Inter-Country Adoption

[Cites 31, Cited by 0]

Law Commission Report

Inter-Country Adoption

LAW COMMISSION OF INDIA

ONE HUNDRED FIFTY THIRD
REPORT

INTER -- COUNTRY ADOPTION

1994

KLN' VSINGH ' . ~.' CHAIRMAN

(Former Chief Justice of , LAW COMMISSION
India) GOVERNMENT OF INDIA
Shasitri Bhawan

NEW DELHI-110 001

I oﬁace - 3334475
\_-_ 4 '
TELEPHo..r Residence ._ 3019465

0.0. No. 6(3) (15)/92-LC (LS) Augmt Q6, 1994

Dear Prime iMinister,
. '-:-. _. - . I! '- _ "

I am glad to forward herewith Law Commission'-s 1S3rd Report

on "Inter-Country Adoption?' »(,1_0th Report.' of the 143th--LﬁW

Commission). -

This Report deals with the matters relating to adoption of
Indian children by foreigners. In our country, about 18 million
destitutes and orphan children are being looked after in various
orphanages. Each year, about ﬁfty thousand children become
destitute as they are abandoned by the helpless parents and unwed
mothers. Hundreds of them die from malnutrition and disease
due to lack of clean water and inadequate sanitation. Since chil-
dren constitute the Human Resource of our country and they are
supremely important national asset, it is the duty of the State and
the society to take effective steps to secure and safeguard their
welfare and to provide opportunities to them to grow and develop
their personality in a healthy atmosphere. A number of Indian
children are being adopted by foreigners, sometimes, such adop-
tions have given rise to malpractices, as under the garb of adop-
tion, Indian children are taken abroad for domestic service and
unscrupulous exploitation. There is. however. no law to regulate
Inter-Country Adoption.

The Commission felt that there was need to regulate Inter-
Country Adoption of children by law; it therefore. took up the
matter suo mom for study. The Commission has, after an indepth
study and empirical research, prepared draft of a Bill on Inter-
Country Adoption which is annexed as Appendix 'A' to the Report.
The proposed draft Bill has been prepared keeping in view the

'guidelines laid down by the Supreme Court and the principles laid

down by the various International Conventions. Declarations and
Instruments.

Ii)

(ii)
We hope, the Government will take immediate steps to imple-
ment the recommendations contained in this Report as that would

alleviate the sufferings of children and prevent the malpractiees in
adoption of abandoned and orphaned children.

With regards,

Yours sincerely,

(Sd/)-
u<. N. SINGH)

HON'BLE SHRI P. V. NARASIMHA RAO,
Prime Minister & ~
Minister for Law, Justice & Company Aifairs.
NEW DELHI

CONTENTS

Cuuvrcn
1 Introduction . . . . . . . .
2 Present Legal Position . . . . . .
3 Legislative efforts on Adoption Law . . . .
4 The International Law on Adoption . . .
5 Judicial Guidelines on Inter-Country Adoption
6 The Role of the Child Welfare Agencies
7 Recommendations . . . . .
Aim-znbix
'A' The Inter-Country Adoption Bill l99
'B' Adoption of Children Bill. 1980 . . .
' 'C' Home Study Report
'D' On the Documents, Certiﬁcates and Declarations as mentioned in t..e
Supreme Court Judgement (1984) . . . . . .
'E' Child Study Report
'F' Law Commission of India's Letter to the Institutions
'G' List of Agencies recognised for doing Inter-Country Adoption of Chil-
dren to whom Letters at Appendix 'F' were addressed - - - -
'H' List of Agencies recognised for doing Inter-Country Adoption of Children
who responded to the Letter at Appendix 'F' . . - . .
'I' Practical working experience of the Child Welfare Apncies
'J' As per the Data reported by Recognised India: Social/Child Welfare
Agencies during the years 1989, 1990 and 1991 - . _ . .
'K' Placement Agency-wise Data relating to Children Adopted by Foreigners

(iii)

37
38

50
55

CHAPTER I
INTRODUCTION

ll. This report is undertaken suo moto to deal with the problem of
inter-country adoption of Indian children by foreigners. Since there is no law
to regulate the Inter-Country Adoption an effort has been made to prepare a
'draft of the proposed legislation.

. 1.2. The Constitution gives paramount consideration to the Welfare of
children. Clause (3) of Article 15 enables the State to make special provisions
for children. Article 23 prohibits tratﬁc in human beings and forced labour.
Article 24 provides that no child below the age of fourteen years shall be
employed to work in any factory or mine or engaged in any other hazardous
employment. Clauses (e) and (f) of Article 39 provide that the State shall
direct its policy towards securing. inter alia, that the tender age of children is
not abused, that children are not forced by economic necessity to enter avoca-
tions unsuited to their age and strength and that they are given facility to
develop in a healthy manner and in conditions of freedom and dignity and
childhood and youth are protected against exploitation and against moral and
material abandonment.

1.3. It is shocking that a staggering number of about 18 million destitute
and abandoned children in India are lying in several orphanages scattered all
over the country. It is estimated that each year 50.000 children become desti-
tute and get abandoned by the helpless parents and unwed mothers in our
country. Hundreds of them die from malnutrition and disease, due to lack of
clean water and inadequate sanitation. Population explosion in our country
has immensely contributed to the children's problems. We are the second
largest populated country in the world next to China. The 1991 Census places
the population of our country at 846.3 million out of which about one third
population is living below poverty line. India ranked 134 among 173 countries
_in 1993 in terms of the Human Development Index (l-IDI) of the UNDP.'
Poverty and illiteracy are age-old historical problems rooted in our social and
cultural set up. Their impact is now felt and experienced by a large number
of children. Elimination of poverty and education to all would take some years
buthin the meanwhile the abandoned children cannot be allowed to- live in the
lure .

1.4. Moral sense of society compels us to search a solution to the problems
of theabandoned children. In principle, every child has a right to love and
be loved and children are a "supremely important national asset" and the future
well being of a nation depends on how its children grow and develop. In our
country 'destitute or abandoned children are the shocking reality. There is a
wide gap between the principle and the reality as far as the welfare of destitute
children are concerned. This gap is abridged to some extent with adoption of
such children. Adoption is of great help in alleviation of the misery of the
destitute children. For abandoned Children Adoptive parents are the next
best substitute for the biological parents.

1.5. Appalling conditions of children of the third world apply,
large, to children in India and therefore if it
in Jndia decent family life where they can
attention of parents and enjoy the basic
food, health care and education and lead :1 life of basic human dignity with
stability and security. moral as well as material, there is no reason why such
children should not be allowed to be given in adoption to foreign parents.

_ by and
is not possible to provide to them
grow up under the loving care and
necessities of lile such as nutritive

1.6. Where the parents want to give their child in adoption or if the
child is abandoned, it would be in the interest of the child to give in adoption.
However, -effort must be made first to find adoptive parentsfor the child within
countryrbﬂcause such adoption would steer clear of any problem of assimi-
lation of the child in. the family ~o£¢1he; _ ' '
it) §I'3:rsuilﬁ.bl,B. adoptiwfparents thgg. '

f d within the country. it may

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become necessary to give the child in adoption to non-resident Indians, failing
which to foreign parents rather than allow the child to grow up in an orphanage
where it will have no family life and no love and affection of parents and quite
often, in the socio-economic conditions prevailing in the country, it might have
to lead the life of a destitute, half-clad, half-hungry and suliering,

1.7. In India adoption is not popular and the adopter generally chooses
a healthy and fair male child. Girls are not usually taken in adoption. Foreig-
ners on the other hand, do not have any reservation about sex, colour of the
skin or state of the child's health. There have been innumerable cases of
handicapped children who have been adopted, successfully treated and looked
after by foreign families. During the last four years, the number of children
given to foreign adoptive parents were 1272 in 1990, 1190 in 1991. 990 in 1992
and 1134 in 1993."

1.8. However, adoption 01' Indian children by foreigners has given rise
to malpractices. Under the garb of adoption, Indian children are taken abroad
for domestic services and unscrupulous persons exploit the situation by en-
couraging child tralﬁcking to the West. Judicial cognisance of these aspects
was taken by the Gujarat High Court in 1992.' The Court while dealing with
adoption of Indian children by foreigners observed that this entire movement
is not fool-proof. "it is not free from abuse and aberrations. The possible
existence of an international racket trading in such children and selling them
at proﬁt into slavery or prostitution cannot be altogether ruled -out." The
Supreme Court of India' also took cognisance of the problem on the basis of a
letter addressed by an advocate, complaining of malpractices indulged in by
social organisations and voluntary agencies engaged in the work of offering
Indian children in adoption to foreign parents. The letter alleged that not
only Indian children of tender age are under the guise of adoption exposed to
long horrendous journey to distant foreign countries at great risk to their lives
but in cases where they survive and where these children are not placed in the
shelter or relief homes. they in course of time become beggars or prostitutes for
want of-proper care from their alleged foster parents,

1.9. To put an end to such child exploitation. the Supreme Court' has
laid down speciﬁc principles and norms and provided the procedure to be
followed for adoption of Indian children by foreign parents. We will discuss
the same in detail in chapter 5 of this report.

1.10. Inter-country adoption is the most sensitive, controversial and
complex aspect of adoption. It involves a variety of principles and procedures
over migration, citizenship. the socio-economic situation of adoptive parents,
matching parents with the child and acceptance of the child in a different com-
munity and-culture. It requires the participation of the adoption agencies or
authorities in the overseas countries. Similar views have been expressed by
the New South Wales, Law Reform Commission on Inter-Country Adoption.'

1.11. in the interest of child, it is necessary to regulate inter-country
adoption by legislation and by strict collaboration between qualified and autho-
rized state and social authorities. It is hoped that as a result adoption will
not be merely based upon legislative arrangement but also facilitate the crea-
tion of an environment in which the child can grow in health and happiness
and be really integrated in the society of its adoption.

1.12. A considerable corpus of law, on adoption and guardianship rele-
vant for the purpose of this report is availabie. It consists of national enact-
ments and internationa1~privatc law and public 1aw--instruments. The
Guardians and Wards Act, 1890 and the Hindu Adoption and Maintenance Act
1956 are carefully examined and the relevant international instruments are
analysed duly. Besides the judicial pronouncements concerning the subject
have received a special consideration in this report.

1.13. In order to elicit responses on the present legal, procedurak atl-
mktistrative, institutional, supervisory and other--_r_l1evant safeguards and pro-
teéltions on adoption of Indian children by feﬁm parents, the Law Consis-
df India» had undertaken empirical stud§1.'t'=* Ill issued ?a questionnaire to

social and child welfare agencies/organisations, and the Central Adoption Re-
source Agency established under the directives of the Supreme Court' and
working under the control of the Ministry of Welfare, Government of India.
The replies and suggestions received by the Law Commission have been scruti-
nised and analysed. Due welghtage has been accorded to the suggestions while
formulating the recommendations.

l.l4. The Report is structured not only on the guidelines laid down by
the Supreme Court but it is based on empirical investigations. Further the
report has utilised the relevant primary and secondary source materials avail-
able und the practical work experience gained by the child welfare agencies
over the last more than a decade or so in the ﬁeld of inter-country adoption.

F0()'l'N0'l'ES--- CHAPTER 1

1. Economic Survey 1993-94 : Government of India: Chapter 9 : Social Sectors. pp. 146-159

Annual Report, I992-93, Ministry of Weitare, Govt. oflndia. New Delhi (Hindi Erin) 11.7] .
Annexure 40.

Re : Rasiklal ('Ir/mgm-/la! itielzla, AIR 1982 Gujarat 193.

I.. K. Pandeyvjs U0] ( I984) 2 SCR 795,

ihid.

. R('1'i('1t' nfthe Arinpriizii of Childrrtir Arr, I965 (l\'SW'). lFSl'€S rarcr 9, P. 67, {am 10.2.
. LK. Pandey \'-"S U01 (1984) 2 SCR 795.

-J Ox U: -h '-«J
. . u

CHAPTER 2
PRESENT LEGAL POSITION

2.]. There is no enactment on iutepcountry adoption as such in India.
However. a large number of Indian children have been adopted by foreign
parents belonging to different countries as mentioned earlier.

2.2. The Law Commission of India had incidentally considered' the
question of appointment of guardian residing out of India for a person living
in India. The general consensus at that time was that the matter was in the
discretion of the court and there was no rigid rule prohibiting appointment Of
foreign person as a guardian under Section 7 of the Guardians and Wards Act,
1890: No recommendation suggesting amendment to the Act was made and
the question of appointment of institution as guardians was deferred.

2.3. Presently, inter-country adoptions are regulated and Supervised by
the principles. norms and procedure laid down by the Supreme Court? Earlier.
the Guiarat High Court grappled with the question and laid down guidelines
governing adoption of Indian children by foreigners." While doing so the Court
relied upon the Full Bench decision in Marggarrma M'a'ria v_ Dr. Chaicko.'

