The National University of Advanced Legal Studies, (NUALS)

(A State University established by Act 27 of 2005 of the Kerala State Legislature)

Kalamassery, Kochi-683503, Kerala

Conflict of Law
Recognition of Foreign Adoption

Submitted by: Liya Fathima

7th Semester
1642
 Acknowledgement

I would like to express my sincere thanks of gratitude to my Conflict of Law Professor Dr.
Nandita Narayan who gave me a wonderful opportunity to do this assignment on the topic
“Recognition of Foreign Adoption” which gave me a chance to do research on the same and it
helped me gain knowledge about it. I would also like to thank the Vice Chancellor of NUALS for
providing the required facilities needed for the research. I would also like to extend my gratitude
towards my parents for being supportive throughout this research.
Introduction
International adoption, or inter-country or transnational adoption, involves an individual or a
couple legally and permanently becoming the parent(s) of a child who is a citizen of a different
country. Generally, prospective adoptive parents need to meet the adoption criteria set by their
own country and the child's country of nationality. The willingness of countries to permit
international adoptions varies; some, like China and South Korea, have established rules and
procedures for such adoptions, while others explicitly prohibit them. Some countries, particularly
many African nations, impose lengthy residency requirements on adoptive parents, effectively
making most international adoptions impractical.

Inter-Country Adoptions
Every child deserves the right to experience love, grow up in a caring and secure environment,
and receive moral and material support. Ideally, this happens within their biological family.
However, if, for some reason, the child's biological parents or close relatives cannot provide this
care, and the child is abandoned with no means of tracing the parents or their unwillingness to
care for the child, the next best option is to find adoptive parents who can offer the child love and
attention.

The practice of international adoption emerged as a compassionate response to the needs of war
orphans and abandoned children during World War II, the Korean War, and the Vietnam War.
Today, the primary receiving countries for international adoption are the United States, Canada,
and Western European developed nations. Various factors, including declining fertility due to
delayed marriages, the high cost and limited success of infertility treatments, and a lack of
domestic adoption opportunities, have made international adoption an alternative for childless
couples in these receiving countries.

On the other hand, in the countries of origin or sending countries, extreme poverty, limited
access to contraception, and societal attitudes toward the birth of children outside of marriage are
three significant factors contributing to the abandonment of children in institutions. Additionally,
the preference for male children often results in the unfortunate abandonment of female children,
a reality that exists even in our own country.
International and Regional Legislative Framework
On a global scale, the Convention on the Rights of the Child (CRC) serves as the primary
standard for adoption. The specific regulations for international adoption are outlined in the 1993
Hague Convention on the Protection of Children and Cooperation in Respect of Inter-country
Adoption (HC), which approximately 90 countries have ratified.Towards the end of the 20th
century, international adoption practices changed due to concerns about adoption-related abuses.
Article 21 of the CRC stresses the importance of parents and families as primary caregivers, with
the state assisting when needed. Only when a child is deprived of a family environment and the
state cannot provide alternative care in their home country is inter-country adoption considered.

The Committee on the Rights of the Child, which monitors CRC compliance, has expressed
concerns about adoption standards violations in many countries. It strongly recommends that
states involved in international adoption ratify the Hague Convention to address these issues.
The Hague Convention (HC) focuses on protecting children in inter-country adoption by
establishing safeguards and international cooperation to prevent illicit practices rather than
promoting the practice itself. It complements the CRC's provisions and establishes mechanisms
to facilitate compliance with these obligations. This includes the role of a Central Authority in
each country and accredited adoption bodies to oversee the adoption process.

The HC follows the "subsidiarity principle," which means considering in-country placement
options before international adoption. Other key aspects include assessing adoptive parents'
suitability, prohibiting non-regulated adoptions, ensuring free and informed consent, and
automatically recognising Hague-compliant adoptions by all participating states. The 1993
Convention emphasizes informed consent, preserving information on the child's origin and data
usage restrictions. A Special Commission monitors the HC's operation and provides advisory
recommendations.

Additionally, there are regional instruments like the European Convention on the Exercise of
Children's Rights (ECECR), the European Convention on the Adoption of Children 1967, and
Inter-American Convention on Conflict of Laws Concerning the Adoption of Minors 1984,
which protect and promote children's rights, especially in adoption matters.
Adoptions from Non-Hague Countries
Despite the increasing number of countries that have officially accepted it, most international
adoptions still occur outside the established framework. Non-Hague Convention countries, which
have less strict adoption procedures, may be more willing to send their children for adoption
abroad. For example, the number of inter-country adoptions from Ethiopia increased
significantly over the past decade, going from just a few hundred per year to over 4,000 in 2009.
As a result, non-Hague Convention countries often appear more attractive for international
adoption. However, if this trend leads to growing pressure on these countries to develop
inter-country adoption simply to compensate for the reduced demand from Hague-compliant
countries rather than a genuine commitment to adoption principles, the actual goals of adoption,
including international adoption, could be compromised once again.

