entered into any agreement or treaties to solve such succession matters. The
British law still rules the courts in such cases. Every adopted child develops a strong
inclination to know his/ her roots at some point of time. Such legal turmoil over
successions from the biological family may even leave the adoptee in great
frustration.
Post adoption identity crisis
Juvenile Justice Care and Protection(Amended) Act), 2006 specifies that a child can
be adopted by any individual, irrespective of his/her marital status, by parents who
wish to adopt a child of same sex irrespective of the number of living biological sons
or daughters, or by couples who have no children of their own. It has made adoption
a simpler and universal law than the traditional laws. The law is still tricky, however,
in case of inter-country adoptions as prospective foreign parents still have to first
take the role of guardians and take the child to their country. The process has to be
finished there as neither the new law nor any existing law specifically mentions a
procedure in cases of overseas adoption. Once the child becomes ready for overseas
adoption, the international law needs to recognize Indian adoption procedure and the
child is adopted according to the laws of the country of adoptive parents’ residence.
The child becomes the ultimate sufferer unless the “guardians” turn real parents as
per the law of his new residence.

Guidelines lack force of law

CARA guidelines most often lack the force of law. Hence the parties never really
remain obliged to follow the guidelines or even the Indian law in case the habitual
resident belongs to a country which is not a member or has relinquished its
membership from the convention. The guidelines fail to ensure the health, safety and
adjustment of the child after he/she has left India. It should be noted that as the
numbers of adoptions increase, the number of regulations followed are lesser. The
guidelines should have put a maximum number of adoption procedures a month, by
each adoption agency so that social workers, the authorities, and voluntary
coordination committees would not be overburdened. Lack of regular checks at the
adoption agencies and the manner in which they operate can also lead to many
problems.

Since the CARA guidelines mention nothing about any penal actions against
unrecognized adoption agencies, child trafficking in the name of inter-country
adoption has gotten an easy way out.
 Recommendations
Inter-country adoption has to be dealt with great care as it often opens up
floodgates of child trafficking, child exploitation and sexual harassment
of children. The suggestions are:

 CARA guidelines should have two chapters separately dealing with

in country and inter-country adoptions.
 Penal offences must be included in case of any sort of failure by the
agencies to comply with the rules and regulations.
 Licensing procedure for the adoption agencies should be made
stricter.
 Awareness programmes should be arranged for the poor, needy
women and parents in case they want to give their child up for
adoption, to go through the correct legal procedures rather than
becoming the victims of touts.

Specific recommendations in relation to inter-country adoption:

 prevent any risk of children becoming stateless in the inter-country

adoption process, inter alia by ensuring that they will receive the
nationality of their adoptive parents;
 adopt a particularly vigilant approach during and following
emergency situations to prevent potential abuses and violations of
international obligations.
 Non-Hague compliant countries should be encouraged to ratify the
treaty.
 Professional counseling must be done by a team consisting
of recognized child psychologists, professional social workers and
legal practitioners who are familiar with the international law of the
receiving country.
 The immigration procedure for the adopted child must be done
carefully in order to prevent child trafficking.
 Before the adoption case is opened it should be mandatory to check
the bilateral relationship of the receiving country with India.
 Conclusion
International agreements have been developed to address the changing face of
adoption. The standards and safeguards they establish are essentially directed
towards ensuring four things:

1. that the adoptability of children is always determined in the right way.

2. that intercountry adoption is considered and carried out for the right reasons.
3. that each child is adopted by the right person(s).
4. that the adoption is carried out in the right manner.

Inter-country or transnational adoption may become the best option for orphan
children to start a fresh life in a new country. But when the country of domicile for
these children does not have any proper law to show them their destiny, violation of
their rights is very much definite to take place. The country desperately needs better
laws and guideline for inter-country adoption. The authorities need to ensure
thorough checks of every adoption agency to ensure that they are protecting the
child’s rights as has been provided in the constitution and the Juvenile Justice Care
and Protection Act, 2006. Every child has a right to life, home and education. It is
essential that the authorities not only make laws to provide safer transnational
adoption to the children but also to ensure safety of the child even abroad.

It is a common situation in India that the judges dealing with adoption cases,
especially in small towns and cities in India, are not predominantly acquainted with
the interpretation of the inter-country adoption guidelines. Hence, in this regard, a
uniform but stringent procedure must be developed which can be easily followed
and observed keeping in regard the human spirit. As has been seen, Courts, though
slowly and steadily, are approaching every possible dimension of this issue and are
laying down norms for eliminating any legal or emotional havoc for the child or his
biological and adoptive parents.

Unless agencies systematically refuse to operate in the framework of systems that

are in clear violation of international norms, they may find themselves complicit in
abuses. If prospective adopters do not receive accurate and dispassionate
information on inter-country adoption needs, they will not be able to adjust their
plans and expectations accordingly. Thus, each actor in the process carries a
particular responsibility, and all need to, and must, seek cooperation with one
another to maximize the impact of their efforts.