2.4. In R.C. MehI;i's" case District Judge of the Rajkot granted permis-
sion under section 9(4) of the Hindu Adoption and Maintenance Act, 1956 for
giving a minor female child for adoption to 3 West German couple. The order
was issued on the basis of adoption deed executed for the purpose, although it
did not mention that the child was to be taken away by the adopted parents to
West Germany. Pursuant to the District Judges order the hdooted parents
applied for issue of passport for the child but the same was refused on the
ground that the order of the District Judge did not contain any direction for
taking the child outside the Cfltlnlfy. The adopting parents made an applica-
tion to the District Judge for issue of :m order directing the Passport Authori-
ties to issue the passport. In the meantime a writ petition was ﬁled in the
High Court for quashing the order of the District Judge. The writ petition was
referred to Division Bench but on the date of hearing of the petition. permis-
sion for_ withdrawal of the petition was sotvght as it was realised that proper
procedure would be to make an application to the competent authority under
the Guardians and Ward}. Act. 1890. The Court permitted withdrawal.

Another matter relating to adoption of lndian child by foreign parents
was considered by the Supreme Court. The Supreme Court in the absence of
any law regulating the iiiter-country adoption referred to Articles 15, 34 and
39 of the Constitution and Sections 7 to 9 of Guardians and Wards Act. 1890
in issuing directions to regulate adoption of children by foreign parents.

These cases illustrate us to how the provisions of the Guardians and
Wards Act. 1890 which was never intended to be used for adoption of children
by foreign parents was put to useful purpose in the absence of :1 law regulating
such adoptions.

2.5. Basically the Guardians and Wards Act, 1890 hereinafter referred
to as 'the I890 Act'. provides for appointment of guardian of minor children
and it does not regdatc the adoption of children by foreigners or by lndians.
But its provisions have been pressed into service to facilitate adoption of chil-
dren by foreigners. Whcre a foreigner desires to adopt an orphan child he
makes an application before the District Court for appointing him as guardian
of that child and after such appointment the foreigner takes away the child to
his country with the permission of the Court.

2.6. As already mentioned there is no enactment having direct bearing
on regulating adoption of Indian children by the foreigners. There is also no

explicit provision in the Guardians and Wards Act, 1890 p_roviding fgr int_er-
country adoption of Indian children. However. the courts m then' dlscretnon

have put to useful purpose the Act. 1890 and regulated the inter-country
adoptions.

F OOTNO'I'ES--'--CI-IAPTER 2

1. 83nd Report, 1980, on the Guardians and Wards Act, 1890 and provisions of the Hindu

Minority and Guardianship AC1. I956
L.K. Pandey \'. U01 (1984) 2 SCR 795
In re 2 KC. .Mekta, AIR 1982 Guj 193
. AIR 1970 Ker. 1

AIR 1982 Gui. 193

.""'E*'."

2~l M of L&JINDl9S

CHAPTER 3
LEGISLATIVE EFFORTS ON ADOPTION LAW

3.1. In the past, efforts have been -made to formulate a comprehensive
law relating to adoption in India but on- account of one or the other criticism
the efforts could not succeed.' The last attempt to codify the law, on the sub-
ject was made in December 1980, when Adoption of Children Bill was introduced
in Lok Sabha. This did not apply to Muslims. This Bill too was criticised
in some quarters and it also lapsed. Since then no efforts have been made to
introduce the Adoption of Children Bill in order to reform and modernised law
in our country.

3.2. At this stage, it would be appropriate to brieﬂy refer to -the salient
features of the 1980 Bill to the extent relevant for the purpose of this Report.
The 1980 Bill proposed that--

(a) Any person who is below 18 years and who is not already adopted
or married could' legally «be adopted by any person of sound mind
who is at least 25 years old.

(b) An adoption order of the District Court or the City Civil Court could
be necessary. Otherwise, the adoption w0uld be illegal.

(c) A single person, or a married couple jointly, can adopt. T'here must
be a difference of at least 21 years in the age of the child_ and the
adopting. parent or parents unless the Court otherwise permits.

(cl) An illegitimate child could be adopted -by its parents, either alone or
jointly with the spouse.

(e) A female cannot be adopted solely by a male unless he is her' father
or there are other 'special circumstances' which justify an adoption
order.

(f) The consent of both 'parents or guardian or the persons managing
the in_stitution of the child care to be given in adoption is necessary.
The consent of the father of an illegitimate child is not required.
The consent can also be dispensed with by the Court if the parents
or parent cannot be found or are or is guilty of neglect or ill-treatment
of the child.

(g) The Court must be fully satisﬁed that the effect of the adoption order
is understood by both sets of parents.

(h) The wishes of the child. if grown up enough to understand his interest,
will be an important factor.

(i) The welfare of the child will be the paramount consideration.

(j) The Court can impose suitable conditions in the adoption order in
the best interest of the child. The Court can intervene if an adopted
child is ill-treated.

(k) Any person aggrieved by an adoption order can appeal to the High
Court.

(1) The legal effect of an adoption order is to sever all the ties of the
child in the family of its birth an-d give it the status of a child born
in lawful wedlock to the adoptive parents.

(In) A licensing authority for adoption institution for each state is to
be set up by law. One half members of such licensing authority
will be women. - No institution will be permitted to function without
a licence from the authorities.

(n) The Bill contained two speciﬁc and material clauses 23 and 24 for
adoption of an Indian child by a foreigner. These clauses will be
discussed later.

3.3. It is signiﬁcant to note that the 1980 Bill gave equal rights to 8
married woman to adopt a child jointly with her husband. It also required
the consent of both parents and it further allowed an unmarried woman to'adopt
a child, The welfare of the child was the paramount consideration for adoption
of a child under the 1980 Bill.

3.4. Incidentally it is relevant to note that the Law Commission? had
made recommendations, on the Removal of Discrimination against. women in
matters relating to guardianship and custody of minor children and elaboration
of the Welfare Principle with a view to facilitate guardianship of an adopted
son or daughter to 'erase the injustice to the woman' in obeisance to the letter
and spirit of the Constitution. The report dealt with the Welfare principle and
emphasised the welfare of minor should be the .paramoun.t oonsideration in the
appointment of any person as guardian of a Hindu minor by a Court. be it
a male or female.

3.5. We now proceed to discuss the principles contained in clauses 23 and
2.43 of the 1980 Bill as they are material provisions directly relevant for the
purpose of regulating the inter--country adoption:

(:1) Clause 23 makes the taking or sending of an Indian child outside
India for purposes of adoption punishable except where the child
is so sent or taken out under the authority of a provisional adoption
order passed by a District Court under Clause 24.

(b) Clause 24 empowers the Distriét Court to make a provisional adoption
order permitting a person who is not domiciled in India and who
wants to -adopt under the law of the country of his domicile a child
residing in India, to take the child out of India for the purpose.
This introduces the element of 'provisional adoption order' as distin-
guished from 'adoption order'.

(C) Adoption being a 'legal fiction, the aforesaid clause introduced a
deeming provision-,to;the eliect that a child in respect of whom an
adoption order is made shall be deemed to be as the child born to that
adopter or the adopters in lawful wedlock for all purposes and
all the ties of the child in the family of his birth shall be deemed
to be severed and replaced by those created by the adoption order
in the adoptive family.

(d) In respect of a provisional adoption order, the elements present are----
(I) an applicant, a person who is not domiciled in India, intends to
adopt a child under the law of the country in which he is domiciled;
(2) for the purpose of intended adoption the applicant desires to
remove the child from India to his country; (3) the Court in this
situation may make a provisional adoption order authorising the
applicant to remove the child for intended adoption; (4) the Court
gives the care and custody of ﬁle child to the applicant pending
his adoption in country of his domicile.

(e) A certiﬁcate by the Central G-overnmen-t to the eﬁect (i) that the

applicant is in its opinion a tit person to adopt the child; (ii) that
the welfare and interest of the child shall be safeguarded under the
laws of the country of the domicile of the applicant; and (iii) that
the applicant has made proper provision to enable to the child to be
repatriated to India, if necessary. is to be submitted before a pro-

visional adoption order is passed by the District Court.

(f) The child remains in cusody of the applicant until eventual adop-
tion withintliellutuizrcottnll-yofﬂteappliezuttakesplaee.

3.6. In view of the above discussion,

especially as there is no codiﬁed

law on inter-country adoption, there is imminent necessity to have enactment
regulating inter-country adoption.

FOOTNOTES--~C!-[AFTER 3

A Bill on the subject was first introduced in Parliament by an independent member.
Jayshree Raiji in 1955. It was withdrawn at that time as the then Law Minister wanted
a_smoolh passage for the Hindu Adoptions and Maintenance Bill. Later on two other
Bills were imroduced i_n 1967 and 1910 but both these bills also Iapsed- Then the
Adoption of Children Bill 1972 was introduced in the Rajya Sabha and was withdrawn
on account/of the stormv opposition by the Muslim Members of the Parliament
on the ground that it would affect the tenets of their personal laws.

mu: Report. l3&9--nn Removal of Discrimination Against Women in matters Relating
to_Gqardianshi and Custody of Minor Children and Elaboration of the Welfare
Principle.

- Appendix 'B7

CHAPTER 4
THE INTERNATIONAL LAW ON ADOPTION

4.1. A radical shift from the ancient laws and practices to the contem-
porary laws and practices on adoptions in most states in the world has caused
profound impact on the International Law on adoption. A brief statement
on such development is therefore pertinent and necessary at the outset of this
part of report. It is because the International Law like state law does not
operate in vacuum but responds to the problems which centre around the gravity
of social and cultural developments in the cornity of nations.

4,2. Adoption is so widely recognised that it can be characterised as an
almost worldwide institution with historical roots traceable into antiquity.

Continuity of male line in a particular family. the welfare of the ado
in this world and the next was -the primary concern of ancient adoptions. Little
attention was paid to the welfare of the child adopted.

In contrast, contemporary laws and practices aim to provide child wel-
fare and are regarded as one facet of the state's general programme to its
children. Although the desire to continue a family line is still the personal
motive for adoption, society's interest now centres more on the creation of a
parent-child relationship between a married couple and a child. This attitude
developed primarily in the period following World War I, when vast numbers
of illegitimate births increased. In the latter part of the 20th century, a decline
in the number of -children available for legal adoption stimulated changes in
traditional restrictions like placements across religious and ethnic lines. Single
parent adoptions are now accepted in many states.'

4.3. The development as discussed above has been reflected in the inter-
national efforts in protecting the children from exploitation and advancing their
welfare as the paramount consideration and «these efforts have been manifested
in the international instruments. These are as under :

(1) The Geneva Declaration of the Right of the Child of 1924.

(2) Declaration of the Right of the Child adopted by UN. General
Assembly on November 20, 1959.

(3) Draft Guidelines of Procedure concerning Inter-Country Adoptions
formulated by Expert Group and adopted by the Economic and
Social Council of the United Nations in its 20th Session.

(4) The Hague convention of 15th November, 1956 adopted by the
Hague conference on the Private International Law.

(5) The United Nations Declaration on Social and Legal Principles relat-
ing to the Protection and Welfare of Children, with special reference
to foster placement and adoption nationally and internationally
adopted by UN General Assembly on 3rd December, 1986.

(6) Report of the Special Commission of the Hague Conference on the
Private International Law Resolution 14 of 1988.

(7) The UN Convention of the Rights of the Child of November 20. 1989.

(8) Preliminary Draft Convention on International Co-operation and Pro-
tection of Children in respect of inter-country adoption drawn up by
the Special Commission , of the Hague conference on the Private
International Law, February. 1992.

(9) Private International Law Convention on Protection _of Children and
Co-operation in respect of intencourrtry adoption. Final Act. at the
Hague Conference. 29th May, 1993.

4.4. These instruments, inter alia, re late th ' t - t '
therefore are directly relevant for the purpogse of igpgrlfoulltrﬁ 'tii(ti>(t)pnue(<':gssI;1ym?
to discuss each of the aforesaid International Instruments in detail The salient
features as deduced from the aforesaid Instruments are brieﬂy summarised as
under:

(a) The child shall be entitled from his birth to a name and nationality.
(b) The best interest of the child shall be the paramount consideration.

(d) Society and the public authorities shall have the duty to extend parti-
cular care to children without a family.

(e) The child shall be protected against all forms of neglect. cruelty and
exploitation. He shall not be the subject of traffic, in any form.

(f) The child shall be protected from practices which may foster racial,
religious and any other form of discrimination.

(g) The primary aim of adoption is to provide the child with a perma-
nent family and appropriate environment.

(h) If a child cannot be placed in an adoptive family in his own country.
inter-country adoption may be considered as an alternative means of
providing the child with a family.

