Child Adoption and its present situation in Nepal

Saurav Ghimire 9849867571 Saumire@yahoo.com

I.

INTRODUCTION:

a.

Background:

Adoption is a means by which a child of one set of parents becomes a child of another set of parents by a legal or accepted practice. Adoption can be domestic or inter country. In domestic adoption the adopted child and adoptive parents have same nationality where as in inter-country adoption they belong to different countries. Today inter-country adoption has been able to draw much public attention. The western countries like USA, UK, Italy, France, Sweden, Germany, Canada, Denmark, etc. have been adopting Nepalese orphan children. A child that is adopted into a family has a very high chance of being treated as a domestic servant who is expected to work in return for food and board and be glad of it rather than being treated as true son or daughter. Though inter-country adoption is viewed as solution to problems of miserable and homeless children of the third world nations, it is not free from a serious allegation of providing opportunity for human trafficking. The provision for adoption of Nepalese children by foreigners started since 2020B.S (1963A.D).1But any concrete reason regarding this provision is not yet defined. It should have objective of providing family environment for rear and care of children but the trend and procedure observed till now seems to be money oriented. The trend of inter country adoption came to limelight particularly after war in Vietnam, Korea and war of liberalization in Bangladesh when destitute children and war babies and orphans were taken to other countries for adoption. 2

1 2

Deepak Sapkota, Dharma shantan Bibadh ko churo, Nagarik Daily, 12 th March 2010. Ghazishamsur Rahman Md. Abdul Halim, Adoption in Bangladesh Law and Practice(A research report of BSEHR1992), page3.

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b.

Rationale:

The study on adoption seems to be very negligible in Nepal. Very few resources are found regarding this issue. Any visible step for welfare of adopted children has not been seen yet. The major objectives of this report are presented below: i. ii. To know about the present situation of child adoption in Nepal. To know about the actions taken by government for regulation of adoption process.

c.

Methodology:

The research is doctrinal in nature for which books and academic materials including newspapers, articles and internet resources have been used. The researcher has even visited orphanages and interviewed wardens for better understanding of the context.

d.

Limitation:

This study deals with the situation of child adoption in Nepal and has tried to cover the issue in broader perspective. Although the topic suggests the present situation of child adoption in Nepal, only the aspects covered by published sources and media have been referred.

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II.

Adoption:
Concept:

a.

According to Black Law Dictionary, Adoption means Legal process pursuant to statue in which a childs legal rights and duties towards his natural parents are terminated and similar rights and duties towards his adoptive parents are substituted. To take into ones family the child of another and give him/her the rights, privileges and duties to the child. Adoption is a means by which a child of one set of parents becomes a child of another set of parents by a legal or accepted practice. Adoption is based on assumption that the family is the best institution for the care and protection of the child. For the adopted child it is a means of acquiring substitute home that is permanent. In context of Nepal the trend of inter-country adoption is very high in comparison to domestic adoption. Many arguments are put forward in defence of inter-country adoption as many couples are willing to adopt such children. It is based on interest that they should be allowed to find a comfortable home transcending national boundaries. Inter country adoption is viewed as solution of problems of miserable and homeless children of third world countries because poor nations of the third world countries will not be in position to institute Child Welfare Programme for such great number of children in near future. Though adoption is becoming more popular and is being encouraged, it also carries a little bit of suspicion and doubt about the lives of the adopted Nepalese children living abroad with their adoptive parents. Sometimes, negative rumors are heard about the treatment they get once they land in the country whose citizens have adopted them. Although there are certain rules and regulations regarding adoption by foreigners, but once they are taken out of the country, it is not easy to have further information about their conditions. It is clear that adoptions beyond geographical and national boundaries may create many problems. Lack of medical records of child and other records of childs parentage characteristics or experiences are some of the problems. Sometimes the dissimilarity of legal provisions of the childs country of birth and the country of adoption create problems. In many cases the absence of adequate social studies of the perspective adopters and follow up arrangement lead to possibilities of failure. Such adoption has

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always been a matter of debate that emerges a vital issue whether it is desirable for a child to become a permanent member of a family with biological and cultural differences.

b.

