INTER-COUNTRY ADOPTIONS

Compiled by:
Ahmar Afaq
Assistant Professor,
Symbiosis Law School Hyderabad
INTRODUCTION:

Adoption 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. Adoption establishes 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. It is one of the means of solving the problems of
destitute and orphans. It is also a way of satisfying the interest of person who is
childless. It is prevalent in every nook and corner of the world. In India also,
adoption has been prevailing since ages. Even the great epics like Ramayana and
Mahabharata depicted adoption. Though the practice of adoption has been
exercised from ages, the concept of Inter-country Adoption is relatively a new
concept.

Inter-country adoption is the most sensitive, controversial and complex aspect of

adoption1. It truly depicts the concept of “Home to Homeless and Child to
Childless”. Time and again, it is said that children are the most important asset of
the nation2. Presently, the whole world recognizes inter-country adoption as “a
placement of the displaced, orphaned and abandoned children”. It significantly
emerged as the most debatable issue in the field of Private International Law .As
quoted by Alstein and Simon in his book named “Inter-country Adoption” that it
began primarily as a North American philanthropic response to the devastation of

1
Law Commission of India, 153rd Report on Inter-Country Adoption ( August,1994).
2
Laxmikant Pandey v. Union of India (AIR 1992 SC 118).
Europe in World War II that resulted in thousands of orphaned children 3. The need
for inter-country adoption was initiated in order to find families for the abandoned,
displaced and orphaned children after the Second World War. Justice P.N
Bhagwati also in Lakshmikant Pandey Case made an observation that falling
fertility rate in the west and unavailability of domestic children have driven the
foreign parents to adopt children from the foreign state.4

INTERNATIONAL AGREEMENTS:

Several international instruments have focused either in whole or in part on the

issue of inter-country adoption. The purposes of these instruments with respect to
inter-country adoption are diverse. The main aim of the United Nations
Convention on the Reduction of Statelessness of 1961, for instance, is to protect
the interests of minors and, in particular, to ensure that children adopted through
inter-country procedures do not become stateless. The United Nations Optional
Protocol to the Convention on the Rights of the Child on the Sale of Children,
Child Prostitution and Child Pornography, aims at criminalizing the improper
inducement of consent, as an intermediary, for the adoption of a child. The section
below reviews in chronological order some of the multilateral instruments that
have dealt with the issue of inter-country adoption.

1. United Nations Convention on the Reduction of Statelessness (1961)

3
Prof. Lakshmi Jambholkar ,Select Essays on Private International Law 138,(Universal law Publishing Co. Pvt. Ltd.,
New Delhi, 3rd edn., 2011)
4
Lakshmikant Pandey v. Union of India (AIR 1984 SC 469)
The Convention on the Reduction of Statelessness contains one paragraph that
refers to inter-country adoption. Paragraph 1 of article 5 states that if “the law of a
contracting State entails loss of nationality as a consequence of any change in the
personal status of a person such as marriage, termination of marriage, legitimation,
recognition or adoption, such loss shall be conditional upon possession or
acquisition of another nationality.”5 The Convention entered into force in
December 1975 and, as of January 2007, had been ratified by 33 countries. Three
additional countries were signatories but had not yet ratified it. None of the
countries that have ratified the Convention has made any declaration or
reservations in relation to the application of the paragraph relevant to inter-country
adoption.6

2. Convention on Jurisdiction, Applicable Law and Recognition of Decrees

Relating to Adoptions (1965)

This Convention was one of the first multilateral instruments seeking to establish
common provisions on jurisdiction, applicable law and recognition of decrees
relating to adoption. As such, it is worthy of note, despite the fact that the three
Member States that ratified it—Austria, Switzerland and the United Kingdom—
later denounced it, implying that the Convention no longer has effect for them.