(1) Persons responsible for foster adoption should have professional

training.

(j) lnter-country adoption should be made through competent authority
or agency with adequate safeguards and no improper ﬁnancial gain
should be involved and legal and social interests of the child should
be secured.

(It) It must be ensured that the child is legally free for adoption, can
migrate -to join the prospective adoptive parents and obtain their
nationality.

(l) Governments should establish policy, legislation and effective super-
vision for the protection of children involved in inter-country adop-
tion" and further that inter-country adoption should wherever possible.
only be undertaken where such measures have been established in the

state concerned.

(in) The consent of biological parents should be free and without duress
and preferences to their wishes for the religious upbringing of the
child should be given.

(n) The child study report. a family study report and such other investi-
gation should be given due importance.

(o) Reimbursement of cost incurred on a child be made.
(p) Protiteering and tratﬁcking in children shall be prevented

if-,_ 7313 Convggtiogj on me "ﬁghts of the child adopted in 1989 is_ an
important convention for In: purpnsa' of this report. we would therefore consider
the same in detail.

Article 21 is the pivotal provision which contains the principles governing
inter-country adoption, it runs as under:

'Amy , rt' 111 t nise and/or permit the system of
adoptilgnzghalﬁmetilsugg lliﬁit thle hfaﬂfginmrests of the child shall be the

paramount consideration and the State Shal1---

' f hild ' thoiised only by competent
la' °a'3.l'i'.'§a3'e'§ 3'§o ailiiléfﬁnlnﬁ, ?n°.aeeo§§.§3e with apP1i¢8b1_€ law and
procedures and on the basis of all pétinent and reliable information

that the adoption is permissible in' View of the child's status con-
cerning parents, relatives and legal guardians and that, if required.
the persons concerned have given their informed consent to the
adoption on the basis of such counselling as may be necessary;

(b). recognise may inter-country adoption may be considered as an alter-

native means of child's care, if the child cannot be placed in faster
or an adoptive family or cannot in any suitable manner he cared
for in the chi1'd's cotmtry of origin.'

(c) ensure that the child concerned_by inter-country adoption enjoys safe-
guards and standards equivalent to those existing in the case of
national adoption;

((1) take all appropriate measures to ensure that. in inter-country adop-
tion, the placement does not result in improper ﬁnancial gain for
those involved in it;

(e) promote, where appropriate, the objectives of the present Article by
concluding bilateral or multilateral arrangements or agreements and
endeavour within this frame work, to ensure that the placement of
the child in another country is carried out by competent authorities
or organs."

This convention has recognised inter-country adoption as an alternative means
of child's care when he cannot be adopted in the country of his origin and it
emphasises that Objectives of inter-country adoption are to be promoted where
appropriate, by bilateral or multilateral agreemems.'

4.6. The Hague Conference on Private International Law had adopted
convention on 15th November 1965 on jurisdiction, applicable law and recog-
nition of decrees relating to adoptions. However, the report of the Special
Commission of the Hague Conference on Private International Law of Janu-
ary I988 discussed two possible strategies open to the Conference, either a
limited instrument to be elaborated within the Conference only, or an instru-
ment in the elaboration of which -non-member countries having a direct interest
in the matter would also be invited and then expressed that----

"All participants agreed that international adoption was posing at pre-
sent very serious problems, of a kind or degree different from those
existing when the Hague Convention of 15 November 1965 was drawn
up." .

It is this seriousness of. problem of inter-country adoption that ﬁnally led the

Special Commission to decide in favour of retaining the topic-

"llnter-country adoption on the condition that non-member states con-
cerned express ................ .. a willingness to participate in the work."

This decision was taken in spite of doubts expressed as to whether the Hague
Conference on Private lntemational Law was the appropriate forum to deal
with the matter. The Hague Conference since then has been engaged in coor-
dinatinginter-Govemmental and non-Govemmental organisations in international
work on inter-country adoption.

4.7.' The draft report of February 1992 was considered by the Hague
Conference on Private International Law in its Seventeenth -Session and adopted
as F'mal"Act on 29th.May. 1993. It may be mentioned that India is a sig-
natory to the Final' Act as a non-member country of the Hague Conference.

The, Preamble of the Final Act takes into account the principles set forth
in the UN Conventions on the Rights of the Child of 20th November 1989 and
the UN Declaration on Social and Legal Principles relating to the protection and
Welfare of children, with s 'at. reference to Foster Placement and Adoption
Nationally and Internationally?' Secondly, it -has recognised that inter-country
adoption' offers the' advantage of permanent family to a child who cannot in
any suitable manner he cared for in his ccmtry of origin. Thirdly. it expresses

concern about the necessitg to take measures to ensure that inter--country adop-
tions are made in the best interests of the child and with respect of
the child and with respect for his fundamental rights and to prevent the
abduction, the sale of or tralﬁc in children. It has sought, to estab-
lish a system of cooperation amongst contracting States to ensure that
the -safeguards provided therein are respected and inter-country adoptions
are made in accordance with the Convention.

4.3. Article 4 of the Final Act lays down the speciﬁc mandatory safe-
guards as under---

(1) The child is to-'be adoptable;

(2)_Placement of the child within the state of origin have to be given
due consideration;

(3) An inter-country adoption is in the best interest of the child;

(4) The persons, institutions and authorities whose consent is necessary
for adoption have been duly counselled and duly informed of the
eﬁects of their consent and of the adoption;

(5) Their consent is given free and unconditional in the required form
and in writing;

(6) Their consent have not been induced by payment or compensation;
(7) Their consent is irrecovablc;

(8) The consent of mother, where required, has been given only after
the birth of the child;

(9) The consents have been given in full knowledge of the eﬁocté of the
adoption in the receiving state.

4.9. Article 4 provides 'some optional safeguards depe tug upon
age and degree of maturity of the child. These optional sa eguards are as
under---

(1) The child is counselled and duly informed of the elfeltts of the adop-
tion;

(2) The child's consent, if required, is obtained;
(3) Consideration is given to the child's wishes and opinions.

(4) The child's consent, if required, has been given freely and uncon-
ditionally in the required legal form and in writing;

(5) The child's consent is not induced by payment or compensation of
any kind.

With regard to adoptive parents, convention has laid down that the competent
authorities of the receiving state must determine that---

(1) the prospective adoptive parents are eligible and suited to adopt,
and

(2) the child is or will be authorised to enter and reside permanently
in the receiving state.

4.10. As regards the transfer of the child to the receiving state. it is
declared that the child would be transferred out only if thecompetent authori-
ties of both states have veriﬁed that no bar exists to the adoption under the
laws of their states and have agreed that the child should be entrusted to the
prospective adoptive parents.

4.11. It has also provided for Central Authorities and accredited bodies
to discharge duties and to take appropriate rneasureste provide information, su-
tistics and standard forms and eliminate a obstacles for inter-connny adop-
tion. The Central Authority can grant acc ' tie; to; voluntary body which
are professionally competent to undertake " tive and socitl

entrusted to them. An accredited body must pursue_only non-proﬁt objectives
and staﬁed by persons specially qualiﬁed by their ethical standards and by train-

ing or gexperience to work in the ﬁeld of inter-country adoption and will be sub:

ject to supervision by competent authority of state as to their composition, ope-
ration and ﬁnancial situation.

4 '$.12. Concerning procedure, it lays down that person wishing to adopt
a child should apply to the Central Authority in the state of his habitual resi~
deuce. = The Central Authority on satisfaction that the applicant is eligible and
suited to..adopt shall prepare a Home Study Report which shall also include
the 5:hai_'acteristics of the child for whom they would be ﬁt to adopt. The report
pretplitred. shall then be transferred to the Central Authority of the state of origin
of e child.

, ,4.l3. The Central Authority of the State of origin if satisﬁed that-the
child. is adoptable then it shall prepare a Child Study Report and obtain con-
sen'to'f the persons, institutional and authorities whose consent is necessary' and
determine whether the envisaged placement is in the best interest of the child.
The report prepared by, the Central Authority of the State of origin shall then
be transmitted 'to the Central Authority of the state of the applicant.

. . The functions of a Central Authority for the aforesaid purposes may be
performedby public authorities or bodies to the extent permitted by the law

of 'its' state.

4.14. Other relevant provisions contained in the Final Act have laid

down that the Central Authorities of both states shall take necessary steps to 'ob-1

ta.in permission for the child to_ leave the state of origin and to enter and re-
side -permanently in the. receiving state and transfer takes place in secure cir-
cumstances and they shall keep each otherrinformed about the adoption process
and progress of the placement if a probationary period is required.

, 4.15. A provision for recognition of adoption made and certiﬁed" by the
competent authority of the sta:e' of adoption by the state of origin permits the
refusal of , recognition if adoption is manifestly contrary to its public policy and
to the best' interest of the child. It has also dealt with costs and expenses.

4.16. It -is. emphasised that improper ﬁnancial and other gain from an
activity related to an inter-country adoption shall not be desired by any per-
son _and only direct and indirect costs and expenses, including reasonable pro-
fessional fees of persons interested in the adoption, may be charged and paid.
'It also pnohibits directors, administrators and employees of bodies involved
in;-adoption from receiving unreasonably high remuneration in relation to aer-
vices";-rendered.

4.17 International conventions do not operate as law unless the legisla-
ture enacts law incorporating the principles laid down therein. Since India is
a signatory to the ﬁnal -Act, it is under an international obligation to enact law
with respect _to inter-country adoption to give eﬁect to the international con-
ventions. Apart from the principles laid down by the international conventions,
our courts have also laid down certain guidelines regulating inter-country adop-
tion. Any legislative exercise should consider both these set of principles.

FO0'I'NOT[tS---CHAP'l'ER 4

1. The New Encyclopaedia Britannica: Volumel Micropa/6/dia, Ready reference: l987
.'1-A-ak Bayes; p. 105.

. ' 'E.mt>h.'<.1$is. supplied
+3. Emphasis'-supplied

4. General Assembly Resolution 41/IE5 of 3rd Der: mber 19%.
3-1 M or Lal/ND/95

CHAPTER 5

JUDICIAL GUIDELINES ON INTER-COUNTRY ADOPTIONI

5.1. The Supreme Court on a letter addressed to it in public interest
took cognisance of malpractices indulged in by social organisations and volun-
tary agencies engaged in the work of offering Indian children in adoption to
foreign parents. The letter sought to restrain Indian based private agencies
"from carrying out further activity of routing children for adoption abroad" and
it also sought direction to the Government of India, the Indian Council of
Child Welfare and the Indian Council of Social Welfare to carry out their ob-
ligations in the matter of adoption of Indian children by foreign parents.

The landmark judgment which laid down guidelines was followed by
other eight orders issued from time to time either in clariﬁcation, substitution or
for giving eﬁect to the earlier ones on cenain points involving inter-country
adoption.'

5.2. The Supreme Court has, while laying down the normative and pro-
cedural safeguards on inter-country adoptions of Indian children relied upon
Articles 15, 24 and 39 of the Constitution and sections 7 to 9 and 11 of the
Guardians and Wards Act. 1890 and the International Conventions. The judi-
cial" creativity of the Court ﬁlled in the gap by the guidelines, where there were
none before.

5.3. Earlier attempt made by the Gujarat High Court'-' for laying down
guidelines was not comprehensive. However, the decision had resolved the
question of adoption of Indian children by foreign parents with reference to
the Guardians and Wards Act. 1890. and excluded application of the Hindu
Adoptions and Maintenance Act, 1956.

5.4. Incidentally it may be mentioned that the procedure to be followed
by the court in disposing of applications for adoption of Indian children by
foreigners was laid down by the High Court of Bombay' and the High Court
of Delhi' under rules and instructions and by the High Court of Gujarat' by
certain observations made for the same purpose."

5.5. Before we proceed to summaris: normative and procedural safe-
guards, it must be mentioned that the Supreme Court in its judgment has em-
phasised at the very outset that a family environment is the best for a 'child
and -the adoptive parents would be the next best substitute for the biological
parents. But when a child is to be given in adoption. then, every effort must
be made first to find adoptive parents for it within the country and only after
such eﬂorts have failed. it may become necessary, to give the child in adop-
tion to a foreigner rather than allow the child to grow up in an orphanage.

5.6. It is in the context of this care and concern shown by the Supreme
Court to the abandoned children, we will proceed to summarise brieﬂy the
normative safeguards ﬁrs? and the procedural safeguards afterwards.

The normative safeguards can be classiﬁed as under:

(1) when a child is adoptable;

(2) when children are living with their biological parents;

(3) when children are destitules or abandoned;

(4) when a foreigner desires to adopt an Indian child; and

(5) the role of the Central Authorities and rccognised organisations in
process of inter-country adoption.