Legal framework:

i. Muluki Ain 2020: Nepal Government has prescribed terms and condition by exercising the power conferred by Section12A of the Chapter Adoption of Muluki Ain (Act of the Realm). Following are the terms presented in brief: A person except one who has his or her son or daughter may adopt a son or daughter by executing a deed to that effect: The concept of law of adoption in Nepal was gender discriminatory as the initial provision even excluded to adopt daughter. The provision of adoption of daughter was added since 6th amendment. Re-adoption shall be void: One who is once adopted as an adopted son or adopted daughter shall not be readopted and if found shall be void. This is so to safeguard the legal entitlements of the adopted person. However adoption shall not be invalid as a result of subsequent birth of child from the person making adoption. Age difference between adoptive parents and adopted children: There shall be a difference of at least 30 years between the age of an adopted son or daughter and adoptive parents. The concept of 30 years difference in between adoptive and adopted person may be seen as rational relationship between adoptive and adopted person. Same entitlement as natural son or daughter: An adopted son or daughter shall be entitled to the same rights as of natural son or daughter. Such an adopted son or daughter shall not be entitled to make a claim for partition share from his or her natural father.
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 Duty of adopted son or daughter towards adoptive parents: If an adopted son or daughter does act such as failing to provide food and clothes to the adoptive person, failing to look after and misusing the family property, giving physical or mental torture to them such adoptive parents may revoke the adoption. The adopted son or daughter whose adoption is so revoked shall be entitled to the partition share from his or her natural father. Duty of adoptive parents: If an adoptive person abandons the adopted child from the house without providing such son or daughter with food and clothes or fails to make provision of education and medical treatment, except for any reasons as mentioned in law, such an adopted person, be entitled to seek partition share from such an adoptive person. One who has only one son or daughter shall not be allowed to give the son or daughter for adoption nor shall the adopting person adopt him or her. Any such adoption shall be void.

Criteria and condition for foreign national: If any foreign national wishes to adopt any citizen of Nepal, who may be adopted as son or daughter in accordance with the law, terms and conditions of Government of Nepal: Character Economic condition Recommendation of concerned government or embassy Permission may be granted only if the law of the country of such a foreign national

provides that an adopted son or daughter has the same right as a natural son or daughter has.

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ii. Adoption of Nepalese children by foreign national terms and procedure 2065: The couple has to attain four year of marriage. Women unmarried, widowed, divorced and who have attained thirty five years and under 55 years without having any issue. A foreigner who has a son may not adopt a boy and one who has a daughter may not adopt a girl. No foreigner may adopt a child unless the age difference between him/her and the adoptive child is at least 30 years. If the foreigner citizen has a child the age difference between the child and adoptive child must be 3 years A child is eligible for adoption if s/he is an orphan or agreed by concerned parents or guardian for adoption. Either husband or wife permanently sterilized, having two or more sons and having two or more daughter, extremely poor and not in the position to look after their child can only give child for adoption. A foreigner who adopts a Nepalese child must submit details about the education and health care of such children along with the photograph to the ministry or to Bal Mandir each year until child reaches age of consent.

iii.

Recent Amendment The amendment came into effect to ensure that children being approved for inter-country adoption are genuinely orphan or destitute: To summit details about each orphan child to Probe and Recommendation Committee within 7days and to family selection committee under MWCSW within 14days after the concerned District Administration Office verifies that child that child is an orphan or destitute. Organization which has been engaged for six years in the field of child welfare are eligible for facilitating inter-country adoption. Any children organization found involved in fraudulent practices will be barred from facilitating inter-country adoption for next 5years.

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 Foreign children organization and agency facilitating inter-country adoption from Nepal should set up a liaison office duly registered with the government and pay specified amount. The amendment has made a separate arrangement in case the internationally renowned personalities choose to adopt children from Nepal.

iv. Some present Laws protecting rights of child: Interim Constitution of Nepal 2063, Article 22 Sub-article 4 (Fundamental Rights) states that Helpless orphaned or mentally retarded children who are victims of conflict or displaced and street children at risk shall have the right to receive special privileges from the state to ensure secure future. Child Right Act, 2048, has mentioned conditions for establishment and operation of Children Home in Section 34, Orphans shall be kept in Children Home in Section 35, duration of children in Children Home Section 36 and Section 41 talks the Head should keep record and report of children. Convention on Rights of the Child 1989states that every child has right to guardianship. 10 years National Plan (2061/62-2071/72) for children, also mentions that Orphanage and Children Home shall be regulated so as to end violence, discrimination, misconduct against children. There is Children Home Operation and Management condition 2067 for regulation of children homes.

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c.

Present Situation of adoption in Nepal:

The concept of adoption is not a new characteristic of modern societies. It was also prevalent in the societies of ancient times. However the idea of adoption has changed in passage of time. In earlier times the focus was on the needs of childless couples but today the main goal of adoption is creation of permanent family for the children who lack a family and home of their own. Now adoption is based on the needs of the child rather than the needs of parents. According to Central Children Welfare Committee, there are 11,137 children in 444 children homes in 37 districts of Nepal.3 According to Ministry of Women, Children and Social Welfare (MoWCSW) only 36 children have been adopted by Nepalese parents where as 127 children by foreigners in 2010. (From Baishakh 2050 to Shrawn 2065, total number of children adopted by foreigner is 2234). The practice of adoptions of Nepalese children by foreign nationals has started since last few decades. Though unclear, according to MOWCSW, over 2400 Nepalese children have been adopted since 2000 by parents in western countries. People in the country have different opinions about the adoption of Nepalese Children by foreigners. Some say it is good for the children as they think that such children will have a better future and better life. On the other hand there are also people who think adoption of Nepalese children by foreigners should be discouraged and stopped as they think that often such children are either ill treated or abused in different ways. In fact, there have been some cases where adopted children have been ill treated and abused. The inter country adoption include high chances of fraud, abuse and trafficking of children. Any effective plans and policies for the welfare and security of children have not been seen yet in Nepal. There are various agencies promoting inter-country adoption in Nepal. It cannot be denied that these agencies, to some extent have been successful in giving new life and future to many children, whose life and future otherwise would have been in uncertainty and darkness. For instance, a news was published about Maria who is a world champion in the Line Dance competition held in Britain, 2007 was adopted from Nepal by a Finnish couple in 1980 when she

Chandrika Khatiwada,Shiv Bahadur Thapa, Bal samrakshyan, Central Child Welfare Board, Institute of Child Right Studies, December 2010, Page87.

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was just months old, weak and fragile.4 She might not be in such position if she was not adopted but every adopted child may not be lucky like Maria. However, we cannot totally deny some incidents of ill-treatment and violation of child rights faced by some adopted Nepalese children abroad. At present there exists no agency with the sole objective of promoting domestic adoption in Nepal.5 Though domestic adoption is considered as a better option for children than inter-country adoption as it allows the adopted children to grow up in their own country and within their own culture only a few child care institutions are engaged in promoting domestic adoption. The enquiries also revealed that the constitution of some organizations do not support domestic adoption. Hence the confusion is that orphanages being operated by Nepali people in Nepal to ensure better future of Nepali kids are not allowing eligible Nepali parents to adopt Nepali children.6 Moreover the children homes are involved in profiteering rather than working for the sake of children. The adoptive parents need to pay five thousand US dollar per children to children home for children welfare and three thousand US dollar to government of Nepal according to provision of inter-country adoption. Some of the children homes of Nepal are found to be involved in illegal activities as they money oriented. It has been found that there is huge flow of money in this business, and person with high social status like politicians, lawyers, journalist, etc are involved in trade of children in the name of protection. It has also been found that such children homes are earning a minimum 10,000 Euro by sending a child abroad in the name of adoption. The real parents of such children get only Rs20,000 and agents who bring children to those homes get Rs 5,000 to 25,000.7 Smaller the children higher the price so kept couples and pregnant women whose husbands were not identified in children homes for the purpose reproduction. And after reproduction the mothers were paid certain remuneration and asked to leave.8 Moreover the natural parents of a child who was taken to America fifteen years

4 5 6

News reporter, Adoption of Nepalese children, The Kathmandu post 17th April, 2011.

Bhawana Upadhyay, Rethinking adoption, The Kathmandu Post, 25th April,2010. Ibid 7 Rajesh Sharma, Trade of children in name of adoption, published in Voice of Children, July2008 available at http://www.nepal.blogspot.com (accessed on Jan 20 2011) 8 Lekhnath Pandey,Balgriha mai sishu janmaincha, Kantipur daily, 4th June, 2007.

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ago by procedure of adoption came in contact.9 Due to such contradictions some western countries have banned adoption of Nepalese children for certain period of time. The international community in Nepal has asked the government to strengthen the inter country adoption process to safeguard the childrens well-being. The group of western countries has appealed to the government to implement all 1993 Hague Convention on inter-country adoption regulations, including the measures aimed at ensuring authenticity and accuracy of documents, promoting family preservation and most importantly, safeguarding childrens well-being.10 An investigation by international law experts in November 2009 had found that the documents were regularly falsified and children homes were largely unregulated and the interest of the child was not considered at all. Moreover the government is not paying attention to collect information about the children who are sent abroad by the process of adoption. The former minister

Sharvadev Prashad Ojha was charged of managing to deposit the payments in his own account .On 6th Magh 2067, MoWCSW foundedInter-country adoption management committee and managed the deposit of payments in the committee which has been criticized as being in contradict with terms and procedures 2065. Such recklessness in procedures are rampagent in Nepal. Western countries had suspended adoptions from Nepal as investigations by the Hague conference on Private International Law found widespread abuse in adoption system. The international community has asked government to implement all provisions of Hague convention but legal officer of the ministry Sher Jung Karki said Nepal cannot ratify all the provisions under Hague convention immediately because the policy of government is to promote internal adoption not inter country adoption. So government claims that it is not obliged to fulfill all the demand of Hague. More than 500 applications were received each year before the government suspended inter-country adoption in 2009 following the report of rampant irregularities in the process.