One of the essential features of the Convention is that it provides guidelines as to

the authority responsible for various aspects of the adoption procedure. The
5
The United Nations Convention on the Reduction of Statelessness, 1961, Article 5.
6
The United Nations, Report on Child Adoption: Trends and Policies, at p. 53 (March,2010)
jurisdiction to grant an adoption is vested in the authorities of the State in which
the adoptive parents either have their habitual residence or are nationals. These
authorities may grant an adoption only when it is in the best interests of the child
and only after having carried out a thorough inquiry relating to the prospective
adoptive parents, child and birth family (art. 6). 7 The authorities of the State in
which the adopted person or the adoptive parents reside, as well as the State in
which the adoption was granted, have jurisdiction to annul or revoke the adoption
(art. 7).8 The Convention also stipulates in article 8 that contracting States must
recognize, without further formality, every adoption governed by the Convention
and granted by an authority having jurisdiction under the first paragraph of article
3.9

The Convention does not establish specific requirements for the prospective
adoptive parents, nor does it provide a detailed description of the legal
ramifications of adoption. The Convention applies only to persons who are
nationals and habitual residents of one of the contracting States. As in the
European Convention on the Adoption of Children, the prospective adopted
persons must be minors and single.10

3. United Nations 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)

7
The Convention on Jurisdiction, Applicable Law and Recognition of Decrees Relating to Adoptions, 1965 (Article 6)
8
The Convention on Jurisdiction, Applicable Law and Recognition of Decrees Relating to Adoptions, 1965 (Article 7)
9
The Convention on Jurisdiction, Applicable Law and Recognition of Decrees Relating to Adoptions, 1965 (Article 3)
10
Supra Note 6 at p. 54.
 This Declaration was adopted by General Assembly resolution 41/85 of 3
December 1986. The Declaration recognizes that a “child should not, as a result of
foster placement, adoption or any alternative regime, be deprived of his or her
name, nationality or legal representative unless the child thereby acquires a new
name, nationality or legal representative” (art. 8). It also establishes the principle of
subsidiarity, that is, that an intercountry adoption should only take place when
suitable adoptive parents cannot be identified in the country of origin of the child
(art. 17).11

The Declaration calls upon the Governments of all Member States to “establish
policy, legislation and effective supervision for the protection of children involved
in inter-country adoption” (art. 18). The Declaration indicates that placements
should be made through competent authorities or agencies with the same
safeguards and standards as national adoptions and that in no case should an
adoption result in improper financial gains for those involved (art. 20). The
Declaration further states that inter-country adoption should not be considered
before it has been established that the child is legally free for adoption and that all
necessary documentation, such as the consent of the competent authorities, is
available. The Declaration requires Member States to ascertain that the adopted
child is able to migrate, to join the prospective adoptive parents and to obtain their
nationality before authorizing an inter-country adoption (art. 22). The Declaration
calls for giving all due weight to the laws of the States in which the child and the
prospective adoptive parents are nationals. The Declaration also requires Member
States to consider the child’s cultural and religious background and interests (art.
24).12
11
Ibid.
12
Ibid.
 4. United Nations Convention on the Rights of the Child (1989)

The Convention on the Rights of the Child dedicates several paragraphs to the
issue of inter-country adoption. Under article 21 (c), for instance, States parties are
required to ensure that children adopted through inter-country procedures enjoy the
same safeguards and standards as children adopted domestically.13 The Convention
also recognizes the principle of subsidiarity (art. 21 (b)) and indicates that States
parties should take all appropriate measures to ensure that, in the case of inter-
country adoptions, placement does not result in improper financial gains for those
involved (art. 21 (d)).14 The Convention, similarly to the United Nations
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, recognizes that the best interests of the child should be the
paramount consideration.

The Convention entered into force in September 1990. As of January 2007, 193
countries were parties to the Convention. Several of the ratifying States have
entered reservations to the articles relevant to adoption. For instance, Egypt,
Jordan, Kuwait, the Syrian Arab Republic and the United Arab Emirates expressed
reservations with respect to all clauses and provisions relating to adoption, because
they do not include adoption among the ways and means of protecting and caring

13
The United Nations Convention on the Rights of the Child, 1989 (Article 21 (c))
14
The United Nations Convention on the Rights of the Child, 1989 (Article 21 (d))
for children. Likewise, Argentina expressed reservations to subparagraphs (b), (c),
(d) and (e) of article 21 of the Convention and declared that these subparagraphs
do not apply within its jurisdiction, indicating that a stricter mechanism for the
legal protection of children in matters of inter-country adoption was necessary in
order to prevent trafficking in, and the sale of, children. 15

5. Convention on Protection of Children and Co-operation in Respect of

Inter-country Adoption (1993)

This Convention, frequently referred to as the Hague Convention, is probably

the major multilateral instrument regulating inter-country adoptions. It has three
main objectives. The first is to establish safeguards to ensure that inter-country
adoptions take place in the best interests of the child. The second is to prevent the
sale of, or traffic in, children through a system of cooperation among contracting
States. The third objective is to secure the recognition among contracting States of
adoptions made in accordance with the Convention (art. 1). 16 The Convention
applies only to children who are habitually residents in one contracting State—the
State of origin—and are moved to another contracting State—the receiving State—
either after their adoption or for the purpose of adoption (art. 2). 17 Only adoptions
that create permanent child-parent relationships fall under the jurisdiction of the
Hague Convention.