In inter-country adoptions two countries are involved. One, the state
of origin or sending state and. two, the receiving state. Therefore, there are
two Central Authorities of two states which are necessary contracting parties
for inter-country adoptions. These Central Authorities grant or require to grant

reco nition to voluntary organisations or agencies on certain stipulations and
con itions on the basis of the work experience, professional skills and inte-
grity in the ﬁeld of adoption of children by foreigners. Of course, even the
diplomatic missions of both countries are aisoinvolved in the process. These
are some important aspects which are taken into consideration in classifying
the normative safe-vuards in inter--cour.iry adoptions.

Now we proceed to summarise the normative safeguards as under:
When a child '5 adoptable

. 5.7. The first and foremost Condition for giving a child in inter-country
adoption is that the child must be free and legally available for the adoption.

Firstly. if the consent of biological parents is given, it must be without
duress or inducement and in the best interests of the child or when the pa--
rents have relinquished the child for adoption and there is a document of
surrender, duly attested by the necessary witnesses. the child must obviously
be taken to be free for adoption.

Secondly, where a child is an orphan or destitute or abandoned child
and is living in a social or child welfare agency and it has not been possible
for the concerned agency to trace its parents or where the child is committed
by a juvenile court to an institution. centre or home for committed children
and is declared to be a destitute by juvenile court, such a child must be
regarded as free and legally available for adoption.

The child living with biological parents

5.8. Where a child is living with his biological parents, they would
be the best persons to decide whether to give their child in adoption to foreign
parents.

When the parents decide to'give their child in inter-country adoption.
there should be following safeguards?

(l) The biological parents should not be induced or encouraged or
even permitted to take a decision in regard to giving of a child in
adoption before the birth of the child or within a period of three
months from the date of birth of the child.

(2) Proper counselling should be given to the biological parents before
a decision about relinquishing the child for adoption is taken.

(3) The counselling should be done by social or child welfare agency
to which the child is being surrendered and relinquished.

(4) Before a decision is taken by the biological parents, they sbouldibe
helped _to understand all implications of adoption including the
possibility of adoption by foreign parents.

(5) The biological parents should be speciﬁcally told that in case of
the child is adopted. it would not be possible for them to have
any further contact with the child.

(6) The biological parents should not be subjected to any duress . in
making a decision about relinquishment of the child.

(7) Even after the biological parents have taken a decision to relin-
quish the child for giving in adoption a further period of about
three months should be allowed to them to reconsider their

(8) But once the decision is taken and not reconsidered within a fur-
ther period of three months, it must be regarded irrevocable.

(9) In order to eliminate any possibility of mischief and to make tale
that the child has in fact been surrendered by its biological parents,
it is necessary that the social or child welfare agency to which ﬁe
child is being surrendered by the biological parents, should take
from the parents. a document of surrender duly signed
by the biolostcnl; PIt¢1Is~_and.auared by at least

person

-70:
>9

(10) Such» surrender document should not only contain the names of the.
biological parents and' their addresses but also information in re-'

gard to the birth of the child and its background, health and deve-
lopment. '

(11) The procedure for giving the child in adoptionto a foreigner can
then be initiated without, any further reference to the biological pa-
rents by ﬁlling an application for appointment of the foreigner as
guardian of the child under the Guardians and Wards Act, 1890.

(12) Thereafter, there would be no necessity to consult the biological pa-
' rents again as to whether they wish to give the child' in adoption
or they want to take it back.

(13) If the boilogical parents have stated a preference for the religious
upbringing of the child, their wish should as far as possible" .be
respected and given -- effect accordingly.

(14) However, the biological parents should be informed that the child
may be given in adoption even to a foreigner who professes a religion
different from that of the biological parents as ultimately the best
interest of the child alone should be the sole guiding factor and
paramount consideration for giving to the child in adoption to the
foreigner.

Deetitnte or abandoned child

5.9. Where the child is an orphan, destitute or abandoned and [parents
are not known, the social or child welfare agency' in whose care the' child
_has come, must try to trace' the biological parents of the child:

(a) If the biological parents can be traced and if it is found that they
do not want to take back the child, then the same pnocedureas
outlined for the children living with their biological parents - dis-
cussed earlier should be as far as possible be followed.

,(b)' But, if forany reason, the biological parents cannot be traced, then
there "can be no question. of taking their consent or consulting them.

(c) Then, in a class of cases under (b) as above, the consent of the
child or social welfare agency involved in the ﬁeld of inter-country
adoption is 'primarily necessary. 'This institutional consent is to be
ultimately guided by the sole factor and paramount consideration of
the, best interest of the child.

Whenaforeigterdesiestoadoptmlntlandild

5.10. Great care has to be exercised in permitting the child to be given
in adoption to foreign parents. It must be ensured that inter-country adoptions
do not lead to abuse or exploitation of children. The possibility of proﬁteering
and traiﬁcking in children must be eliminated.

An application from a foreigners with a home study report' must, there-
fore, be sponsored by a Social Welfare Agenc recognised by the Government
of the country in which the foreigner is domi and should be accompanied
by such certiﬁcates, declarations and documents?' as are necessary."

It must be ensured that there is no impedhnent in the way of child
entering the country of the prospective adoptive parents. The travel documents
for--the child are obtained at the appropriate time, the law of the country of
the prospective adoptive parents must permit legal adoption of the child and the
child should acquire the same legal status and rights of inheritance as a natural

-born child and he should become a citizen in the country of adoption.

'rt..noieorn.ecenua1Amno;ayme-anus:-unseat-saunas

5.11. Every effort must be made by the _ nised child. welfare agency
to find placement for the child in adoption'-in I _' ian family. It is only if
no Indian family comes forward to take a child in adoption within /a maximum

period" of two months that the child may be regarded as available for inter-
country adoption. However, if the child is handicapped or is in a_ bad state
of health 'needing urgent medical attention. the recognised social welfare
agency need not wait for a period of two months and it can and must_take
immediate steps for the purpose of giving such child in inter-country adoption.

All private adoptions conducted by unauthorised individuals or agencies
should be stopped." Any application for taking a child in adoption should
be processed only through a child welfare. agency recognised by the Govem-
ment of India in order to ensure":

(a) Elimination of the possibility of proﬁteering and traﬂicking in child-
ren.

lb) Proper and satisfactory home study report on which court can rely
and decide whether a foreigner would be suitable as a parent for the
child and'would be able tohandle trans-racial, trans-cultural and
trans-national problems likely to arise from such adoption.

(c) Authority or Agency in the country of the foreigner who could be
made responsible for supervising the progress of the child and ensur-
ing that the child is adopted at the earliest in accordance with the
law grow up in the atmosphere of warmth and affection with moral
and material security assured to it.

On receiving an application from a foreigner for adoption of an Indian
child, the recognised agency must send the photograph and child study report
of a suitable child who ﬁt into the environment and community of the prospec-
tive adopter for the purpose of obtaining approval to the adoption of such
child from the foreigner wishing to adopt Indian child. The practice of accept-
inga general approval of the foreigner to adopt any child should not be allowed.

A child study report" containing legal and social data in regard to the
child is prepared by the recognised social welfare agency.

5.12. The procedural safequards as laid down by the Court may be
brieﬂy summarised as under:

(1) An adoption application proceedings should be completed" by the
Court expeditiously and as far as possible within a period of two
months gram the date of ﬁling of the application for the guardianship
of the c ild.

(2) The proceedings on the application of guardianship should be held
in camera" and they should be regarded as conﬁdential and as soon
as an order is made on the application, the entire proceedings in-
cluding the paper and documents should be sealed.

(3) When an order appointing guardian of a child is made by the Court,
the immediate intimation" of the same shall be given to the Ministry
of Welfare, Government of India and to the Ministry of Social
Welfare of the Government of the State in which the Court is situated.

(4) It is desirable" that a child is given in inter-country adoption as far as
possible before it completes the age of 3 years. It does not mean
that children above the age of three years should not be given in
inter-country adoption. Even children above the age of 7 years
may be given in inter-country adoption but their wishes may be
ascertained if they are in a position to indicate any preference.

(5) The child not having any permanent place of residence would be
ordinarily resident in the place where it is in the care and custody
of social welfare agency or individual. In such event, the Court
within which jurisdiction the childmis inarily residing will exercise
its jurisdiction on an application of
ed social welfare agency for the E I

i__r wishingto adopt the child."

, ianship made by the it '

(6) In order to eliminate trading in children in the name of inter-country
adoptions, the child welfare agency may legitimately receive from
prospective adoptive parents maintenance expenses," from the date
of selection of the child by the foreigner until the date the child leaves
for getting to its new home as also medical expenses including hospi-
talisation charges, if any, actually incurred by such social welfare
agency for the child.

(7) A foreigner is not prevented from making voluntary donation" .to
any social or child weltare agency but no such donation from him
shall be received until after the child has reached his country.

Central Adoption Resource Agency

5.13. The Supreme Court directed the Government of India to set up a
Central Adoption Resource Agency" (hereinafter to be referred to as 'CARA')
with regional branches at a few centres which are active in inter-country adop-
tions. Such CARA is expected to act as a clearing house of information in
regard to children available for inter-country adoption and all applications by
foreigners for taking Indian children in adoption can then be forwarded by the
social or child welfare agency in the foreign couptry to CARA and the latter can
in its turn forward them to one or the other of the recognised social or child
welfare agencies in the country.

5.14 The court laid down conditions" for recognition of the child welfare
agencies are as under:

(a) An agency should have proper staff with professional social work
experience.

(b) It is only an organisation which is engaged in the work of child care
and welfare which should be regarded eligible for recognition, since
the inter-country adoption must be looked upon not as an indepen-
dent activity by itself, but as part of child welfare programme so
that it may not tend to degenerate into trading.

(d) It. should not charge from the foreigner, wishing to adopt a child,
any amount in excess of that actually incurred by way of legal or
other expenses including such reasonable remuneration or honorarium
for the work done and trouble taken in processing, ﬁling and pursu-
ing the application as may be fixed by the Court.

5.15. The duties" of the recognised agency would be as under:

(a) It must maintain a register o-f the names and particulars of all children
to be given in inter-country adoption.

(b) It must prepare a child study report through, a professional social
worker so as to enable the foreigner to come to a decision on adop-
tion of the child

. in coming to a decision whether it will be
,.=u.;.-2 to be given in adoption to the foreigner.

{ct it nnast also 2\v*}~
for the welfar: 0

5.1a The government. of India with the assistance of the Government

of State was directed to 'prepare a list" of recognised social or child welfare
agencies with their names. addresses and other particulars and send such list
to the appropriate department of the Government of such foreign country where
Indian children are ordinarily taken in adoption so that the social or child wel-
fare agencies licensed or recognised by the Government of such fO'reign country
for inter-country adoptions, would know which social or child welfare agency
in India they should approach for processing an a plication of its national for
' an Indian child in adoption. Such list shall, so sent to the Government

of lg'; to each High Court with a requestto. it,to the district courts

within its jurisdiction so that the HighVCourts and the district courts in the
country would know which are the recognised child welfare agencies operating
in India in the area of inter-country adoption.

-5.17. The Central Government was directed to prepare a list" of social
or child welfare agencies recognised for inter--country adoption by the Govem-
ment of each foreign country where children from India are taken in adoption.
and supply copies thereof to the various High Courts and to the recognised
child welfare agencies operating in India in the area of inter-country adoption.

5.18. The Central Government is further required to send the aforesaid
list'-'7 to the Indian Embassy or High Commission in the country of the prospec-
tive adoptive parents from time to time with a request to keep watch over the
welfare and progress of such children in order to safeguard against any possible
maltreatment, exploitation or use for ulterior purposes and to immediately
report any instance of negligence or exploitation to the Government of India
for suitable action.

5.19. The guidelines laid down by the Supreme Court in its judgment
and several orders are comprehensive. The Law Commission is of the opinion
that it is desirable to bear in mind these judicial guidelines in Codifying law as
these are directly relevant for the purpose of the IIlI€I'i'0uI'ItI'y adoption,

FOOTNOTESWCHAPTIZR 5

I. The guidelines are laid down in Laxmi Kant Pandey v,/s UOI (1984) 2 SCR 795 and were
elucidated in Laxmi Kant Pandey vls UOI, AIR I987 SC 232 and Laxmi Kant Pandey
V/S UOI JT I991 (3) SC 552. Also in re: Jay Kevin Salerno AIR I988, Bombay I39; SC
Order: 6th August, 1993 etc.

In re: R.C. Mehm, AIR I982 Guj. [93

The High Court of Bomrny has issued a Notiﬁcation on 10th May I972 incorporating
lliguslg 2471-13 in Chapter xx of the Rules of the High Court of Bombay (Original Side).
The High Court of Delhi has also issued instructions (I984) 2 SCR, 795

In re: R.C. Mehta, AIR I982 Gui. 193

L. K. Ptmdey v s (/01 (I984) 2 SCR pp. 826-828.

Ibid «pp. 835, 836, 848

Supra p. 838

Appendix C

. Appendix D

L.K. Prmdey V/S UOI ( 1984) 2 SCR pp. 833-834

Is)

9.:

......