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 of 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 becomes the legitimate child of his adoptive parents with all the
rights, privileges and responsibilities that are attached to the relationship".

The amendment underscores that under this law, adoption allows a child to legally become the
child of their adoptive parents, with all the associated rights, privileges, and responsibilities. This
was a significant change because prior to this, adoption by non-Hindus was guided by the
Guardian and Wards Act of 1890. Minority communities like Christians, Muslims, or Parsis did
not formally recognize adoption, which meant that adoptive parents had a legal status as
guardians under the Guardian and Wards Act of 1890.
Using the rule-making authority granted by Section 68 of the Juvenile Justice Act (JJ Act) of
2000, the JJ Rules of 2007 were enacted. These rules have now been replaced by a new set of
Guidelines issued by the Ministry of Women and Child Development, Government of India,
dated June 24, 2011, in accordance with Section 41(3) of the JJ Act. Importantly, Rule 33(2)
stipulates that the 2011 Guidelines, as notified under Section 41(3) of the JJ Act, will govern all
matters related to inter-country adoptions, giving them legal status.

Rule 8(5) outlines priorities for the rehabilitation of a child, with a preference for in-country
adoption. It sets a ratio of 80:20 for in-country adoption to inter-country adoption, excluding
special needs children, in total adoptions processed annually by a Recognized Indian Placement
Agency (RIPA). Rule 8(6) specifies the order of priority for inter-country adoptions, which
includes Non-Resident Indians (NRI), Overseas Citizens of India (OCI), Persons of Indian
Origin (PIO), and Foreign Nationals. Rule 31 discusses the authority of the State Government to
establish an Adoption Recommendation Committee (ARC) responsible for reviewing and issuing
a Recommendation Certificate for placing a child in inter-country adoption.

Recognition of Inter-Country Adoption in India

The debate about the validity of inter-country adoption began in the case of In Re Rasiklal
Chhaganlal Mehta, where the court ruled that inter-country adoptions under Sec 9(4) of the
Hindu Adoptions and Maintenance Act, 1956 should be valid under the laws of both countries.
Adoptive parents must meet their country's adoption requirements and obtain the necessary
permissions to ensure the child's immigration and nationality in the adoptive country.
In a public interest litigation petition, Laxmi Kant Pandey v. Union of India, the Supreme Court
of India established guidelines for inter-country adoptions. The Central Adoption Resource
Agency (CARA) was recommended and established in 1989 to regulate inter and in-country
adoptions. These guidelines have been legally recognized and are now in force throughout the
country. In the case of Mr. Craig Allen Coates v. State through the Indian Council for Child
Welfare and Welfare Home for Children, the court ruled that if adoptive parents fail to clearly
establish their motive for adopting a child from another country, the adoption may be considered
malicious, and CARA should implement stricter guidelines in such cases.
An important aspect of inter-country adoption is the preference for prospective adoptive parents
of Indian origin, as highlighted in Karnataka State Council for Child Welfare v. Society of Sisters
of Charity St Gerosa Convent. The emphasis is on the well-being of the child and their cultural
heritage. A recent Bombay High Court judgment, Varsha Sanjay Shinde & Anr. v. Society of
Friends of the Sassoon Hospital and others, states that once overseas adoptive parents approve a
child, Indian parents cannot claim priority, and preference should be given to the overseas
parents.

The court also provided guidelines for both in-country and inter-country adoptions, emphasizing
adherence to the 2011 Guidelines. It suggested showing the child to as many Indian parents as
possible within a specific time frame and prioritizing foreign parents only if Indian parents
decline the adoption. Another recent Delhi High Court judgment questioned the validity of
adoptions made directly by biological parents without CARA's intervention. CARA argued that
legislative mandates cover not only orphaned or abandoned children but also those surrendered
by their biological parents directly to adoptive parents. This case centered on interpreting the
Juvenile Justice Act of 2000 and its 2006 amendment.

Central Adoption Resource Authority (CARA)

CARA, an autonomous body under the Ministry of Women and Child Development in India,
manages both in-country and inter-country adoptions. To adopt a child, foreign applicants must
be sponsored by a government-recognized social or child welfare agency in their home country,
which should also have CARA's recognition. CARA's guidelines prioritize in-country adoption
over inter-country adoption, allowing the latter only when a suitable home cannot be found
within the country.

The guidelines specify that all Child Care Institutions (CCIs) must register under the Juvenile
Justice (Care and Protection of Children) Amendment Act, 2006, according to Section-34 (3).
State governments must recognize suitable CCIs as specialized adoption agencies under Section
41(4) of the Juvenile Justice Amendment Act, 2006. These specialized adoption agencies can
handle inter-country adoption only when they meet specific criteria, including infrastructure for
both typical adoptable children and those with special needs, along with quality child care
services. They must also comply with all CARA requirements.