15
Supra Note 5 at p. 54
16
Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption, 1993, (Article 1)

17
Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption, 1993, (Article 2)
 The different responsibilities of States of origin and States of destination are
outlined in chapter II of the Hague Convention. However, unlike many previous
multilateral instruments, the Hague Convention does not simply delineate the rules
of jurisdiction and applicable law but recognizes the need for coordination and
direct cooperation between countries. Authorities in the State of origin are charged
with establishing whether a child is adoptable and whether the placement is in the
child’s best interests (art. 4).18 The State of origin is also responsible for
ascertaining that a permanent family cannot be found in the child’s own country
and that the persons, institutions and authorities whose consent is necessary for the
adoption have given their consent freely and are duly informed of the effects of
their consent. The competent authorities of the receiving States are responsible for
determining that the prospective adoptive parents are “eligible and suited to
adopt,” that they have been appropriately counselled and that the child is or will be
authorized to reside permanently in the receiving State (art. 5).19

The Hague Convention calls upon contracting States to designate a central

adoption authority and outlines the roles and responsibilities of this authority in
chapter III. Specifically, the Convention calls on central authorities to cooperate
with each other to protect children (art. 7). 20 Central authorities are required to take
measures to prevent improper financial or other gains in connection with an
adoption and to deter all practices contrary to the objectives of the Convention (art.
8). 21Central authorities are charged with collecting and exchanging information
regarding the child and the prospective adoptive parents, facilitating the adoption

18
Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption, 1993 (Article 4)
19
Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption, 1993 (Article 5)
20
Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption, 1993 (Article 7)
21
Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption, 1993 (Article 8)
proceedings and promoting the development of adoption counselling (art. 9). 22 The
central authorities of both the State of origin and the receiving State must agree
before an adoption can proceed (art. 17). 23Once an adoption has been authorized,
the central authorities of both the receiving State and the State of origin are
required to ensure the smooth transfer of the child (art. 19). 24 In cases where the
adoption takes place after the transfer of the child, the central authorities of the
receiving State are responsible for taking the necessary measures to protect the
child’s best interests, including, if necessary, finding temporary care for the child,
arranging a new placement or returning the child to his or her country of origin
(art. 21).25

Public authorities or other bodies duly accredited in a contracting State can also
perform some of the responsibilities of central authorities outlined in article 9.
These accredited bodies are required to pursue only non- profit objectives and must
be directed and staffed by persons qualified to work in the field of inter-country
adoption. Accredited bodies are subject to supervision by the competent authorities
of their State as to their composition, operation and financial situation (art. 11). 26
Paragraph 2 of article 22 of the Hague Convention, however, indicates that the
functions of the central authority may also be performed by non-accredited bodies
or persons as long as these “meet the requirements of integrity, professional
competence, experience and accountability of that State and are qualified by their
ethical standards and by training or experience to work in the field of inter-country
adoption.” Contracting States may refuse to allow such non-accredited agencies to
arrange adoptions on their territory. The recognition of the role of accredited and

22
Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption, 1993 (Article 9)
23
Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption, 1993 (Article 17)
24
Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption, 1993 (Article 19)
25
Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption, 1993 (Article 21)
26
Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption, 1993, (Article 11)
non-accredited bodies stems from the “present reality that private organizations
play an important role as intermediaries in the inter-country adoption process”.27