.'°)°9°.*'?'.V':'"

Supra p. 837 . Supra p. 832 . Appendix E Supra p. 845-847 . Supra p. 847 .. Supra p. 847 Supra p. 845 Miscellaneous Petition No. 178 of I982 quoted in I..K. Pandey (I984) 2 SCR, p. 795, 843 . Supra p. 841 . Supra p. 842 Supra pp. 839-840 . Supra pp. 837-838 Supra p. 838

25. Supra p. 839

26. Supra p_. 839

27. Supra p. 848 Ewhﬂeegsaaxes CHAPTER 6 THE ROLE OF THE CHILD WELFARE AGENCIES 6.1. Only those child _welfare agencies as are recognised by the Govern- ment can undertake the work of inter-country adoption, for the purpose of which no speciﬁc statutory law is in force in our country. ' Therefore. the Supreme Court in its landmark judgment' on the subject had to rely upon the Guardians and Wards Act, 1890* and the International conventions and Decla- ufations' for laying down the necessary guidelines for regulating inter-country aadoption, reference to which has already been made in the earlier Chapters.

Pursuant to the court judgment, the Central Government issued guide- lines on- adoption of Indian children by foreigners for the information and guidance of general public, voluntary agencies as well as all other concerned with the subject matter.' 6.2. The guidelines issued by the Central Government are binding on the child Welfare agencies recognised and working for inter-country ado tion. The role of such voluntary agencies is determined, regulated and supervised under the guidelines issued. which are based on the Supreme Court Judgment.

These guidelines also deal with the mic of foreign agencies engaged in adoption of Indian children. Foreign agencies are required to apply to India's adoption of Indian children. Foreign agencies are required to apply to India's are protected.

6.3; In order to elicite information, the Law Commission addressed communication5 to the 4| child welfare agencies -which are recognised' by CARA for the purpose of placing children in inter-cotmtry adoption. In all 31 agen; .

ciesl responded to the communication. The responses received by the Law Commission disclosed the practical working experiences gained and the actual role played by the child welfare agencies in inter-country adoption under the guidelines issued by the Government of India.

6.4. It is to be noted _ t the outset that all recognised child welfare agen- cies working in the ﬁeld fo 'n-ter-country adoption have shown willingness and ability to followthe guidelines laid down by the Supreme Court. ~ Institutional backgrounds and value commitments of the responding agencies have been reflected in their respective responses. 'These agencies are running children':

homes for crisis-affected babies who are brought to them by the police or aban- doned by unwed mothers. They believe that society must value its children and solve the problem of their destitution.

6.5. Various child welfare agencies working in the ﬁeld of inter-country adootion had in their responses highlighted the working of the scheme relating to the adoption of Indian children by foreign aencies. Those agencies have faced a number of problems and they have made suggestions for the removal-

of those problems and also for facilitating the smooth functioning of the entire scheme to provide inter-country adoption. We have gone through the responses and the various suggestions made therein. The Commission expresses Its deep anpreciation of the commendable work being done by the voluntary orga- nisations in this ﬁeld. The details of the responses are contained in Appendix I. On a close scrutiny and analysis of the responses. we ﬁnd that the ex- perience gained by agencies shows a remarkable phenomenon that contrary to general belief Indian children adonted by foreign parents are looked after we]! and they have full opportunities for their development. In our opinion,- this should be an eye opener to those who express apprehension or spread disinfor-

mation aeainst adoption of Indian children by foreigners. All this has been possible due to the implementation of the guidelines laid down by the Supreme Court and also on account of the special interest taken by the Welfare'Ministry of the Central Government.

2] The valuable opinions and suggestions as contained in the responses have been taken into consideration in formulating 0'31: recommendat1_ons and also in drafting the proposed legislation. We do not, itherefore. consider it necessary to express our view in detail on the responses. Some of the suggestions are not practicable and as such we have not recommended for their implementation.

6.6. The problems faced and suggestions niade. by the Child _We1fare agencies, being relevant for the purpose of this report. are szimmansed as under:

..I. Law on adoption Sil'Ju'i(i be "child centred" and look after the interests of children on a priority basis.

, 2. There is no statutory l.:;».t' providing for adoption of children in India except the personallaw of His:d;.s and there is a need to have a secular law which should be enabling ar.:l permissive in order to encourage adoption so that the home to the needy child is provided.

3. Prior to placing a child with a foreign family, every ellort should be made to locate an Indian family for the child. Should a family for a particu-

lar child -be unavailable with the placement agency. then assistance through the Voliintary Coordinating Agenzy {V.C.A.} within each state should be sought arid utilised. In this way suitable Indian families from other adoption agencies can be located. It is through strengthening the local VCAs that the task of inter-agency coordination czm be accomplished.

The V.C.A. should comprise personnel not involved in the placement of children for foreign adobtions. Only_ those children who are not placeable in our own country should be placed in foreign adoption. Speciﬁc time sche- dule should be prescribed by l;:w for the placement of child within the country failingrwhich the child should be considered free for foreign adoption.

4. A wife or a husband who has been deserted by other s use for more than one year should be allowed to relinquish, if necessary, t. e child below 5 years, to the orphanages legally. This Will help to prevent child abuse. The spouse,' having custody of a child, should be considered a sole guardian of such child for surrendering it to the orphanage.

. 5. Once an agency applies to CARA.for clearance certiﬁcate for the proposed inter-country adoption of it child andvno reply is received within 15 days, the permission should be deemed to have been given in the interest of the child to provide him love and warmth of a family life at the earliest.

The handicapped children should be exempted from requirement of clearance from CARA for placement abroad. as such children need special care, attention a.-m:l treatrnent including sur cry; and there are families from abroad who may be willing to take such c ildren but due to the time factor involved in clearing applications ﬁnally do not wish to pursue the matter.

It is, therefore. suggested that CARA should only be a monitoring body and keep a check on the various agencies through the quarterly reports that 'are being regularly sent to it and by holding inspections through its organs in the states. ' e

6. The first priority is to locate Indian family, in India. for adoption failing which the next best. is an Indian family abroad and only thereafter consi-

deration in the last should be given to the foreign families.

For placing children with Indian families abroad, it is not compulsory that their applications be routed through foreign agencies that are recognised by the Govemment of India. The NRI applications shguld be routed through Indian agencies recognised by Government of India to maintain a watch through follow up reports. '

7. Adoptive parents must enioy the mute facility of child care leave at par paid maternity leave. This is e'snmtialtto= help the child's emotional adjustment and physical development. ' . .

4_1 M ofL&.r/-rsrnlos 22

8. Anadopted child must have the right to birth certiﬁcate with the name of the adoptive parent as his parents. It is because it becomes degrading for a child to function with an aﬂidavit which gives the circumstances of its birth and abandonment. \ It is informed by a social welfare agency 'operating in Goa, where adopted child is regarded illegitimate from older times. There has been a practice of bringing up illegitimate children to serve as servants of the house and were referred to as adopted loosely.

It is suggested that this can be mitigated to a certain extent if the adop-

tive parents names are inserted as parents in the birth certiﬁcate of the child adopted.

9. In Sweden there is no concept of il'egitimate child and, therefore, the child is not looked down upon 'by its society due to his birth status. It is the duty of the society as well as of the state to save the child from the stigma' of illegitimacyfor no fault of his.

In the circumstances, the concept of illegitimacy of children should be removed by law.

10. It is observed that the Courts delay considerably to settle adoption cases by foreign nationals despite the guidelines of the Supreme Court to dispose them expeditiously. Because of this delay, sometimes foreign adoptive parents become so impatient that they start looking for another child from some other country for adoption.

Though adoption is a low priority area, yet there has been months at a stretch when no judge was available at some places to hear adoption cases thereby causing great anxiety to waiting parents and children. Therefore, guardianship applications should be disposed of by the family courts who understand emotional aspects of a family life.

11. Although the passport to the child proposed to be given in inter- country adoption be issued within a week under the Supreme Court guidelines. the passport authorities ,even then take months together to issue passport. It is suggested that the passport should be issued within two weeks.

12. The limit of the security bond to be furnished by the foreign agency is required to be curtailed to some reasonable limit from rupees ﬁve laks as laid down by the guidelines now.

13. The licence given for agencies doing inter-country adoption should be for three years instead of one year at present. This would be helpful in a continuous process of placement of Indian children in foreign adoption.

14. That guidelines with respect to increasing the quota in in-country adoption should be laid down- only after bringing a uniform law of adoption for all communities in India.

15. The Indian Child Welfare agencies should be given opportunities to make on the spot study of the adopted children and bring the ﬁrsthand information to be shared with all interested parties about the life of these children living with their adoptive parents abroad.

16. Although adoption by Indian parents is growing in number. yet the families normally go around selecting babies of their choice. As such, babies who are ill-nourished, very dark in complexion, handicapped, having medical problems or special need do not ﬁnd homes in India. If we cannot ﬁnd the family life for these children in our country. it is suggested, we must not hesitate to select foreign families for them.

17. The children suffer trauma and set back in life due to parental poverty, neglect, abuse and for having too many children to be looked after. A sugges- tion is, therefore, made that family planning should be encouraged by law providing for. a smaller family unit and Ilothdﬁcriminatory social status for the girl child. V 23

18. In Goa children are given in guardianship under the Portuguese Code which applies to all communities in Goa. Though the general civil laws. in force in Goa, do not permit adoption the Hindus adopt childern under the law of Usages and Customs, but only from a close family member, preferably the second issue of the adoptive father's brother. However, considering the present trend of having small families, it was becoming increasingly diﬂicult to ﬁnd a child to adopt as permitted under the usages and customs and, therefore.

many Hindus could not adopt but only take in guardianship as is done by the « other communities in Goa. People in Goa ask "How do you expect us to adopt when there is no law of adoption."

19. 'm India, we must have a uniform and secular adoption law for in- country and inter-country adoptions.

20. The capable parents should be allowed to adopt more than one child at a time even if they are not siblings and may have a living child, male or female, of their own.

21. All children including the adopted children in a family should get equal property share.

6.7. It is noticed that certain Diplomatic Missions in Delhi had ﬂouted inter-country adoption directives. The letter" had alleged, inter alia, that "it is a matter of great concern that unsuspecting foreign nationals are misguided and misled by vested interests of the lawyers, private nursing homes or indi- viduals." It is alleged that adoption application to the hospital by foreign parents having three older children of their own was in response to an advertise- ment in an "In-house" magazine of foreign mission. It is said that the advertise- ment in question was itself questionable.

6.8. The above discussion shows that there is need for Inter-Country Ado tion law. The Child Welfare Agencies have suggested for a uniform and secuﬁtr law on adoption. The Law Commission is however of the view that since the scope of this report is conﬁned to Inter-Country Adoption. it is not possible to express any opinion on this subject.

FOOTNOTES--Cl-IAPTER 6 Laxmi Kant Pandey v/s U01 (1984) 2 SCR, 795.

Supra Supra Resolution of July 1989 Appendix F Appendix G . Appendix H . A letter dated 26th August, 1992 addressed the President of Delhi Council for Child Welfare to the Joint Secretary, Government 0 India, Ministry of Welfare was forwarded to the Law Commission.

°°".°'}":"':"!"f"

CHAPTER 7 RECOMMENDATIONS 7.1. In the earlier chapters of this Report we have discussed various aspects of the problem of inter-country adoption. The position which ﬁhna-lly emerges is that there is a demand for a uniform law regulating adoption in general,_ particularly regulating the demand for adoption of abandoned chﬂdl-en by foreign parents. It is. therefore, necessary to enact appropriate legislation regulating _such adoptions as the existing practice and procedure contained in the Guardians and Wards Act, 1890 are inadequate to regulate the inter-country adoptions. The proposed law should regulate matters relating to adoption of Indian children by foreign parents with a view to eliminating proﬁteering and trafficking in children and preventing abuse and exploitation of children by foreign parents and above all ensuring the welfare of the child proposed to be given in adoption.

7.2. The Commission is of the view that biological parents provide the best family environment for the full growth and development of a child. But such environment is not available to an abandoned child placed in an orphanage. Therefore, adoption of such a child is the best substitute for the biological family. While considering the question of giving a child in adoption, the ﬁrst preference should be given to Indian parents, the second choice should be given to non-resident Indian parents and if none of these are available, the child should be given in adoption to the foreign patents. Such child may or may not be abandoned child.

7.3. The proposed legislation should provide that after an adoption order is passed, the foreigrier should be guardian of the child and he should thereafter be free to take away the child to his country.

