CHANAKYA NATIONAL LAW

UNIVERSITY

Intercountry Adoptions and Conflict of Laws

Environmental Law

  Submitted to: Submitted by:

Dr. P. P. Rao Apoorv

Apoorv Tiwari
Tiwari

(Faculty, P
Prrivate IIn
nternational La
Law) (Roll N
No
o. 1
14
41208)
 

Table of Contents
ACKNOWLEDGEMENT..............................................................................................................................…………..I

RESEARCH METHODOLOGY..................................................................................................................
METHODOLOGY....................................................................................................................………….II

CHAPTER 1 INTRODUCTION......................
INTRODUCTION....................................................................................................................…………..1
..............................................................................................…………..1

CHAPTER 2 INTER-COUNTRY ADOPTION AN INDIAN PERSPECTIVE.......................................…………..2

  I NTERNATIONAL TREATIES & CONVENTIONS:....................................................................................………………4
  CARA GUIDELINES FOR   II NTER -C
-COUNTRY ADOPTIONS IN I NDIA........................................................………………5

CHAPTER 3: A STUDY WITH REGARD TO LAWS RELATING TO ADOPTION IN USA, UK & INDIA…..8
INDIA….. 8

  UNITED STATES OF AMERICA.....................................................................................................………………8

AMERICA.....................................................................................................………………8
  UNITED KINGDOM.........................................................................................................................………………8
  INDIA.................................................................................................................................................………………9

CHAPTER 4: CRITICAL ANALYSIS OF INTER-COUNTRY ADOPTIONS.......................................………….11

  SUGGESTIONS AND POINTING OUT LOOPHOLES :.................................................................................…………......12
  I NTER -COUNTRY ADOPTIONS AND CONFLICT OF LAWS:....................................................................………….….13

CONCLUSION................................................................................................................................................………….15

BIBLIOGRAPHY............................................................................................................................................………….16
 

ACKNOWLEDGEMENT

Any project completed or done in isolation is unthinkable. This project, although prepared by me, is a
culmination of efforts of a lot of people. Firstly, I would like to thank our Professor for Private International
Law, Dr. P.P. Rao, for his valuable suggestions towards the making of this project.

Further to that, I would also like to express my gratitude towards our seniors who were a lot of help for the
completion of this project. The contributions made by my classmates and friends are, definitely, worth
mentioning.

I would like to express my gratitude towards the library staff for their help as well. I would also like to thank 
the persons interviewed by me without whose support this project would not have been completed.

Last, but far from the least, I would express my gratitude towards the Almighty for obvious reasons.
 

RESEARCH METHODOLOGY

  Aims & Objectives:

To investigate
investigate and examine possible
possible avenues
avenues in order to provide
provide sound basis for adoption
adoption between
between
 parties belonging to different jurisdictions where legal issues are bound to arise however by resorting
to certa
certain
in lega
legall fr
fram
amew
ewor
ork
k an
and
d gu
guid
ideli
eline
ness laid
laid do
down
wn by th
thee Cour
Courtt in nu
nume
mero
rous
us case
case la
laws
ws..
Such legal anomalies can be avoided to a greater extent in order to give effect to welfare of child.
On the other hand researcher also seeks to understand the various facets of legal frame work 
Pertaining to adoption laws and thereby gives reader a better understanding. To support theory, the
researcher will enlighten the readers with pertaining legal provisions and case laws as to help reader 
to appreciate to the extent it has been realized.

  Research Questions:

I. What is Inter-country Adoption?

II
II.. How
How doe
doess Int
Inter
er-c
-co
ountr
untry
y Ado
Adopt
ptio
ion
n ttak
akee pla
place
ce??

III
III.. What
What are
are the Con
Confli
flict
ct of Law
Law issu
issues
es rela
relate
ted
d to Inte
Inter-c
r-cou
ount
ntry
ry Ado
Adopt
ptio
ions
ns??

  Method of Research

The researcher has adopted a purely doctrinal method of research. The researcher has made extensive
use of the library at the Chanakya National Law University and also the internet sources.

  Sources of Data:

The following secondary sources of data have been used in the project-
1. Cases

2. Books

3. Websites

  Method of Writing:

The method of writing followed in the course of this research paper is primarily descriptive.

  Mode of Citation

The researcher has followed a uniform mode of citation throughout the course of this research paper.
 

P a g e  | 1

CHAPTER 1
INTRODUCTION
In Legal sense adoption has been understood as a legal method of creating between the child and one

who is not the natural parent of the child an artificial family relationship analogous to that of parent and
child. Thus adoption is the act of legally
child. legally placing a child with a parent
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
to
towa
ward
rdss th
thee na
natu
tura
rall pa
pare
rent
ntss and
and su
subs
bsti
titu
tuti
ting
ng si
simi
mila
larr ri
righ
ghts
ts an
and
d du
duti
ties
es to
towa
ward
rdss ad
adop
opti
tive
ve pa
pare
rent
ntss 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. From the
age of mythology, there are abundant examples to see that not only in India but in other civilizations also
there was concept of substituted parenting for example in Greek Mythology, Hercules
Mythology,  Hercules was
 was born to Lord of 

Gods Zeus but
Gods Zeus  but was brought up by a farmer couple & in India too  Krishna
 Krishna   &  Karna
 Karna were
 were born to one but
 brought up by another.
another.