As did many previous instruments, the Hague Convention dedicates a chapter to

the legal ramifications of adoption. According to article 26, adoption creates a
legal child- parent relationship between the adopted person and his or her adoptive
parents and terminates any pre- existing legal relationships between the adopted
person and his or her birth parents. 28 However, where an adoption granted in the
State of origin does not have the effect of terminating pre-existing legal parent-
child relationships, the receiving State can terminate those relationships, under the
condition that the relevant persons, institutions and authorities—including, where
appropriate, the birth parents and the child—freely consent and are duly informed
of the effect of their consent (art. 27).29With regards to the recognition of
adoptions, contracting States are called upon to recognize all adoptions made in
accordance with the Convention (art. 23). 30 However, they may reserve the right
not do so by applying article 39, paragraph 2 (art. 25).31

Just as the United Nations Convention on the Rights of the Child, the Hague
Convention also calls upon contracting parties to undertake all appropriate
measures to ensure that placements do not result in improper financial gains.
Specifically, paragraphs 1 and 2 of article 32 establish that “no one shall derive
improper financial or other gain from an activity related to an inter-country
adoption. Only costs and expenses, including reasonable professional fees of
persons involved in the adoption, may be charged or paid.” The remuneration of
27
Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption, 1993, (Article 22)
28
Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption, 1993, (Article 26)
29
Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption, 1993, (Article 27)
30
Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption, 1993, (Article 23)
31
Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption, 1993, (Article 25)
directors, administrators and employees of bodies involved, furthermore, should
not be unreasonable given the services rendered (art. 32 (3)). 32 The Convention
specifies that direct contact between the adoptive parents and birth parents is
generally prohibited (art. 29) and that adoptive parents are responsible for the cost
of translation of any documents required by the authorities of the State of
destination (art. 34). The Convention entered into force in May 1995. As of
January 2007, 70 States had ratified or acceded to the Hague Convention, and three
States—Ireland, the Russian Federation and the United States—were signatories to
the Convention but had not yet ratified it.33

6. United Nations Optional Protocol to the Convention on the Rights of the

Child on the Sale of Children, Child Prostitution and Child Pornography
(2000)

The Optional Protocol to the Convention on the Rights of the Child was adopted
at the fifty-fourth session of the General Assembly of the United Nations on 25
May 2000.34 Paragraph 1 (a) (ii) of article 3 of the Optional Protocol calls on States
parties to ensure that coercive adoption is fully covered under their criminal or
penal law, regardless of whether such an offence is committed domestically or
transnationally and whether it is committed on an individual or organized basis. 35
Specifically, the article criminalizes the act of “improperly inducing consent, as an
intermediary, for the adoption of a child” (art. 3, para. 1 (c) (ii)). Paragraph 5 of
article 3 of the Optional Protocol further calls on States parties to take all
32
Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption, 1993 (Article 32)
33
Supra Note 5 at p. 56
34
Ibid.
35
The United Nations Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child
Prostitution and Child Pornography, 2000, (Article 3).
appropriate legal and administrative measures to ensure that all persons involved in
the adoption act do so in conformity with applicable international legal
instruments.36

The Optional Protocol entered into force in January 2002 and by January 2007, it
had been ratified by 117 States. Some countries have advanced reservations to
some of the paragraphs of article 3 relevant to adoption. Argentina, for instance,
stated that it “has not signed international instruments on the international adoption
of minors . . . and does not permit international adoption of children domiciled or
resident in its jurisdiction”. The Government of the Republic of Korea specified
that it understands article 3 (1) (a) (ii) to be applicable only to States that are
parties to the Convention on Protection of Children and Co-operation in Respect of
Inter-country Adoption.37

REGIONAL RECOGNITION:

Regional agreements have been seen as a means of harmonizing laws, of

identifying common principles and practices and as a way of minimizing the
conflicts of jurisdiction that can occur in inter-country adoptions. Two major
regional agreements are examined in this chapter: the European Convention on the
Adoption of Children of 1967 and the Inter-American Convention on Conflict of
Laws Concerning the Adoption of Minors of 1984.