7.4. The inter-country adoption law is recommended in order to regulate matters relating to adoption of Indian children by foreign parents with a view to eliminating proﬁteering and tralﬁrking in children and preventing completely abuse and exploitation of children adopted by foreign parents and ensuring the welfare of the child proposed to be given in adoption to foreign parents.

7.5. The proposed law should regulate adoption of a child with the consent of the biological parentsor in the case of an abandoned child with the consent of the child welfare agency recognised for the purpose of inter- country adoption. The consent given should be free from duress or induce- ment and after the proper counselling in the case of the biological parents with regard to the implications of their consent for adoption of their child. When a child has rational understanding. the consent of the child after proper counselling should be obtained.

7.6. It should be ensured that on adoption of the child the authorities will issue a birth certiﬁcate to the child indicating the adoptive parents' as his or her parents.

7.7. A passport to a child should be issued within two weeks to enable him to go out of India to join his proposed adoptive parents.

7.8. The proposed legislation should provide a mechanism to ensure for the welfare of the child in the country of the adoptive parents.

7.9. The proposed law should provide that the progress reports of the child should be submitted by the sponsoring foreign agencies for a period of 5 years or till the child attains the age of 12 years, whichever is later. The reports sent should be quarterly in the ﬁrst two years, six monthly in the next three years and thereafter yearly, if required, tiﬁ the child attains the age of 12 years.

_2:1._ ,.

7,10. The proposed law in our opinion should permit adoption by at foreigner only if the child can be eventually adopted under the corresponding law of his country. In other words if the law of the foreigner's country does not provide for adoption, then he should not be entitled to adopt Indian child, 7.11. A provision in the proposed legislation should be made to ensure that in case the proposed adoption by foreign guardian is disrupted becausc of certain unforeseen circumstances, the child should either be placed with some other s of India or of some other agency designated' by it, or is repatriated back at the last resort. to the placement agency in India.

7.12. The proposed legislation should have a provision that the spon- soring foreign child welfare agency may have its representative in India who may be an Indian citizen, with professional qualiﬁcations and experience in child welfare work. The representative should not act for more than on:

foreign child welfare agency and have the right to open and operate account in any Indian Bank for and on behalf of such foreign child welfare agency with the permission of the Reserve Bank of India.

7.13. When there is a family court, the matter of adoption under the proposed law should be seized and decided by the family court, or when there is no family court, a district court having jurisdiction over the place where a child ordinarily resides shall be the competent court.

7.14. In view of the importance of the matters under the proposed law, it is necessary that the procedlings in the court are disposed of at the early date. It is recommended that the court diould not take ordinarily more than three months in disposing of an application for inter-country adoption and it is desirable that the proceedings are held in camera.

7.15. With the passage of time. there will be heavy demands as to the eflicacy and prcmptness of the role of the Central Adoption Resource Agency (CARA) which 'has been established by the Government of India. The present CARA appears to be a weak organization in terms of its composition, man power and working conditions. There is a need to make CARA an effective organization with its regional branches at appropriate places.

7.16. A provision with regard to fund in order to enable CARA to perform its functions under the proposed law should be made.

7.17. A provision ensuring accountability of CARA to Parliament through annual reports reﬂecting its true and full activities each year should be made in the proposed law.

7.18. The proposed law should prescribe conditions for recognition of forei' and Indian child wellare agencies and also for their derecognition in appropriate' cases.

7.19. In order that inter-country adoptions work smoothly and effecitvely it would be desirable for the Central Government to enter into bilateral treaties with the countries where the Indian children are taken out under the court orders for their eventual adoptions in accordance with the laws of those countries.

7.20. As far the question of legislative competence is concerned, Parlia- ment has power to make law on the subject of inter-country adoption under Articles 246(1) and 253 read with Entry 14 in List 1 Union List in the Seventh Schedule. Article 246(1) confers exclusive power on Parliament to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule. Article 253 gives Parliament exclusive power to make laws for giving effect to international agreements treaties and conventions. Entry 14 of the Union List rear's as under----

"'4 'Entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign coun- tries."

uitable adoptive family with the concurrence of the Govemrnnn' .,.¢.~.--»------__..--__.._....__.-- . ..

As noted earlier, India is a signatory to lntemational conventions and declara- tions governing the inter-country adoption of children. Effect to the conven- tions can be given only by laws enacted by Parliament.

Moreover, under Article 246(2), Parliament has concurrent power to make laws with respect to any of the matters enumerated in List 111 in the Seventh Schedule. Adoption, which can be both in-country and inter-country, is the subject included under Entry 5. Therdere, Parliament has power to make law on inter-country adoption under Article 246(2) read with Entry 5 in the Concurrent list in the Seventh Schedule. Such law when enacted will foster respect for international law and treaty obligations as envisaged under Article 51(0) of the Constitution of India.

7.21. In view of the above discussion the Law Commission recommends that law should be enacted to regulate inter-country adoption and for the purpose of legislative convenience a Draft of the proposed enactment is annexed as Appendix 'A' to the Report.

The Law Commission hopes that the Government will take immediately effective steps to implement the Report and enact the law in order to safeguard the interests of children.

Sd/-

(JUSTICE K. N. SINUH) Chairman Sd/- Sd/-

(PROF. D. N. SANDANSHIV) (Cl-I. PRABHAKARA RAO) Member Member-Secretary Sd/- Sd/-

(P- M. BAKSHI) (M. MARCUS) Member (Part-Time) Member (Part-Time) APPENDIX 'A' The Inter-Country Adopthn Bill 199 am No ............ ....... .. of 199 A Bill to provide for the Inter-Country Adoption and matters connected therewith.

CHAPTER I PRELIMINARY Be it enacted by Parliament in the Forty .... ..Year of the Republic of India. as follows:--

1. Short Title, Extent and ComIlIeIeelnent.----(1) This Act may be called the Inter-Country Adoption Act, 199 .

(2) It extends to the whole of India.

(3) It shall come into force on such date as the Central Government may, by Notiﬁcation in the Official Gazette, appoint.

2. Delinition.~ln this Act, unless the conext otherwise requires-

(a) 'adoption' means inter-country adoption:

(b) 'adoption order' means an order made under section 4:

(c) 'child' means a person who is a citizen of India of either sex, who, on or before the date on which an application for an adoption order in respect of such person is 'made has not completed the age of eighteen years;

(d) 'court' means the family court established under the Family Court Act, 1984 and where no such court has been established a District Court:

Provided that the Govermnent may. by Notiﬁcation in the Otﬁcial Gazette, empower. subject to such conditions and restrictions as my be speciﬁed in the n«.»tifica.tion. any other civil court to exercise the power and discharge the functions and duties of the court in respect of all or any of the matters dealt within this Act and the court so. empowered shall be deemed to be a court for the purposes of this Act in respect of the matters and subject to the conditions and restrictions as may be speciﬁed in the notiﬁcation.

(e) 'foreigner' means (i) a person who is not a citizen. of India: or (ii) who is a citizen of India but not domiciled in India:

(f) 'Government' means Central Government of India:

(3) 'institution' means an institution recognised under Section 23;

(h) 'inter-country adoption' means adoption of a child by a foreigner;

(i) 'notiﬁcation' means a notiﬁcation published in the Oﬁicial Gazette:

(j) 'Prescribed' means prescribed by rules made under this Act.

CHAPTER II ADOPTION ORDER : CONDITIONS AND EFFECT

3. Inter-country Adopﬂon.---No Inter-country adoption shall be made except in accordance with the provisions of this Act and any adoption made in contravention of such provisions shall be void.

27 28

4. Power to make Adoption Order;-_--S':bject to the provisions of this Act. the Court may, upon an application made in the prescribed manner by a foreigner or institution acting on his behalf make an' adoption' order.

5. Conditions for Adoption Order.--If upon an application made by or on behalf of foreigner, the court is satisﬁed that the applicant intends to adopt a child under the law of or within the countryiin' which he is domiciled, and for that purpose desires to remove the child from India either immediately or-after an interval the court may make em adoption order authorising the applicant to remove the child for the purpose aforesaid and giving to the applicant the care and custody of the child pending his adoption as aforesaid:

Provided that no application shall be entertained unless it" is accompanied by a certiﬁcate by the Government to the eﬂicot--1hate--~

(i) the applicant is in its opinion is eligible and suited to adopt the child',

(ii) the welfare and interests 'of the chilidfshali be safe'guar"dcti'under the law of the country of domiciie of the"applicant:

(iii) the applicant has made proper' provision" by way of deposit or bond or otherwise in accordance with the; rules nra.l_c under this Act to enable the child to be repatriated to India. should it become. neces;

sary for any reasons:

(iv) law of the applicant's country provides for adopion and the applicant undertakes to adopt the child in accordance with law of his country;

(v) the child shall be treated aj il be was born to adopters in lawful wedlock for all purposes with cﬁcet from the date of adoption in the foreigners country.

6. Effect of Adoption Order.-C)n the making 'of an adoption order under Section 4 of this Act. the child shall be in the custody of the foreign applicant who will be deemed to be the guardian of the child, from the date of making of the, adoption order by the court till the child eventually adopted according to the law of the applicant's country. ' CHAPTER ill ADOPTION OF INDIAN CHILDREN. BY FOREIGNERS

7. Who nmy Adopt:-tl) Subject to subsection (2) and (3), a foreigner who has completed the age oftwenty-ﬁve and is-of sound mind may adopt a child under this Act.

Explanation :.In the case of adoption of a [child by spouses the require- ment as to age under this Sub-section shall be deemed to have 'need satisﬁed if either of the spouses has completed the age _of twenty-five years.

(2) A foreigner who is married shall not be entitled to adopt »a _child him- self or herself alone but the husband and wife may, jointly adopt a child.

(3) A foreigner who is not married seeking to adopt a child shall be older than the child by at least twenty-one years: ( Provided that the court may dispense with the reqtiirements. of this sub- section, if it is satisfied that there are any special crrcuimstanccr; which render it necessary to do so.

(4) Notwithstanding the provisions of this section. the mother or father of a child not born in lawful wedlock may. either aigmctor jointiy adopt-such child whether or not such mother or father of the child--.1-- I ..

(a) has completed the age of twenty-five yeiiie: or

(b) is older than the child by twenty one years.

8. Adoption of a Female Child.----No adoption order shall be made in respect of a female child if the foreign applicant «is the unmarried male, unless the court is satisﬁed that there are special circumstances to justify the making of an adoption order.

9. Cousents.--(l) No adoption order in respect of a child shall be made except with the consent of the parents of the child or the instituion having care of the child.

(2) Where the child has rational undersgtanding as to the act of adoption, the court shall ensure that the child has been céurnsclled and informed of the eﬁect of adoption and has freely consented to it.

, (.3)AThc manner in which the consent referred to in sub-section (1) and (2) may be obtained shall' be such as may be prescribed.

CHAPTER IV JURISDICTION, POWERS AND PROCEDURE OF THE COURT l{_). The Court having jurisdiction to entertain appIications.--Application for making an adoption order shall be made to the court having jurisdiction over the place where the child to be adopted ordinarily resides on the date of the application.

11. Powers and Procedure of the Courtf--(l) Subject to any rules that may be prescribed in this behalf and principles of natural justice, the courty may follow such procedure as it may think just and fair in hearing each application for adoption order. ' (2) The court may receive as evidence any report, statement, document, information or matter that may in its opinion assist it to deal with the application.

' adj (3) In proceedings underthis section, any report by an Indian Counsellor' Oﬂicer or an Indian diplomatic oﬁicer or a deposition made before an Indian Counsellor Olﬁcer or an Indian diplomatic oﬂicer and authenticated under the signature of that oﬂicer shall be admissible as evidence of the matters stated therein, and it shall not be necessary to prove the signature or oﬂicialcharacter of the person who appears to have signed any such report or deposition.

'(4) The Court shall ordinarily dispose of an application for making an adoption order within a period of three months.

12. Proceedings to be held in Camera.--Proceedings under this Act shall be held in camera if the Court thinks it necessary or if either party so desires.

13. Matters to be Considered in making Adoption Order.---(l) The Court, before making an adoption order shall satisfy itself:

(a) that the person or the institution whose consent is required under this Act, and if such consent has not been dispensed with, has given con-

sent after due counselling, with regard to the nature and effect of the adoption order.

(b) that the inter-country adoption shall be in the best interest of the child.

'(c) that efforts made for adoption of the child in India have been unsuce cessful; ' ' .(d).'that no person has made or offered or agreed to make or give any payment or other [reward in consideration of the adoption except such as the court may. sanction. ' (2) In determining whether adoption order, if made will be for the welfare' ' ,_t115;_ _c_ou1-t shall .have regardgto ,§qcial, ﬁnancial and maritalstatzus and the applicant.'_, ' 6fL' &'.r/N'Di95 ' i 30 (3) Th6 court in making adoption order may impose such conditions asit may think gﬁt, and in particular, it may require the foreigner by bond or other- wise to make for the child such provision as in die opinion of the court is just and proper, for the security of the child as may be prescribed.