A variety of issues arises from point of Private International Law regarding adoption. There are wide
differences between the laws of different countries on matter of adoption such as who can be adopted or to
 be adopted and effects
effe cts of adoption. For an instance, requirements of English law that person to be adopted
must be unmarried and under the age of 18 may not be found in all legal systems. 1

The institution of adoption has become international, crossing the borders of the national legislations.
Inter-country adoption can be defined as adoption of a child by a person of another country.
country . It may be more
viable choice than domestic adoption for many families especially those who want to adopt a healthy infant.

Although
Altho
“ ugh there is no general law of adoption,
adoption, yet it is permitted by a statute amongst
amongst Hindus and by
custom amongst a few numerically insignificant categories of persons. Since adoption is legal affiliation of a
child, it forms the subject matter of personal law. Muslims, Christians and Parsis have no adoption laws and
have to approach court under the Guardians and Wards Act, 1890. Muslims, Christians and Parsis can take a
child under
under the said Act only under foster care. Once a child under
under foster care becomes
becomes major, he is free to
 break away all his connections. Besides, such a child does not have legal right of inheritance. Foreigners,
who want to adopt Indian children, have to approach the court under the aforesaid Act. In case the court has
given permission for the child to be taken out of the country, adoption according to a foreign law, i.e., law
applicable to guardian takes place outside the country. ”

1
 Cheshire and North’s: Private
North’s: Private International Law (Oxford
Law (Oxford University Press New Delhi, 13th edn 2006) pg 902.
 

P a g e  | 2

CHAPTER 2
INTER-COUNTRY ADOPTION AN INDIAN PERSPECTIVE

There no statue has been enacted in India to regulate inter country adoptions; the Supreme Court has
laid down certain guidelines to be followed by courts when an application is made by foreign nationals to
adopt an Indian child.2

“Before the Laxmikant
the  Laxmikant Pandey’s case the
case the inadequacy of the law of adoption to address the issue of 
in  In Re Rasiklal Chagan Lal Mehta3. It is
inter-country adoption was highlighted by the Gujarat High Court in In
common knowledge that such adoptions are on the increase. While it is a welcome trend
tr end that poor and needy
children
children get an opportunity
opportunity to get affluent family and homes,
homes, it cannot
cannot be denied that such adoptions
adoptions have
opened opportunities for unscrupulous agencies to commercialize the practice, and abuse and exploitation of 
children is not unknown. In Rasiklal
In  Rasiklal case,
case, a German Couple wished to adopt a girl from an orphanage at
Rajkot, and take her to Germany with them. In the absence of any statutory provision under which a
foreigner could adopt an Indian child, the applicants tried to explore the provision under the section 9(4) of 
the Hindu Adoptions
Adoptions and Maintenance
Maintenance Act 1956. In order to overcome
overcome the hurdle, which requires that the
adopter under the Act has to be a Hindu, they even adopted Hinduism. They had to shuttle between the
 passport office and the courts and ultimately had to file another application under the Guardians and Wards
Act 1890. After detailed consideration of all aspects of such adoption, the Division Bench of the High Court
came out with various guidelines, example in any case involving inter-country adoption, a notice should be
compulsorily issued to the concerned welfare agency; there should be a provision in the adoption order 
 providing for periodical report pertaining to the maintenance and well-being
well- being of the child in the hands of the
adoptive parents, the courts must ensure that the adoption is legally valid under the laws of both the
countries and that the child should be able to immigrate to that country and also obtain the nationality of the
 parents. ””

“The Indian Ministry of Welfare, has framed guidelines in pursuant to certain guidelines issued by the
Supreme Court of India governing inter-country adoptions in a public interest litigation petition, Laxmi
petition,  Laxmi Kant 
 Pandey v Union of India,4 i.e. Every effort must be made first to see if the child can be rehabilitated by
adoption within the country and if that is not possible, then only adoption by foreign parents, or as it is some
time called 'inter- country adoption' should be acceptable. ”

2
 Setalvad A M: Conflict of Laws (LexisNexis
Laws (LexisNexis Butterworths New Delhi, 2007) pg 390.
3
 AIR 1982 Guj 193.
4
 AIR 1987 SC 232
 

P a g e  | 3

Such inter-country adoption should be permitted after exhausting the possibility of adoption within the
“

country by Indian parents. ”