36
The United Nations Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child
Prostitution and Child Pornography, 2000, (Article 3).
37
Supra Note 5 at p. 56-57.
Inter-country Adoption was defined in the European Seminar on Inter-country
Adoptions, 1960 as “adoption in which the adopters and the child do not have the
same nationality as well as in which the habitual residence of adopters and the
child is different.38

1. European Convention on the Adoption of Children (1967)

The European Convention on the Adoption of Children was developed with the
purpose of harmonizing adoption laws among Member States of the Council of
Europe. The Convention calls for common principles and practices to promote the
welfare of adopted children and aims to harmonize some of the principles
governing adoption, the procedures affecting it, and its legal consequences. The
Convention only applies to legal adoptions involving unmarried minors (art. 3).39

The Convention contains a core of essential provisions which each State party
undertakes to incorporate into its legislation, as well as a list of supplementary
provisions which States parties are free to adopt or not. Among its essential
provisions, the Convention stipulates that adoption must be granted by a competent
judicial or administrative authority (art. 4), that birth parents must freely consent to
the adoption (art. 5) and that the adoption must be in the best interests of the child
(art. 8). Article 15 requires States parties to make provisions to prohibit any

38
Manjeet Kumar Sahu, Inter-country Adoption and Its Judge-Centric Approach In Indian Legal system, available at:
http://ssrn.com/abstract=2757448 (Visited on 3 August, 2016)
39
The European Convention on the Adoption of Children, 1967, (Article 3)
improper financial advantages arising from the adoption of a child. The
Convention requires prospective adoptive parents to be between 21 and 35 years of
age (art. 7) and limits joint adoption to married couples (art. 6). Some procedural
rules are also outlined among the essential provisions of the Convention. One such
requirement is that competent authorities conduct a series of enquiries to ensure the
suitability of the prospective adoptive parents (articles 8 and 9). The Convention
also addresses the procedures for revoking or annulling an adoption (art. 13) and
for sharing the information collected through the enquiries (art. 14).40

With respect to the legal ramifications of adoption, article 10 of the Convention

recognizes that adoption terminates all rights and obligations between the adopted
person and his or her birth parents and that adopted persons have the same rights
and obligations as legitimate offspring, including the right to inheritance. With
regard to the acquisition of the adoptive parents’ name, the Convention stipulates
that, as a general rule, the adopted child should acquire the surname of the adoptive
parents either in substitution for, or in addition to, his or her own name. Article 11
recognizes that, where the adopted person does not have the same nationality as the
adoptive parents, the acquisition of nationality of the adoptive parents should be
facilitated and any eventual loss of nationality resulting from an adoption should
be conditional upon the possession or acquisition of another nationality.41

Among the supplementary provisions, the Convention calls on Member States

to ensure that adoptions are completed without disclosing the identity of the

40
Supra Note 5 at p. 57
41
Id. At p. 58
adoptive parents to the child’s birth family and to enable adoption proceedings to
take place in camera (art. 20).

The Convention entered into force in April 1968 and, as of January 2007, had been
ratified by 18 of the 46 Member States of the Council of Europe, while three
Member States were signatories but had not yet ratified it. Some of the countries
that ratified the Convention made reservations to specific articles or paragraphs.
Countries such as Romania and the former Yugoslav Republic of Macedonia, for
instance, declared that instead of the age requirements set out in article 7,
paragraph 1 of the Convention, they would apply the age requirements established
in their own legislation.42

In Pini and Others v Romania43 the European Court of Human Rights dealt with
the inter-country adoptions of two Romanian girls by the applicants, who were two
couples from Italy. In this case, a conflict of interests existed between the wishes
of the children and the applicants. The European Court of Human Rights decided
that the wishes of the children and their best interests carried significant weight.
The European Court of Human Rights stated that Article 8 of the Council of
Europe’s 1950 Convention for the Protection of Human Rights and Fundamental
Freedoms does not guarantee a right to adopt and that the aim of adoption is to
provide a child with family. Moreover, it has also been held by the court that
“family life” exists between an adopted children and adoptive parents.

42
Ibid.
43
[2004] EHRR 275
2. Inter-American Convention on Conflict of Laws Concerning the Adoption of
Minors (1984)

This Convention was developed with the purpose of harmonizing national laws,
regulations and procedures regarding the adoption of minors, addressing
conflicting stipulations within these laws and regulations, and identifying clear
guidelines as to the authority responsible for various aspects of the adoption
procedure. The Convention applies only when the prospective adoptive parents are
domiciled in one State party and the adopted person is domiciled in another State
party.