(4) An adoption Order made by the Court under Section 4 shall be ﬁnal.

CHAFFERV RESTRICTIONS, PROHIBITIONS, Q*oNIRAvENrir3Ns AND PUNISHMENT

14. Restrictions on Removal of a Child for Adoption Outside India.- (I) Except under the authority of an order under Section 5, it shall not belawful for any person to take or send out of India a child to any place outside India with a view to the adoption of the child by a foreigner.

_ (2) Any person who takes or sends a child out of India to any place outside India in contravention of sub--scctiion (13 or makes or takes part in any arrangements for transferring the care and custody of a child to any person with a View to adoption by a foreigner shall be punishable with imprisonment for a term which may extend to six months, or with ﬁne, or with both.

15. Proliiiiitioo oi certain paymentsr--(l) Subject to the provision of this- section it shall not be lawful for any person or organization to receive any pay- ment from. a foreigner in consideration of----

(a) the adoption of a child; or

(b) the consent given in connection with the adoption of a child; or _

(d) making any arrangements for the adoption of a child.

(2) Sub-section (1) shall not be applicable if the payment to an institution by a foreigner is sanctioned by an adoption order of the court in respect of ex- panses incurred by the institution in connection with the child.

_ 16. Restrictions on advei-l'$ements.~--Except with the leave of the c0urt..it shall not be lawful to publish any advertisement indicating that a foreigner desires to adopt a child or a child is available for adoption.

1?. Punishment:---Any person who contravenes any provision of this Act shall be punishable with imprisonment for a term which may extend to stir months. or with line. or with both.

CHAPTER VI BIRTH CERTIFICATE AND PASSPORT

18. Issue or Birth Certiﬁcate.--Wherein respect of any child an adoption order is made and particulars relating to the birth of the child have been registered before the adoption order under any law, the authority for the time being e_m- powered to give certiﬁed extracts of such particulars shall. upon an application made on behalf of the child and upon being satisﬁed that the adoption order in respect of the child has taken effect. issue or cause to be issued a provisional certi- ﬂcate of such particulars setting out the names of -the adoptive parents in place of the names of the natural parents of the child.

19. Issue of Passport.--t 1} In case the adoption prder is made under Section 4 of the Act, the institution shall be entitled to obtain a passport for the child for whose beneﬁt the order has been made from the passport authority under the Passport Act. 1967. v (2) Subject to Section 5 of the Passport Act, 1951.» on receipt of is sppii-'T cation under ssh-section (1) of this section. the plsspoét authority shall ordinarily' issue the passport within two weeks. ' " ' ' ' 31 C1-rAivm:VlI THE CENTRAL ADOPTION RESOURCE AGENCY: COMPOSITION, POWERS AND FUNCTIONS

20. Setting up of_Central Adoption Iesodcie Agency.-----(l) The Central Government shall constitute a Central Adoption Resource Agency within six from the commencement of this Act.

(2) The Central Adoption Resource Agency shall consist of a Chairman and six members having special knowledge or experience in regard to matters relating to 'child welfare and administration of child welfare institutions;

Provided that not less than one-half of the members shall be women.

(3) The term of oﬂice of the Chairman and Members, meetings, validity of proceedings and other matters relating to the effective functioning of the Central Adoption Resource Agency may be prescribed.

(4) The Central Adoption Resource Agency may have its branches at such places as it may consider necessary.

A 21. Powers and Functions of the Cellhal Adoption Resource Ag¢ncy.='-- (I) The Central Adoption Resource Agency shall act as a clearing house' of infor-' mation of the children available for inter-country adoption and of the foreign adoptive parents.

(2) The Central Adoption Resource Agency may provide information to the central authority set up by the Government of the foreign country concern- ing adoption and such other inforrnation relating to the welfare of the child as may be prescribed.

(3) The Central Adoption Resource Agency shall----

(a) collect, preserve and exchange inforrlation about the child and the adoptive parents to the extent it is necessary for the adoption;

(.b) maintain the list of recognised foreign welfare institutions;

(ci obtain child progress report from the centre authority of the country of the adoptive parents as may be prescribed;

(d) facilitate, follow and expedite adoption proceedings; and .(e) perform such other functions as may be prescribed.

22. Fund of the Central Adopltion Resource Agenicy.---The Central Gov- ernment may, after due appropriation made by Parliament by law, in this behalf, make in» each ﬁnancial year such eontrribut"ron~ «to the Central Adoption Rlesource Agency as it may think necessary to enable the Central Adoption Resource Agency to perform its functions under this Act.

23.. Annual R"epoi-t.--The Central Adoption Resource Agency shall prepare once every year, in such form. and at such time as may be prescribed, anannual. report giving a true and full account of its activities during the previous year; and copies thereof shall be forwarded to the Central Government and the Government shall cause the same to be laid before both Houses of Parliament.

24. Recognition of Institutions for liter-country Adoption Work. The Central Adoption Resource Agency may recognise any institution for the purpose of inter'-country adoption of children.

29.. for Recogniion of Iiuionsa---'Before the reeog_nitib_n to amilstitutibn given the Ceneralv Atdoptiouv!lsource- Agency shalt satisfy itadf (if pursues only non-proﬁt obfeetivd:

as A ~ 6 it * .1;

I ah':

(b) is managed by persons having training or experience in the ﬁeld of mter-country adoption: and

(c) satisfy such other conditions as may be prescribed.

26. De-recognition of Instltntions.--The Central Adoption Resource Agency may, for reasons to be recorded in writing, de-recognise an institution: ' _ V. Provided that no such order shall be made without aifording opportunity' of hearing to the institution. .

Z 1 _ 27_. Appeals against Orders of Central Adoption Resource Agency.--('1) Any mstrtution aggrieved by an order of the Central Adoption Resonrce Agency' de-recognising it may, within such time as may be prescribed prefer an appeal to the Government. ' . - ' -

(2) The decision of the Government on such appeal shall be ﬁnal.

CHAPTER VIII BILATERAL AGREEMENTS

28. Agreement with Foreign Countries.----The Central Government may enter into agreement with the Government of any foreign country to ensure the welfare of Indian Child adopted by foreign parents, with special reference to matters hereinafter stated:

(a) for determination of eligibility and suitability of an applicant of that country for adoption of a child from India;

(b) for completing an early adoption of child under the corresponding law of adoption in force in that country;

ic) for monitoring the welfare of child in that country and for periodical reports; ' - -

(d) for enabling the child to be assimilated in the environmentof that country;

(e) for the prevention of exploitation, discrimination and abuse of child or investigation of cases relating to such act_s.and punitive actions under the law in force in that country; '

(f) for securing equal rights and status to the child as if he was born to the adopters in lawful wedlock for all purposes:

(g) for enabling the child to be adopted by 'alternative eligible and 'suitable parents or repatriated to India, should it become necessary for any reason; and ' ' .

(h) for the recognition of the child agencies working in that countrysfor-' child welfare.

29. Countries with which no agreement Exists.--Where an adoption order is made under this Act and the country «to which the foreign parents belong has not entered into agreement, the Central Government may take appropriate steps to ensure the welfare of the child including the repatriation of the Child. Should it become necessary.

LT CHAPTER IX POWER TO REMOVE DIFFICULTIES AND TO MAKE RUIi.ESM

30. Power to Remove Diﬂiculties.---If any diﬂiculty arises in' giving effect ' ' f th' Act, the Government may,.by order pub1isher1_ rtieg. gmfitlpgavgltgenf r(r)rakeIssuch provisions, not inconsistent with the.iproV1s1<nlt: dd this Act, as appear to it to be necessary or_e?rpedi&r;itqfor uremovingutheﬂditikicultyz Provided that no order shall be passed after two years from the commence- ment of this Act.

- 33

31. Power to Make RuIes.--('1) "Government may, by notiﬁcation in the Official Gazette, make rules foricarryingoutﬂthe purposes of this Act.

(2) In particular and without prejudice,tp the generality of the provisions of sub-section -(1), such rules may provide for----

(a) the manner in which an application for adoption order shall be, made under section 4. :_ t(b) proper provision by way of deposit or bond in order to enable tlieu A' child to be repatriated under proviso (iii) of Section 5.

(c) the manner in which consent; may _be obtained to the adoption of 'a child and other matters relating to sudi consent under sub-section (3) of Section 9.

-(d)tthe procedure which may be followed in the Court in theproceediiigs under sub-section (1) of Section 11;

(e)'-the terms of office and quorum for the meetings of the Central Adop- ' tion Resource Agency and the procedure to be followed by it -under sub-section (3) of Section 20; .

(f) exchange of information under sub-sections (2), 3(c) and (e) of Section 21;

(g) the form and manner in which the annual reports are to be prepared under Section "23;

(h) -the conditions for recognition in respect of an institution under sub- section (d) of Section 25; ' '

(i) the grounds for derecognitionof an inttitution under Section 26;

the form, manner and the; period within which a.n appeal may be preferred to the Government under Section 27; V any other matter, for which provision has to be made or may be » made-by''rules. ' ' ' 2 'I. (3) Everyrule made by the Government, under this Act shall be laid, as soon as may be after' it is made, before 'each House of Parliament, while it is in session.-' -for a" ' total ' period of thirty days which _ may» be comprised in one session or in two or more successive sessions, and If? before the expiry _of the session immediately following the session or the successive sessions aforesaid. both'I-Iouses agree in making any modiﬁcation in the rule or both Houses "agree that rule should 'not be made, the rule shall thereafter have effect only in such modiﬁed former be of an effect, as the case may be; h0Wcve_r,_tl1at any such modiﬁcation of annulment shall be without prejudice to the validity of anything previously done under that _rule. , APPENDIX 'B' Adoption of clnilaen 1!, mo (Clauses 23 and 24)

-#23. llcstrleﬂon on removal or and tar Adoption ou'sssde'toiaia.-- (1) Except under the authority of an order, under section 24, it 'shall not be lawful forany person to take or send' out of India 'child who is a citizen 05 India to any -place outside India with a view to the adoplwi ofﬂie child by person.

;',i(2),Aiiy person who takes or sends a! child out of India toany place out- side: India in contravention of sub--secti0r1 (F) on males to take part, in arrange- ments for transferring the care and custody of a child to any person for that purpose shall,b.e punishable with imgrisonment for a term which may extend to six months 'or with ﬁne, or with bot . '

- L (3) hseny proceeding under this seetionacreport by an Indian consular other or an Indian diplomatic oﬁicer or a made before an Indian con- sular oﬂicer or an Indian diplomatic officer and aﬁlnnticated under the signature of that oﬂicer shall be admissible as evidence of the matters stated therein, and it shall not be necessary to prove the signature or elllelal character of the person who appears to have signed any such report or deposition.

' J

24. Provisional Adoption by Pason domiciled out 0! India.- (l.) it upon an application made by a person who is not domiciled in India. the district court is satisﬁed that the applicant intends to adopt a child under the law of or within the country in which he is domiciled, and for that purpose desires to remove the child from lndia either innnedhlek or alter an interval, the court ma Ergo an order (in this section referred to as a provisional adoption order) an o ' g the-applicant to remove the child for the purposes aforesaid and giving to the applicant the care as aforesaid.' ' c Provided that no application shall belentertained unless it is accompanied by a certiﬁcate by the Central Government to the effect that----

(E) the applicant is'. in its opinion, a ﬁr pesos to adopt the child;

5] - (if) taeweltaec and interests of the child shall be safeguarded underth'e;"

Iavr of the country of domicile of the applham;

V the applicant has made proper ovision by way of deposit or bond ' orotherwise in accordance ' . the rules made under! this Act to

- renahle the child to be repatriated to India. should it become cnecessary;-_-__ _ for any reason.

(2) A provisional adoption order may be made under tltishsection in case where an adoption order could be made in respect of the child under this Act but shall not be made in any other case.

(3) The provisions of this Act relating to an adoption order shall, as far as may be, apply in relation to a provisional adoption order made under this section."

..-:». -...'t-ran' 1 , A,___ ,.

,3-""PP°!\' .'° .°° .\'..i.°'

10. ll.

12.

13.

14.

15.

16.

17.

18.

19.

20.

21.

22.

23.

25.

27. APPENDIX 'C' Home Study Report Source. of referral.

Number of single and joint interviews.

Personality of husband and wife.

-_ Health details ;such asclinical tests, heart condition, 'past illnesses (medical certiﬁcates required sterility certiﬁcate required,'if applicable). Social status and family background.

Nature and adjustment with occupation. Relationship with community.

Description of home.

Accommodation for the child.

Schooling facilities.

Amenities in the home.

Standard of living as it appears in the home. Type of neighbourhood.

Current relationship between husband and wife.