There is a great demand for adoption of children from India and consequently there is increasing
“

danger of ill-equipped and sometimes even undesirable organisations or individuals activising themselves in
the field of inter-county adoption with a view to trafficking in children. ”

This case was monitored by the Supreme Court from time to time until 1991, when the court
“

scrupulously
scrupulously reviewed the existing
existing procedure
procedure and practices followed
followed in inter-countr
inter-country
y adoptions.
adoptions. The main
objective was to prevent trafficking of children and to protect the welfare of adopted children. ”

In the further supplemental judgment of Laxmi

“ of  Laxmi Kant Pandey v Union of India, the
India, the apex court pointed
out that ordinarily the court, entertaining an application on behalf of a foreigner seeking to be appointed
guardian of a child with a view to eventual adoption, should not insist on the foreigner making a deposit by
way of security
security for due performance
performance of the obligations
obligations undertaken
undertaken by him. However, in appropriate
appropriate cases,
the court may exceptionally pass an order requiring him or her to make such deposit. The court has also
observed that it is at that point of time that the execution of a bond would ordinarily be sufficient. ”

 Justice Bhagwati 
Bhagwati  observed, “… We would, therefore,
therefore, direct that in case of a foreigner
foreigner who has been
living in India for one year or more, the home-study report and other connected documents may be allowed 
to be prepared
prepared by the recognized placement
placement agency which is processing
processing the applicatio
application
n of such foreigner 
foreigner 
 for guardianship of a child with a view to its eventual adoption and that in such a case the Court should not 
insist on sponsoring of such foreigner by a social or child welfare agency based in the country to which
 such foreigner belongs nor should a home-study report in respect of such foreigner be required to be
obtained from any such foreign social or child welfare agency, the home study report and other connected 
documents prepared by the recognized placement agency should be regarded as sufficient.” 5

After the implementation of the initial guidelines in 1989, it was felt necessary to revise them.
Accordingly, a task-force comprising a cross-section of representatives of adoption agencies under the
chairmanship of former Chief Justice of India Justice Bhagwati, was constituted on 12 August 1992. The
ta
task
sk-f
-for
orce
ce subm
submit
itte
ted
d its
its repo
report
rt on 28 Augu
August
st 1993
1993,, an
and
d th
thee In
Indi
dian
an Gove
Govern
rnme
ment
nt ac
acce
cept
pted
ed its
its
recommendations. Accordingly, the Government of India circulated revised guidelines in 1994 (hereinafter 
‘the Guidelines’) to regulate matters relating to the adoption of Indian children. These guidelines were
 published by the Government in the Gazette of India on 20 June 1995. Subsequently, new further revised
guidelines have come into place from 14 February 2006.

Much more recently the Supreme Court of India has again reiterated the guidelines in case of adoption
of children by foreign parents, originally laid down in the case of  Laxmi Kant Pandey v Union of India6 
parents, as originally

5
  AIR 1987
1987 SC 232.
6
 Id.
 

P a g e  | 4

While emphatically
emphatically following
following these guidelines
guidelines in St Theresa’s Tender Loving Care Home and others v
States of Andhra Pradesh,7   th
thee ap
apex
ex Court
Court ob
obser
serve
ved
d th
that
at “While making the requisite and prescribed 
exercise it has to be kept in mind that the child is a precious gift and merely because
because he or she for various
reasons is abandoned by the parents that cannot be a reason for further neglect by the society….”

Therefore, the inter-country adoptions are handled with strict supervision by the Indian Courts through

series of precedents as there’s no effective legislation for these adoptions.

CARA Guidelines: Adoptions are regulated by CARA (Central adoption resource authority). CARA
specifies
specifies the eligibility
eligibility conditions,
conditions, proces
processing
sing steps, documentat
documentation,
ion, costs, court processes, foster care
conditions, issuance of birth certificates and post adoption follow ups.

International Treaties & Conventions:

In 1989, the United Nations drafted the Convention on the Rights of Child, in which it laid out several
“

 principles according to which children have a right to be treated. ”

Article 21 states that, in regard to adoption, “The best interests of the child shall be the paramount 
“

consideration.” Included
consideration.” Included in Article 21 is the recognition of inter-country adoption as an appropriate means,
under certain circumstances, of reaching this goal. ”

Second comes The Hague Convention on Protection of Children and Co-operation in Respect of Inter-
“

country Adoption (or Hague Adoption Convention) is an international convention dealing

dealing with international
adoption, child laundering, and child trafficking. It was concluded on 29 May 1993 and entered into force on
1 May 1995. The main objectives of the Convention are:

➔ to establish safeguards to ensure that inter-country adoptions take place in the best interests of the
child and with respect for his or her fundamental rights as recognized in international law;
➔ to establish a system of co-operation amongst Contracting States to ensure that those safeguards are
respected and thereby prevent the abduction, the sale of, or traffic in children;
➔ To secur
securee th
thee recog
recogni
niti
tion
on in Cont
Contrac
racti
ting
ng Stat
States
es of ad
adop
opti
tion
onss made
made in ac
acco
cord
rdan
ance
ce wi
with
th th
thee
Convention. ”