Instead of establishing specific statutory requirements, the Convention defines the

jurisdiction of the various authorities involved in the adoption procedure. The
authorities of the State of habitual residence of the child at the time of adoption
are, for instance, considered competent to grant the adoption (art. 15) and to decide
on its eventual annulment or revocation (art. 16). The laws of the country of
habitual residence of the prospective adopted child also govern the “capacity,
consent, and other requirements for adoption, as well as those procedures and
formalities that are necessary for creating the relationship” (art. 3). The laws of the
country of domicile of the adoptive parents govern the requirements relating to the
age and marital status of the prospective adoptive parents, as well as the consent of
any eventual spouse of the adoptive parent (art. 4). The Convention recognizes that
the conversion of a simple adoption into a full adoption can be governed either by
the laws of the country of habitual residence of the adopted person at the time of
the adoption or by the laws of the country in which the adoptive parents have their
domicile (art. 13).44

In describing the effects of adoption, the Convention distinguishes between full

adoption and simple adoption. In relation to full adoption, the Convention
recognizes that the relations between the adoptive parents and the adopted child are
equivalent to those between biological offspring and their parents (art. 9). The
termination of ties with the family of origin and the right to succession are also
recognized (articles 9 and 11). In the case of simple adoption, the effects of the
adoption are determined by the laws of the country of habitual residence of the
adoptive parents (art. 10). The potential loss of nationality of an adopted child is
not addressed in the Convention. As of January 2007, six Member States had
ratified the Convention, while an additional seven Member States were
signatories.45

LEGAL PROVISION IN INDIA:

Indian legislation does not any specific provision that lays down principle for inter-
country adoption. Even, the Supreme Court in the absence of any law regulating
inter-country adoption refers to Article 15, 34 and 39 of the Constitution and
Sections 7 to 9 of Guardian and Wards Act, 1890 for issuing directions to regulate
inter-country adoption.

44
Supra Note 5 at p. 58
45
Ibid.
 The Government of India under Clause 23 and 24 of the Adoption of Children
Bill, 1980 tried to insert provision for inter-country Adoption for the first time and
treated it as an unlawful act but it failed due to un-acceptance of some provisions
of the bill by Parsis, Christians and Muslims. The Central Government intended to
frame a uniform civil code which was ultimately rejected. The Law Commission of
India in its 153rd report recommended for Inter-Country Adoption Act in the year
1994 but was never put into consideration. The Central Government dated 24th
June, 2011 notified the Guidelines issued by the Central Adoption Resource
Authority (CARA) to provide for the regulation of adoption of orphan, abandoned
or surrendered.46

JUDICIAL RECOGNITION AND DEVELOPMENT:

The Supreme Court and the High Courts in India have acknowledged that adoption
offers the remedial measures for the development of neglected, orphaned and
abandoned children both in terms of physical requirement and emotional needs.

In re Rasikalal Chhaganlal Mehta47, the Gujarat High Court stated that inter-
country adoption might have slight reflection of international racket trading of
children and selling them out at profit but sanctioning inter-country adoption
would be a hurry step. The Court directed to observe guidelines laid down by
reputed and recognized national and international organizations. Moreover Justice
Divan and Justice P.D. Desai in this case stated that it is essential to have legally
valid adoption as per laws of both the countries if not then either it will be an

46
Supra Note 38, at p. 5.
47
AIR 1982 Guj 193
“abortive adoption” which has no validity in either of the countries or a “limping
adoption”, which has recognition in one country but having no validity in another.

Later on, The Supreme Court in a Landmark judgment of Lakshmikant

Pandey’s case for the first time laid down guideline for the inter-country adoption.

ANALYSIS OF LAKSHMIKANT PANDEY v. UNION OF INDIA:

FACTS OF THE CASE:

Lakshmikant Pandey, a practicing Lawyer in the Supreme Court complained about

malpractices indulged in by social organizations and voluntary agencies engaged in
the work of offering Indian children in adoption to foreign parents in the case of
Lakshmikant Pandey v. Union of India48 and sought relief restraining Indian based
private agencies from carrying out further activity of routing children for adoption
abroad. He also asked for direction by the Government of India, the Indian Council
of Child Welfare and the Indian Council of Social Welfare to carry out their
obligations in the matter of adoption of Indian children by foreign parents. The
Supreme Court treated this as a writ petition and laid down procedure for the
adoption of children by the foreigners.

It was also stated in the case that the law of the country of prospective adoptive
parent shall permit legal adoption of the child and that no such legal adoption
being concluded, the child would acquire the same legal status and rights of
inheritance as a natural born child and would be granted citizenship in the country
48
AIR 1992 SC 118
of adoption and it should file along with the application for guardianship, a
certificate reciting such satisfaction.