News reporters, Dharmashantan ko bibadh,Kantipur daily,24 th oct.,2010. Himalayan News Service,14 countries urge govt. to bolster adoption process, The Himalayan Times, 25th Feb. 2010.
10

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However when the MWCSW published a notice on November 17, 2011 inviting the interested parents to file application for adoption only single Japanese couple has applied for it.11

III.

Analysis and findings:

It is obvious that domestic adoption is better option for children because it helps them to grow in their own environment without any cultural differences. Domestic adoption even eases the investigation of adopted children because they are guided by domestic laws. However we cannot also deny the benefit provided by inter-country adoption. It has been a good solution for the problems of developing countries which cannot make programmes for secure future of children. According to Ministry of Women, Children and Social Welfare (MoWCSW) only 36 children have been adopted by Nepalese parents where as 127 children by foreigners in 2010. There is no concrete reason regarding this huge variation in domestic and inter-country adoption. However, Nepalese society does not seem to be open regarding adoption of children. Adoption is still a taboo here. The childless couples are ready to spend thousands of rupees in test-tube baby but hesitate to adopt a child. This shows deeply rooted feeling blood is thicker than water still prevalent in present society. As discussed earlier the fault even lies in the agencies and children homes whose priority is inter-country adoption. Moreover the concerned parties seem to be money- oriented. The list of adopted children is presented in next page:

11

Arjun Poudel,1 adoption application in four months,Republica,19 thMarch 2012.

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List of Adopted Children in 2010

S.N. Country

No. of children adopted

1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

Italy Spain United States of America France Norway Switzerland Denmark Canada Sweden United Kingdom

52 6 36 15 3 3 1 2 8 9 227
Sagarmatha Children Home, Centre office, Kapan, Kathmandu.

Total
Source:

(This has been published by Ministry of Women, Children and Social Welfare, 2009/10.)

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Inter country adoption

60 52 50

40 36

30 Inter country adoption

20 15 9

10 6 3 0 3 1 2

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Adoption of Nepalese children by people from different countries is becoming more popular and is in rise. The above presented table and chart shows the number of Nepalese children adopted by foreigner. From the presented data we can figure out that there is variation in number of children adopted in different nations. There is not any concrete reason regarding this variation. In giving permission to a foreign national to adopt citizen of Nepal the Government of Nepal shall give permission only if the law of country of such a foreign nation provides that an adopted son or daughter has the same right as a natural son or daughter. The International Adoption working group encourages the government of Nepal to act swiftly to strengthen the adoption process. These countries include Australia, Belgium, Canada, Denmark, Finland, France, Germany, Israel, Italy, Norway, Spain, Sweden, Switzerland and the United States. The group appeals to the government to implement all 1993 Hague Convention on inter country adoption regulation and authenticity of document.

IV.

Conclusion:

Still the procedure of adoption is guided by Muluki Ain (act of realm) in Nepal. It is obvious that the procedure based on the provisions granted by Muliki Ain is incomplete. It has no concern about giving priority to children welfare. It focuses on benefit that can be drawn by Children homes or orphanages, adoptive parents, agencies involved in it and government institutions. For example the provision of adoption based on poverty does not promote children well being. Despite presence of living parents who are physically and mentally capable their child is approved for adoption which is not considerable. The government should give emphasis on enabling parents to look after their children rather than approving them for adoption.

In the procedure of adopting a child each couple pays more than twenty thousand US dollar. Hague convention also criticized the use of huge amount of money in procedure of adoption. Moreover where the amount is allocated, how is it used have become a matter of debate. Children homes along with police officer are found to be involved in activities of providing a normal child certificate of orphan. They also get brings children from poor parents in the name of providing proper care an education and present them for adoption. The information of adopted children are not usually disclosed. The visits to foreign land in the name of investigation dont
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seem fruitful. Many difficult issues regarding foreign adoption are addressed in Hague Convention and it is therefore essential this recommendation be taken seriously. Hague convention ascertains the childs security and welfare primary importance in any decision regarding permission of adoption. The law must be clear enough so that no chances of fraud, confusion, and abuse are encouraged.The government should also pay attention in establishment of family court to conduct preliminary adoption hearings and adoption finalization hearings. It should also focus on progremmes establishment of Child Welfare Institute, setting up a training program for social workers and setting up computerized Central Databank of orphaned children in Nepal. The collection of legitimate fees from foreigners would help to maintain the institute the databank, the family court.

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Bibliography -http://www.nepalblogspot.com -Kantipur Daily - Rahman Ghazishamsur, Halim Md. Abdul, Adoption in Bangladesh law and practice, A research report of BSEHR 1992. -The Himalayan Times -The Kathmandu Post -Republica

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