7
  AIR 2005 SC 4375.

P a g e  | 5

CARA Guidelines for Inter-Country Adoptions in India

The Central Adoption Resource Authority (CARA) is an Autonomous Body under the Ministry of Women
and Child Development, Government of India. Its objective is to help both Indian and foreign agencies,
involved in inter country adoption of Indian children, to function within a prescribed framework so
s o that such
children
children are adopted
adopted legally through recognized
recognized agencies and to ensure that no exploitatio
exploitation
n takes place. It
was designated
designated as Central Authority
Authority by the Ministry
Ministry of Social Justice and Empowerment
Empowerment on 17 July 2003
for the implementation of the Hague Convention on Protection of Children & Cooperation in respect of 
Inter-country Adoption (1993). There are about 254 foreign agencies enlisted by CARA in various countries
across the world. They are authorized to sponsor cases of prospective adoptive parents to the recognized
 placement agencies in India. Following are the guidelines formulated for inter-country adoption known as
CARA Guidelines 2006:

 Step 1- Enlisted Foreign Adoption Agency

Agency (EFAA):

Thee ap
Th appl
plica
icant
ntss wi
will
ll ha
have
ve to co
cont
ntac
actt or re
regi
gist
ster
er wi
with
th an Enli
Enliste
sted
d Forei
Foreign
gn Adop
Adopti
tion
on Agen
Agency
cy

(EFAA)/Central Authority/Government Department in their country, in which they are resident,

which will prepare the Home Study Report (HSR). HSR includes details like social & economic
status of family, description of home, current relationship between husband & wife, employment
status of adoptive parents etc. The validity of “Home Study Report” will be for a period of two years.
HSR report prepared before two years will be updated at referral.

The applicants should obtain the permission of the competent authority for adopting a child from
India.
India. Where
Where such
such Centra
Centrall Author
Authoriti
ities
es or Govern
Governmen
mentt departm
department
entss are no
nott availa
available
ble,, then
then the
applications may be sent by the enlisted agency with requisite documents including documentary
 proof that the applicant is permitted to adopt from India.

Where there is no Enlisted Foreign Adoption Agency (EFAA): In the case of an Indian National
residing in a country where there is no Enlisted Agency, CARA may allow an organization or 
individual recommended by the Indian Embassy to do the Home Study Report (HSR), undertaking as
 prescribed in the Guidelines and other documentation. The said application may be forwarded
f orwarded with
the approval of the Indian Embassy to CARA.

Wherever there is no Foreign Adoption Agency enlisted by CARA in any country, the concerned
Government
Government Department
Department Ministry or any authorized
authorized body of that country
country may forward the original
original
application and related documents of the prospective adoptive parents to CARA through the Indian

Embassy/H
Embass y/High
igh Commissi
Commission.
on. In case of residen
residentt non-ci
non-citiz
tizens
ens where
where the host Govt.
Govt. may not be
willing to sponsor the cases, the documentation may be done through the Embassy of the country to
which the applicant belongs. Home studies however will have to be prepared by a qualified Agency/
Social Worker in all cases. In case CARA receives th
thee papers it will send those papers
papers to any of
of the
 

P a g e  | 6

Recognized Indian Placement Agencies (RIPA) for further processing the case only after HSR has
 been approved by it. The procedure to be adopted thereafter shall be the same as indicated in the
 process.

 Step 2- Role of Recognised Indian Placement

Placement Agency (RIPA):

On receipt of the documents, the Indian Agency will make efforts to match a child who is legally
free for inter-country adoption with the applicant. In case no suitable match is possible within 3
months, the RIPA will inform the EFAA and CARA with the reasons therefore.

 Step 3- Child being declared free for inter-country adoption - Clearance by ACA:

Before a RIPA proposes to place a child in the Inter country adoption, it must apply to the ACA for 
assistance for Indian placement.

The child should be

be legally free for adoption. ACA will find a suitable
suitable Indian prospective adoptive
 parent within 30 days, failing which it will issue clearance certificate for inter-country adoption.

 Step 4- Matching of the Child Study

Study Report with Home Study Report
Report of FPAP by RIPA:

After a successful matching, the RIPA will forward the complete dossier as per Annexure 3 to
CARA for issuance of “No Objection Certificate”.

 Step 5 - Issue of No Objection

Obj ection Certifi
C ertificate
cate (NOC)
( NOC) by CARA:

RIPA shall make application for CARA NOC in case of foreign/PIO parents only after ACA
Clearance Certificate is obtained.

CARA will issue the ‘NOC’ within 15 days from the date of receipt of the adoption dossier if 
complete in all respect.