Various Child Welfare agencies contemplating the judgment of the

abovementioned case filed writ petition under Article 32 of the Constitution of
India considering various ground that:
I. The adopted children shall be allowed to retain their citizenship till they attain
the age of majority.

II. Birth certificates have to be issued on the basis of attested copies of Court's
certificate (decree), adoption deed or affidavits of the officials of the licensed
agencies.

III. Quota fixed for placement of children with the Indian families shall be
quashed.

IV. Show cause notice need to be issued before the cancellation of registration/
licence to registered agency.

V. Setting up of CARA should be stayed.

VI. To enable the agencies to maintain high standards of care for the children,
expenses by about 25% to be revised and annual escalation of 10% be made.

VII. Transfer of children from statutory homes to recognized agencies for

placement be allowed.49

CONTENTIONS BY THE PETITIONER:

49
Supra Note 38 at p. 6.
 1. The Petitioners tried to highlight malpractice on the ground of child being
adopted and contended that All Government/juvenile homes, nursing homes
and Hospitals (Government or private) will apply for declaration of a child
as abandoned and free for placement and thereby driving the wrong practice
and if the parents of the child are not known, such children should be
transferred to the recognized institution/placement agency.

While declaring the child abandoned, Juvenile Welfare Boards or Courts

should not disturb the custody of children abandoned directly with the
recognized placement agencies and such orders may be passed ex- parte and
confirmed after notice to the concerned parties.

2. The quota fixed by the Central Government for the transfer of children to
India families is contrary to Lakshmikant Pandey’s Case. The court may
direct to exclude children with handicaps, medical problems and other
drawbacks from counting in case of fixing up of quota.

3. The State Governments and the various Union Territories should be directed
to issue birth certificates based upon attested copies of court's certificate
(decree), adoption deed or on the basis of affidavits of officials of the
licensed agencies.

4. The Petitioner sought to enable the agencies to maintain high standards of care
for the children, expenses by about 25% to be revised and annual escalation of
10% be made.
5. The adopted children shall be allowed to retain their citizenship till they attain
the age of majority.

6. Central Adoption Resource Agency (CARA) is no longer required in view of the

fact that many private agencies were not available to monitor the programme and
hence, setting up of CARA should be stayed.

7. Show cause notice need to be issued before the cancellation of registration/

license to registered agency. The Central Government should be directed to act by
itself or through the State/Union Territory Governments to issue show cause notice
before refusing to extend recognition arid grant personal hearing before taking
official action and reasoned orders should be made in support of such action.

OBSERVATION OF SUPREME COURT ON VARIOUS GROUNDS:

I. It was stated that allowing citizenship till the attainment of majority may create
hurdle in early cementing of the adopted child into the adoptive family.

II. Birth certificate of the adopted child shall be obtained on the basis of
application of the society sponsoring adoption which will be subjected to
magisterial order.

III. The affidavit of the Union Government indicates that it never intended to fix
any quota for the purpose of allowing renewal of registration or license. However,
it is not the policy of the Government of India mandating the agency to satisfy the
condition of any quota.

IV. The Supreme Court took affirmative approach on this ground and held that
Registered societies can renew their license if they exhibit their involvement in the
process of adoption and the authority should have evidence to satisfy that the
agency is really involved in the activity and have proper child care facilities.

V. The Supreme Court justified the idea of setting up of Central Adoption

Resource Agency (CARA) on the ground that institution like CARA would be an
organization of primacy and would work as a useful agency in the field. Although
there should be no keen competition for offering adoptions, regulated competition
may perhaps keep up the system in a healthy condition.

VI. Considering the general rise in cost of living, an escalation by 30% is allowed
and escalation of expenses will be reviewed once in three years.

VII. The Supreme Court expressed strong opinion in transfer of children for
placement and stated that children whose parents are not known, orphans and
abandoned can be transferred for the purpose of placement. Various states do not
have any statutory homes and even Juvenile Boards have not been properly
functioning. Some recognized agencies also do not have the facility of child care.
In these circumstances to order transfer of children from statutory homes to
recognized agencies can indeed not be accepted as a rule39.