Who is 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 made within the period of four months. In the case of a
surrendered child, two months of reconsideration time shall be given to the biological parent or
parents after surrender before declaring the child legally free for adoption.

Problems Subsisting in Intercountry Adoptions

1. Post Adoption Negligence
Once a child is adopted internationally, it becomes challenging to conduct post-adoption
follow-ups. While CARA guidelines define the responsibilities of Indian diplomatic missions,
foreign accredited agencies, and professional social workers in preventing post-adoption
mistreatment of the child, these measures have proven to be largely ineffective.

2. 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. This process becomes even more
challenging when other surviving family members contest the succession. The country where the
property is located will handle the matter according to its domicile laws. If a mistake occurs and
the succession becomes legally void, the adopted child may lose their legal rights to the property,
leading to significant financial, physical, and emotional hardships. Unfortunately, India has not
established any agreements or treaties to resolve such succession issues, and British law still
governs such cases. Over time, every adopted child often develops a strong desire to learn about
their biological roots. Legal disputes over successions from the biological family can be
incredibly frustrating for the adoptee.
 3. Child Trafficking in the Guise of Transnational Adoption
Transnational crime involves illegal activities that span multiple countries, such as drug
trafficking, human smuggling, cybercrime, and money laundering, often exploiting legal
loopholes and borders. The biggest threat to the child in inter-country adoption is becoming a
victim of a child trafficking racket. After the domestic procedure for adoption by the foreign
adopting parents is over, it becomes more of 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.

4. Post-Adoption Identity Crisis

The Juvenile Justice Care and Protection (Amended) Act of 2006 permits single individuals,
same-sex couples, and childless couples to adopt without restrictions on their biological children.
While it simplifies domestic adoption, inter-country adoption remains complicated. Foreign
prospective parents must initially act as guardians and bring the child to their country, as the law
doesn't outline the procedure for overseas adoption. International law must recognize Indian
adoption, and the child's well-being depends on the "guardians" becoming legal parents under
their country's law.

5. Guidelines Lack Force of Law

CARA guidelines most often need more 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 they have left India. It
should be noted that as the number of adoptions increases, the number of regulations followed is
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 be well-rested. Lack of regular checks at the adoption agencies and how 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.

Conclusion
Inter-country adoption demands careful handling to prevent child trafficking, exploitation, and
abuse. Recommendations include:
● Separate CARA guidelines for in-country and inter-country adoptions.
● Stricter licensing procedures for adoption agencies.
● Awareness programs for birth parents.
Specific suggestions for inter-country adoption involve preventing statelessness, promoting
treaty compliance in non-Hague countries, providing professional counselling, ensuring secure
immigration procedures, and considering bilateral relationships with receiving countries.
International agreements aim to ensure the correct determination of children's adoptability,
proper reasons for inter-country adoption, selection of suitable adoptive parents, and the proper
adoption procedures. The Indian legal system should establish improved laws and guidelines for
inter-country adoption, enhancing child protection and upholding their rights. Judges must be
trained on inter-country adoption guidelines, and a uniform; stringent procedure should be
developed. Cooperation among all involved parties is essential to ensure adherence to
international norms and the well-being of adopted children.
Bibliography

1. Lucić, N. (2015). ADOPTION OF A CHILD WITHOUT CONSENT OF ITS PARENT WITH A

INTELLECTUAL DISABILITY : CASE OF A.K. AND L. V. CROATIA.
https://core.ac.uk/download/197873859.pdf
2. Pervin, Eve. "My Brother, My Self: An Autoethnography of Siblinghood and Disability." 2018,
https://core.ac.uk/download/158457649.pdf.
3. Doctors without borders | The Practical Guide to Humanitarian Law.
https://guide-humanitarian-law.org/content/article/3/adoption-2/
4. How to adopt a child legally. https://www.anilmalhotra.co.in/post/how-to-adopt-a-child-legally
5. Child Rights in India: Law, Policy, and Practice 0199470715, 9780199470716 - EBIN.PUB.
https://ebin.pub/child-rights-in-india-law-policy-and-practice-0199470715-9780199470716.html
6. Malhotra, R., & Malhotra, A. K. (2007). Inter‐Country Adoptions from India. Commonwealth
Law Bulletin. https://doi.org/10.1080/03050710701594555
7. ADOPTION RIGHT IN INDIA.
https://www.brainboosterarticles.com/post/adoption-right-in-india
8. Adoption - Law Chambers of Hari G Ramasubramanian. http://grhari.com/adoption/
9. CARA Guidelines: Scope, Strength and Success.
https://www.legalserviceindia.com/legal/article-9956-cara-guidelines-scope-strength-and-success.
html
10. Convention on the Rights of the Child
11. Re Rasiklal Chhaganlal Mehta AIR 1982 Guj. 193.
12. Mr. Craig Allen Coates v. State Mr. Craig Allen Coates v. State
13. Lakshmi Kant Pandey v. Union of India, 1984 AIR 469