If any query or clarification is sought by CARA, it will be replied to by the RIPA within 10 days.
 No Indian Placement Agency can file an application in the competent court for inter-country
adoption without a “No Objection Certificate” from CARA.

 Step 6- Filing of Petition in the Court:

On receipt of the NOC from CARA, the RIPA shall file a petition for adoption/guardianship in the
competent court within 15 days.

The competent court may issue an appropriate order for the placement of the child with FPAP.

As per the Supreme Court directions, the concerned Court may dispose the case within 2 months.

 Step 7- Passport and Visa:

RIPA has to apply in the Regional Passport Office for obtaining an Indian Passport in favour of the
child.
 

P a g e  | 7

The concerned Regional Passport Officer may issue the Passport within 10 days.

Thereafter the VISA entry permit may be issued by the Consulate/Embassy/High Commission of the
concerned country for the child.

 Step 8 - Child travels

t ravels to adoptive
adoptiv e country
countr y:

The adoptive parent/parents will have to come to India and accompany the child back to their 
country.
 

P a g e  | 8

CHAPTER 3:
A STUDY WITH REGARD TO LAWS RELATING TO
ADOPTION IN USA, UK & INDIA

UNITED STATES OF AMERICA

“In United States, through Inter country adoption, the legal transfer of parental rights from birth parent
to another parent takes place. Over the last decade, U.S. families have adopted on average approximately
20,000 children from foreign nations each year.”

Inter country adoption has made this permanently possible for hundreds of thousands of children
“

worldwide. When children cannot remain with a relative, and new parents within their communities cannot
 be found, it opens another pathway to children to receive
r eceive the care,
ca re, security
s ecurity and love that only a permanent
family can provide. It is required
required for the welfare and development
development of a child,
child, who may get an opportunit
opportunity
y
for this in some other country. ”

In US the existing is Inter-country Adoption Act of 2000 the major goal of the Act is to provide for 
“

implementation by the United States of the Hague Convention on Protection of Children and Cooperation in
Respect to Inter country Adoption. By so doing the Act accepted standards and procedures for adoptions
 between implementing countries that prevents abuses such abduction or sale of children, ensures proper 
consent for the adoption, allows for the child's transfer to the receiving country, and established the adopted
child's status in the receiving country. The law is recent so, is in consonance with the recent changes and
trends and is exhaustive in nature and in total. ”

Most states allow either an individual or a married couple to adopt a child. Adoption by two persons
“

not married to each other is not permitted. Absent a specific prohibition, a child may be placed with a
homosexual individual, including an individual who resides with a homosexual partner. ”

UNITED KINGDOM

The 1993
“ 1993 Hague Convention
Convention on Protection
Protection of Children
Children and Co-operation
Co-operation in respect of inter country
adoption is an international system of collaboration that aims to prevent the abduction of, sale of, or traffic
in children. The Convention requires that inter country adoption happens only where it would be in the
child's best interests, that all adopters are assessed and approved as suitable to adopt and that no profit is
made from the adoption process. The UK ratified the Convention on 1 June 2003. ”

In UK, the provisions of Inter country adoption are governed by the children and Adoption Act, 2006.
“

Certain restrictions have been very clearly laid down in act that has been passed in the UK namely the UK 
 

P a g e  | 9

Children Adoption Act 2006. Such a provision is the special restrictions that have been placed under this act.
The part III of this Act deals with the adoptions with foreign element. This act can be of help as it gives
complete power in the hands of the British Parliament to restrict adoptions which seem to it as against public
 policy or as harming any involved interests. The Inter country adoption procedure can seem daunting and
complicated for those who are unfamiliar with the process. The UK does not impose any restrictions on

which country you may adopt a child from. However, not all overseas Governments allow inter-country
adoption. ”

Currently there are around 300 children adopted by UK families from overseas each year. Those who
“

wish to adopt from overseas must first become an approved adopter. To do this they should contact their 
local social services who may carry out the home study themselves or ask another agency or independent
social worker to do it for them. An individual or family can also ask a voluntary adoption agency to carry
out the assessment.
assessment. A home study cannot be obtained
obtained from any other organization
organization or individual
individual.. Overseas
agencies
agencies should not assist you to adopt a child from abroad until you have completed
completed the process
process outlined
outlined
above. ”

However while making an application for Entry Clearance to bring a child to the UK under the
“

adopti
adoption
on provis
provision
ionss in the Immigr
Immigratio
ation
n Rules;
Rules; Europe
European
an Econo
Economic
mic Area nation
nationals
als must
must be able
able to
demonstrate that they have acquired “Permanent Residence” in the UK by way of confirmation from UK 
Borders
Borders Agency
Agency (i.e. European
European Economic
Economic Area nationals
nationals must apply for confirmatio
confirmation
n of their “permanent
“permanent
residency” from the UK Borders Agency prior to their leaving the UK to adopt a child). ”