POST-LAXMIKANT PANDEY CASE (1992)

In Karnataka State Council for Child Welfare v. Society of Sisters of Charity

St. Gerosa Convent50, the apex court reiterated the guidelines laid down in the
Laxmikant Pandey case while dealing with an application for inter-country
adoption under section 7 read with section 17 of the Guardian and Wards Act,
1890.

50
AIR 1994 SC 658
In Sumanlal Chhotelal Kamdar v. Asha Trilokbhai Saha 51, the court observed
that the authority permitting adoption did not take precaution to explain the effect
of adoption to the biological parent of the child.

In Anokha v. State of Rajasthan52, the apex court stated that the guideline
prescribed by the Ministry of Welfare, Government of India is not applicable in
case where the biological parents are willing to give their child to known foreign
couple.

In St. Theresa’s Tender Loving Care Home v. State of Andhra Pradesh 53,
Justice Pasayat states that welfare of the child is the guiding factor in the process of
adoption and if the courts are satisfied that foreign adoptions will take care of the
child to be adopted, will provide opportunities for their development and will give
them a sense of security, parenthood and homely and family atmosphere, they
should grant the permission for adoption and even ignore the technicalities of law,
if they come in the way of welfare of the child to be adopted.

In Craig Allen Coates v. State & Anrs.54 , The Supreme Court of India took a
bold step and an adoption of Indian mentally disabled child was allowed to an US
woman on the ground of her professional experience. This recent development
reflects that the Indian courts on the ground of welfare of children can exercise
their discretionary power to any extent.

51
AIR 1995 SC 1892
52
AIR 2004 SC 2820
53
Available at: https://indiankanoon.org/doc/257199/ (Visited on 10 August, 2016)
54
2010(11) SCR 102
As the Supreme Court declared that the foreigners can legally adopt children
through licensed welfare agencies and thereby by justifying the inter-country
adoption who is highly controversial issue. Now, the problem before Indian courts
is to identify a variety of principle and procedure over migration, citizenship, the
socio-economic situation of adoptive parents with the child and acceptance of the
child in a different community and culture.

CONCLUSION:

In the year 1984, the Supreme Court accepted the concept of Inter-country
Adoption which means any foreign parents can adopt child as per procedure laid
down by the court and the guideline framed by the CARA. The Apex court
delivered this judgment on the ground of welfare and proper form of rehabilitation
for the abandoned children .But, in the year 1991 when matter concerned about the
citizenship of adopted child. The Apex Court denied from giving citizenship and
stated that “allowing citizenship till the attainment of majority may create hurdle
in early cementing of the adopted child into the adoptive family”. The Apex court
failed to demystify the kind of hurdle that might be created with the recognition of
citizenship. The Apex Court must have to elucidate the consequences and
opportunities of child exploitation with regard to inter-country adoption and
detailed explanation on not providing citizenship to the adopted child.55

India lack an effective system of domestic adoption within India means, in itself,
that India cannot at present create a truly lawful system of inter-country adoption.
The law, after all, both nationally and internationally, requires that inter-country
55
Supra Note 38 at p. 10
adoption be a last resort after domestic adoption. This principle requires that efforts
be made to adopt a child domestically prior to attempting inter-country adoption.
Those efforts to adopt a child domestically, however, are hampered by a domestic
adoption system that artificially suppresses and limits domestic adoption. Thus,
even where it is factually accurate, on an individual basis, that sincere efforts were
made to place a particular child domestically, on system-wide basis adequate
efforts to place a child domestically cannot occur until domestic adoption is at least
as accessible as inter-country adoption. Indeed, how can India satisfy legal
requirements to favour in-country adoption, when under present law there are
many situations where a family that would be ineligible to complete an adoption
domestically, could legally complete the adoption if they were foreign and adopted
through the inter-country adoption system.

The main problem with such concept is unavailability of specific legal provision
and also non-compliance of the existing statutes. Children are treated as saleable
goods. There has to be proper legal framework for specific performance of
contract. Now, The Government of India considers adoption as the best non-
institutional support for rehabilitation of such children because only a family
environment can provide them the best opportunity to fulfill their potential.
However, it is not hidden that children are taken abroad for domestic services
under the garb of adoption. The Government and the agencies must come up with
rules and guidelines of such a nature that promote merely the welfare of the child
with the minimum danger to the child of any sort.