INDIA

Being a signatory to United Nations Convention on Rights of the Child (UNCRC) and The Hague
“

Convention on Inter-country Adoption, India is obliged to enact appropriate legislation on inter country
adoption. though the efforts has been made in view of the developments such as the ratification of the Hague
Convention on Inter-country Adoption-1993 by India on 06/06/2003 The “Guidelines for Adoption from
India – 2006” will supersede all previous Guidelines issued in this regard by the Ministry of Social Justice &
Empowerment, Govt. of India.8 ”

Howeve
How
“ everr India
India there
there is paucit
paucity
y of legisla
legislatio
tions
ns regard
regarding
ing inter-c
inter-coun
ountry
try adopti
adoption.
on. The main
main laws
laws
regulating inter country adoption derives its authority and validity from Judicial Pronouncements and CARA
Guidelines. The Government of India, in pursuance of its constitutional mandate, has evolved a National
Policy for the welfare of children. The thrust of this policy is summed up in the following words: “The
 Nation’s children are a supremely important asset. Their nurture and solicitude are our responsibility.
Children’s programmes should find a prominent part in our national plans for the development of human
resources, so that our children grow up to become robust citizens, physically fit, mentally alert and morally
8
  CENTRAL
CENTRAL ADOPT
ADOPTION
ION RESOURCE AUTHORITY
AUTHORITY Minist
Ministry
ry of Women and Child Development
Development Guidelines
Guidelines for 
 adoption from India – 2006 http://cara.nic.in/adoptionfromindia.htm
http://cara.nic.in/adoptionfromindia.htm accessed
 accessed on 20 March 2018.

P a g e  | 10

healthy, endowed with the skills and motivation needed by society. Equal opportunities for development to
all children during the period of growth should be our aim, for this would serve our larger purpose of 
reducing inequality and ensuring social justice.” The National Policy for the Welfare of Children also
stresses the vital role which the voluntary organizations have to play in the field of education, health,
recreation and social welfare services for children and declares that it shall be the endeavour of the state to

encourage and strengthen such voluntary organizations.

”
 

P a g e  | 11

Chapter 4:
CRITICAL ANALYSIS OF INTER-COUNTRY
I NTER-COUNTRY ADOPTIONS

Inter-country adoption is accepted with the belief that it is a beneficial and essential practice for 
“

serving the needs of the world as the world is a global village today, given the unequal geographic
distribution of orphaned children and adoptive homes. But this is not a universally held belief. To better 
understand inter-country adoption, it is important to look at its criticisms in order to point out areas that
good policy around inter-country adoption must address. The very first factor which discourage inter-
country adoption is

“ Child Trafficking: Critics inter-country adoption of say it promotes the illegal buying and selling of 
children. The claim is that the high demand in the developed world for children in the developing world
creates a black market in kidnapped babies. It must be pointed out that the root of the problem is certain
 placement agencies’ desire for financial gain and their propensity to extort money from childless foreigners. ”

“ Exploitat
Explo ion: In many instances we come to know that these adopted children are being used as
itation:
servants at homes, they are being used for drug peddling or are pushed in the gutter of child pornography. ”

The Indian Judiciary in various cases helped to uproot these problem as the Supreme Court of India, in
“

 Karnataka State Council for Child Welfare v Society of Sisters of Charity St Gerosa Convent, 9 held that the
rationale
rationale behind
behind finding parents preferably
preferably Indian
Indian parents or parents of Indian
Indian origin
origin overseas is to ensure
that the children should grow up in Indian surroundings so that they retain their culture and heritage. This is
definitely an issue, which has a bearing on the question of the welfare of the children. The best interest of 

the children is the main and prime consideration. The Allahabad High Court in  Jagdish Chander Gupta v Dr 
 Ku Vimla Gupta10 held that, under section 9 of the Guardian and Wards Act 1890, the application for 
guardianship of a minor shall be made to the district court having jurisdiction in the place where the minor 
ordinarily resides. The supervisory role of the court in placing the welfare of the minor as the primary
consideration is best reflected in the following words of the court:

“…It should not be lost sight of and must be emphasized that, a child has not to be treated as a chattel 
in which its parents have a proprietary interest. It is a human being to whom the parents owe serious
obligations. One’s own self interest sometimes clouds his perception of what is the best for those for whom
he or she is responsible. It takes a very high degree of selflessness and maturity which is for most of the

9
 ILR 1991 KAR 3543.
10
  2003 (3) AWC 2133.

P a g e  | 12

 people probably unattainable degree for a parent/proposed guardian to acknowledge that it might be better 
 for the child to be brought up by someone else...””

Suggestions and Pointing out loopholes:

In India millions of children are bound to live the life of orphanage and destitute. Today when any
“

child is adopted we are proud of giving a decent homely life to the child. But in the absence of the common
adoption code for all community members, we cannot hope the expected results. So now it is a time to
reassess our laws and regulations that deal with cases of Inter country adoptions. Government cannot try and
 plug loopholes in one act
a ct by amending
a mending another. The most obvious feature of the Indian system
s ystem for foreign
adoptions is its bureaucratic layering of multiple institutions that must approve each adoption. By creating a
system
system where
where multi
multiple
ple instit
instituti
utions
ons must
must approv
approvee each adoption
adoption,, within
within the contex
contextt of a system
system often
often
sufferi
suffering
ng from
from corrup
corruptio
tion
n throug
through
h briber
bribery
y and person
personal
al connec
connectio
tions,
ns, safegu
safeguard
ardss can instead
instead become
become
opportunities for abuse. The system of adoption can become one where, in order to get an adoption through
the system, an individual has to either have certain personal connections, or else be willing to “grease

 palms.” Once it becomes apparent that approvals are based on such personal connections or monetary
inducements, incentives to follow the rules may disappear. Hence it’s a high time that there has to proper 
law for adoption in India. Because of uncertainty of laws governing adoption and inter country adoption in
India there arises the problem of conflict of laws. Thus the legislature has to take an imitative firstly to make
a uniform adoption laws for all persons living in India and also to make a concrete legislation on inter 
country adoption. ”

Around the globe many countries has laws relating to inter country adoption like USA and UK which
“

enunci
enunciate
ate particu
particular
lar condit
condition
ionss and proced
procedura
urall requir
requireme
ements
nts for giving
giving way to inter
inter countr
country
y adopti
adoption
on
however in India there is no legislation exist with regard to inter country adoption but there exist only
CARA’s guidelines and that too is just reiteration of what was held by Apex court in numerous cases. As
India
India is signat
signatory
ory of Hague
Hague conven
conventio
tion
n like
like other
other countr
countries
ies who has success
successful
fully
ly incorp
incorpora
orated
ted this
this
convention by legislating however India has failed to do so and no effort has been made so far. the existing
CARA guidelines requires lot of departmental approvals which leads to red-tapism and finally it does not
sub serve the purpose for which such guidelines were framed therefore it is high time that we must make
laws in line with Hague convention on inter country adoption and laws existing in UK and USA which does
not require adoptive parents to follow cumbersome process for adoption. ”

At last keeping in mind the large-scale child trafficking in the world, Like any other types of adoption,
“

inter country adoption can be expensive, time-consuming and uncertain. If the challenges involved in inter 
country adoption can be taken care of the then inter country adoption will give thousands of families’ joy
and satisfaction as it has already fulfilled dreams of many. ”
 

P a g e  | 13

Inter-country Adoptions and Conflict of Laws:

Both countries of origin and receiving countries of children have to take special legal action in an
“

attempt to exert supervision over-inter-country adoption, on the other hand in order to improve the chances
of success of such adoption and on the other to combat abuses. Such mandatory provision generally is
intended to over-ride the conflicting rules of Private International Law. The increase in the numbers of 
children being adopted by families from other countries has also been the cause of an enormous increase in
Public Policy Controversy, leading to The Hague Convention and Treaty on International Adoption, and
numerous
numerous countries changing their internal
internal laws and policies,
policies, to regulate
regulate inter-count
inter-country
ry adoption
adoption practices.
There have been many instances when adoption laws/rules of two country clash resulting in psychological
harassment of the adopting parents & the adopted child. For instance the adoptive parents duly comply with
the requirements for taking the child in adoption. The adoption deed is proudly presented to the immigration
authorities; and this is where the trouble begins. The UK immigration authorities completely disregard the
Indian adoption deed. However if a child has been legally adopted from a country whose adoption orders are
recognised as valid under UK law, i.e., from a ‘designated’  country,
 country, then the parents may apply for the child
to join them in the United Kingdom as their adopted child. If adoption is from a country whose adoption
orde
orders
rs are
are no
nott reco
recogn
gnise
ised
d as va
vali
lid
d in UK law,
law, i.e.
i.e. the ch
chil
ild
d is from
from a ‘non-designated’   country, entry
clearance will have to be obtained for the child to travel to the United Kingdom for adoption through the
English courts. ”

The only avenues available

“ available to the parents are to challenge
challenge the refusal by way of appeal or to lodge a
fresh application. in one of the landmark judgment of Royal Court of Appeal upholding the adoption deed of 
UK couple under Hindu Adoption
Adoption & Maintenance Act, 1956 but the validity
validity of such an adoption is on the
 basis of right to family life i.e. Singh v ECO Delhi11 in which the main principle
principle arising
arising for consideration
consideration

was whether an adoption which does not meet the requirements of relevant international instruments should
invariably
invariably be a reason for according
according little weight to it in determini
determining
ng whether family life exists or not. The
adoption of the boy in the case of Singh was valid in India but not recognised in the United Kingdom. the
Court held that the bias against Indian adoption custom was wrong and that it was a breach of the right to
family life and discriminato
discriminatory
ry to refuse an adopted child entry clearance to the United Kingdo
Kingdom
m by giving
giving
less weight to an adoption
adoption effected by customary
customary law in India and which was recognised
recognised as valid there, on
the ground that it was not a recognised practice in English law. The Court concluded that such a rigid and
formulaic approach is not justified and that the failure to satisfy the requirement of relevant international
instruments will vary from case to case The principles enunciated in Singh which are relevant in determining

whether family life exists between an adopted child and adoptive parents are equally applicable in a situation
which needs to resolve whether there is family life existing between a child and his natural parents who are
separated from each other. ”
 11
 [2004] EWCA Civ 1075.

P a g e  | 14

“Likewise, the American Embassy and numerous European embassies at New Delhi also outright
refuse to accept the above-mentioned adoption deeds under the provisions of HAMA 1956. Hence, only
guardianship orders are acceptable. These can be obtained only by lodging guardianship petitions under the
 provisions of the Hindu Minority and Guardianship Act, 1956 in the court of the guardian judge, in whose
 jurisdiction the minor child is residing. It is like a full blown trial. It is very difficult to obtain guardianship

orders. These petitions have to be supported by exhaustive documentation as to the background and standing
of the proposed overseas adoptive parents. Sometimes, it can be a time consuming exercise, and it is very
difficult in such a situation for the foreign couple to spend long periods of time in India awaiting custody
orders. With these custody orders, the adoption ultimately takes place in the foreign country of habitual
residence of the adoptive parents. Though inter country adoption has been eased by CARA guidelines
however still in India, as we have no exclusive law of adoption for foreigners or non-resident Indians hence
there are hurdles. ”
 

P a g e  | 15

CONCLUSION

The Adoption serves the double purpose of giving a child a home and giving parents a child. It is a
“

wonderful social institution, one that every civilized society supports. Adoption is the institutionalized
 practice through which an individual belonging by birth to one kinship group acquires new kinship ties that
are socially and legally defined as equivalent to the congenital ties. These new ties supersede the old ones
either wholly or in part. ”

Inter-country adoption must not be looked upon not as an independent activity by itself, but as a part
“

of child welfare programme so that it may not tend to degenerate into trading. Such adoption would not be
mere legalistic arrangement but the creation of an environment in which the child can grow in health and
happiness and be really integrated in the society of its adoption. ”

As every child has a right to love and loved and to grow-up in an atmosphere of love and
“ a nd affection and
of moral and materials security and this is possible only if the child is brought up in a family. The most
congenial environment would, of that of the family of his biological parents. But if for any reason it is not
 possible for biological parents or other near relatives 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 out adoptive parents for the child so that the child can grow up under the loving
care and attention of adoptive parents. ”

Article 39 and Article 45 of the Indian Constitution calls for the protection of children and youth from
“

material and moral exploitation. The future of inter-country adoption will be determined by the perceptions
of its success
success held by officials
officials and the public in the children's
children's countries
countries of origin.
origin. Safeguards
Safeguards contained
contained in
the Hague Convention on Inter-country Adoption should be put to rest some of the fears (that the children
are being used as organ donors, for example) that make the process unstable and deny the love of a
 permanent family to children who could benefit from adoption.
adoption. ”

Al
Alll of th
“ this
is woul
would
d be in the
the be
best
st in
inte
teres
rests
ts of th
thee ch
chil
ild,
d, which
which is un
undo
doub
ubte
tedl
dly
y th
thee pa
para
ramo
moun
untt
consideration, and at the same time would allow both the letter and spirit of law to be adhered to.
Considered changes are thus urgently required in the field of inter-country adoption from India. ”
 

P a g e  | 16

BIBLIOGRAPHY

 BOOKS REFERRED:

 Setalvad A M: Conflict of Laws (LexisNexis Butterworths New Delhi, 2007)

 Agrawal K. B.: Private International Law in India (Kluwer Law International, 2010)
 Dicey, Morris & Collins: The Conflict of Laws (Sweet & Maxwell Ltd, 2007)
 Cheshire and North: Private International Law (Oxford University Press New Delhi 13th edn,
2006)

 INTERNATIONAL CONVENTIONS:
CONVENTIONS:

 The United Nations drafted the Convention on the Rights of Child, 1989
 The Hague Convention on Protection of Children and Co-operation in Respect of Inter-country

Adoption (or Hague Adoption Convention) 1993

 E-SOURCES:

 http://lawcom
http:// lawcommissio
missionofindia.
nofindia.nic.in/
nic.in/repor
reports/re
ts/report219.p
port219.pdf
df accessed on February 21, 2018.
 http://adoption
http:// adoptionindia.ni
india.nic.in/gu
c.in/guidelin
ideline-fam
e-family/Par
ily/Part_I.pdf
t_I.pdf accessed on February 21, 2018.