(a) Current relationship between parents and children (if any children)

(b) Development of already adopted children (if any) and their acceptance of the child to be adopted.

Current relationship between the couple and the members of each other's families.

If the wife is working will she be able to give up the job?

If she cannot leave the job, what arrangements will she make to look after the child?

Is adoption considered because of sterility of one of the marital partners? If not, can they eventual have children of their own? If a child is born to them, how will they treat the adopted child?

If the couple already has children how will these children react to an adopted child?

Important social and psychological experiences which"have had a bearing on their desire to adopt a child.

Reasons for wanting to adopt an Indian child. Attitude of grand-parents and relatives towards the adoption.

Attitude of relatives. friends. community and neighbourhood towards adoption of an Indian child.

Anticipated plans for the adopted child.

28.

29.

31.

32.

33.

34. 36 Can the child be adopted according to the adoption law in the adoptive parents country?

Have they obtained the necessary permission to adopt? (Statement of per- mission required.) ' J i ii.

Do the adoptive parents know any one who adopted a child from their own country or another country? who are they? From where did they fail to get a child from that source?

Did the couple apply for a child eny other source? If yes, which source? 7 i ' - f .

What type of child is the couple interested in? (sex, age, and for what reasons.) ' t -

Worker's recommendation concerning 'the family and the type of child which would best ﬁt into this home.

Name and address of the agency conducting the home Study Name of Social worker, qualiﬁcation of social worker.

Name of a agency responsible for post placement, supervision and follow up.

APPENDIX 'D' On tbellocumenta, Cei-tiicatesandDech1-lions mentioned' in the Supreme Court Juhenent (1984) 2 SCR I'. 'I95a}'l'o be annexed with an Application of

(a)

(b)

" . (e)

(f) (8) (11)

(i) G) (1) Inter-Co-try Adoption A Home Study' Report.

'A recent photograph of the family.

A marriage certiﬁcate of theiforeigner.

Ardeclaration concerning health together with a_ certiﬁcate regarding medi-

ﬁt't1ess"'du1y"certiﬁed' by medical doctor.

A declaration 'regarding ﬁnancial status along with supporting documents including employer's certiﬁcate, where applicable, income-tax assessment ,orde,rs_,,_ bank references and particulars concerning the properties owned.

A declaration stating that they are willing to be appointed guardian of child.

An undertaking thafthey would adopt the child according to the law of their country within a period of not more than two years from the time of arrival of the child in their country.

An undertaking that they would give intimation of such adoption to the Court appointing them as guardian as also to the social or child welfare agency in India processing their case.

An undertaking that they would_maintain the child and provide it neces- sary education and upbringing according to their status.

An undertaking that they would send to the Court as also to the social or child welfare agency in India reports relating to the progress of the child along with its recent photograph, the frequency of such progress reports being quarterly during the first two years and half yearly for the next three years.

A power of attorney in favour of an oliicer of the social or child welfare agency in India which is requested to process the case and such power of attorney should authorise the attorney to handle the case on behalf of the foreigner in case the foreigner is not in a position to come to India.

The social or child welfare agency sponsoring the application of the forei- gner must also certify that the foreigner seeking to adopt a child is per- mitted to do so according to the law of his country.

37. 6-1 M of L&JI'ND/95 (1) (2) (3) (4) (5) (6) (7) APPENDIX 'E' Child Study Report Identifying information, supported where possible by documents.

Information about original parents, including their health and details of the mother's pregnancy and birth.

Physical, intellectual and emotional development.

Health report prepared by a registered medical practitioner preferably by a paediatrician.

Recent Photograph.

Present environment--category of care (own home, foster home, institution etc.) relationships, routines and habits.

Social worker's assessment and reasons for suggesting inter-country adop- tion.

APPENDIX 'F' 385931 No. 6(3) (l5)/92-LC(LS) 18 Sep 92 and 23 Sep 92.

To Secretaries of the Institutions mentioned at Appendix 'D' Sir.

I have the pleasure to inform you that the Law Commission of India has decided to make a study on the aspect of adoption of Indian children by foreigners with a view to ﬁnd out'unscrupu1ous elements, if any, crept in it and to make recommendations to the Government of India to enact an effective law to check illepl trading in Indian chidren under the disguised inter State adoptions. It has come to the notice of the Law Commission that your society is one of the esteemed societies, which is involved in rehabilitation of abandoned children to provide them with a family atmosphere and put in the best efforts for adoption of these children by Indian as well foreign parents. lt is also understood that your society has given certain children in -adoption to the foreigners and is aware of various difficulties/problems related to such adoptions.

With a view to accomplish the object of making recommendation to the Government of India for enacting an effective law, I am directed to take this opportunity and to request you to make us aware on the following points:

(a) How many children have been given in adoption to foreign parents by your society so far? If possible, please send the details of adop-

tion by the foreign parents, country-wise, sex-wise, religion-wise etc. (1)) Do you have some monitoring mechanism to ensure that the child growth, physically, emotionally, intellectually, spiritually etc.? Whether goes into the right family which would provide an atmosphere of full such monitoring is through the Government of the country of the adoptive parents or social welfare agencies operating therein?

(c) Whether any discrimination, exploitation, abuse or misuse of the adopted child by the foreign adoptive parents has come to your notice? If so, details thereof.

(d) Any other information(s) related to above said issue. You are requested also to send your suggestions which you feel should be kept in mind while making recommendations to the Government of India to enact law so that the welfare of the child becomes the prime concern of the inter-

country adoption.

'You are further requested to send a copy' of the constitution of your society to enable us to know about the objectives and working system of your institution.

Yours faithfully, (Sd/-) (Dr. SANTOKH SINGI-I) Assistant Law Officer 39 APPEND1x"*é= use of Agencies recognked for doing Aaopuoi. of ii:

whom letters at Appendix 'F' were addressed --

Andi: Pradesh

1.

Guild of Service (Scva Samajam) Balika Nilayam, 10-3-561/3 Vijaya Nagar Colony.

Hyderabad-500 457.

2. Indian Council of Social Welfare (Red Inside' Cancer Hospital} Hyd_era.bad-560 004:

3i Action for Social Developixient, 1-3-183/40/46/' 6, .

Gandhi Nagar, Hyderabad-500 038.

11$!

4. S.O.S. Childrens Village of India, Kailash Colony-110 048.

5. Missionaries of Charity,' Nirmala Shishu Blrawan, 12, Commissioner Lane.

Delhi-ll0£}$4:

6. Delhi Coliilcil for Child Welfare Aoudsiaeouagn; ' l e

-Yamuna Marg, Civil Lines-110 054.,

7. Churchioof North India Shishu sangoggn' Greha.

St. "M_icl1e1_'s Compound Hospital Road,"

. , Jan'£pufji.%i-11o 0'14; ' T V

8. Holy Cross Social Service Centre.

34, Dr. Muk1'ierjee'Nagar West, New»Dclhi_-110

9. Welfare Home for Children."

68, Raga Garden-110015.

10. Shri Kathiawarllirashrit Balashram.' Malviya Road.

Rajkot-360 002.

Go:

11. _ Caritas Goa, Paco. Patriac_a_1, A1ltinh'a Panatji-403 O01.

Goa. '-

Iunlaln I4.

Ashraya, Jawan's Quarters, BDA Park, Double Road, IndirarNagar-l Bangalore.

'Shishu Mandir, 17/11, Cambridge Road.

Ulsoor, Bangalore-560 038.

St. Michel Home, Old Madras Road, Indira Nagar, Bangalore-560 038.

Society of Sigters of Charity' St. Genosa Convent Bal Velero Angelore Mangalore-560 003.

Ken]:

Kerala State Counil for Child Welfare Thycaud Thiruvananthapuram-695 O14.

Dinasevanasabha Snehaniketan Social Centre P3ttuVan1 1 Cannanone, Kerala.

Founding Home (Sisu Bhawan) Padapuram P.O. Via Karukuthy Emakulam District.

Kerala.

Holy Infants Mary's Girl Home 53, District Wayanad,

- Kerala.

Mnllllraslltra

20.

Hindu Women's Welfare Society Sharadhanand Mahilashram.

Sharadhanand Road, Matunga, Bombay-400019.

Bal Anand World Children Welfare Trust India Sai Krupa, 93, Ghatla Village, Chembur. Bombay--400 071.

St. Catherine's Home, Veera Desai Road, Andheri West.

Bombay-400 O58.

Shejar Chhaya, Deodal, Kaman P0. Teluka Vasai Thane-401 202.

'25.

26.

27.

28. Units:

29.

30. 42 Bharatya Samaj Seva Kendra.

No. 5, Koregaon Road, Pune-411 001.

Indian Association for Promotion of Adoption, RNA- House, 1st Floor, Veer Nariman Road. Fort, Bombay-400 O34. 3 Family Service Centre, Euchavistic Congress Building-III No. 5, Convent Street, Bombay-400 039.

Balwant Kaur Anand Memorial Welfare Society, Preet Mandis, 18. Dr. Coyasi Road.

Pune-400001.

The Society of Friends of Sassoon Hospital Pune (Maharashtra).

Subhadra Mahtab Seva Sadan At/PO G. Udayagiri Phulbani District Orissa.

Basundhara (At Chamba Tara) Khalri Home Cuttack-753 001 Orissa.

Punjab

31. Anath Sewa Society Gulab ' Devi Hospital Road, J a1landhar- 144 008.

Pondicherry

32. Tami!

33. Cluny Children's Home Cluny Sisu lllam;

Pouonnier St. Joseph No. 8, Romain Rolland Street, Pondicherry-605 O01.

Nxelxz Institute of the -sa""'a'§'l§:'SC§i'} Missionairs of Marry Society No, 3, Holy Apostles (ion. rm' St. Thomas Mount Babies Home St. Thomas Mount Madras-600 016.

S.O.S. Children's Villages of India, Chathnath Homes, Kama Prayag, Reception-cum-Adoption Centre.

12A, Nageswara Road, Nungambakkam, Madras-600 034.

35.

37. 43 Grace Kenett Foundation.

34. Kennetts Road, Madurai-625.010.

Family for Children (Kuzhanthaikal Kudumpam).

Sunshine House.

93. Mettur Main Road, Podanur-641023.

Congregation of the Sisters of the Cross of Vhavanod P.O. Bag No. 395. Tappakulam Old Goods Shed Road, Trichinappali-620 002.

West Bengal Society of Indian Children's Welfare 22, C01. Biswas Road, Ballygunge.

Calcutta.

Missionaries of Charity.

54/A, Lower Circular Road, Calcutta-700 016.

Indian Society for Rehabilitation of Children, No. 112 B, Kankulia Road, Calcutta-700 029.

Non-Placement Agency

1. Indian Council for Child Welfare,

4. Deen Dayal Upadhaya Marg, New Delhi-110 022.

--c-v-

APPENDIX 'H.' In of Agencies recognised for doing ma-co-ny Adéwu-»o'6-ﬁnlia who nsponaedtouue|euua¢AppaI,Ix'!:"

AnIlh'nP1-adesh

1. Dellﬁ The Secretary, Guild of Service (See/a /Samajam) Baljka Nilayam, 10-3-561/3 Vijay Nagar.

Hyderabad-500 457.

Indian Council of Social Welfare (Red Hills, Inside Cancer Hospital) Hyderabad-500 O38.

S.O.S. Children's Village of India Kailash Colony New Delhi-110 048.

Missionaries of Charity, Nirmala Shishu Bhavan, 12,'Commissioner Lane.

Delhi-110 054.

Delhi Council for Child Welfare Qudsia Garden, Yamuna Marg.

Civil Lane, Delhi-110 054.

Church of North India Shishu Sangopmi Greha, St. Michel's Compound Hospital Road. Jangpura, New Delhi-110 014.

Holy Cross Social Service Centre, 34, Dr. Mukherjee Nagar West, New Delhi-110 009.

Welfare Home for Children.

68. Raja Garden-110 015.

Gujent

9. Gee I 0.

Shiv Kathiawar Nirashrit Balashram, Malaviya Road, Rajkot-360 002.

Caritas Goa Paco Patriacal Althinho Penaji-403 O01.

Goa.

Km-nataka ll. Ashraya Jawan's Quarters, BDA Park, Double Road. Indira Nagar-1 Bangalore.

12. St. Michel Home Old Madras Road, Indira Nagar Bangalore-560 038.

Kerala 1 3. Dinasevanasabha Snehaniketan Social Centre, Pattuvam Cannanore Kerala.

14. Founding Home (Sisu Bhavan) Padapuram P.O., Via Karukurthy, Ernakulam District Kerala.

Maharashtra

15. Ba] Anand World Children Welfare Trust India Sai Krupa, 93, Chatla Village, Chembur, Bombay-400 071.

16. St. Catherine's Home, Veera Desai Road, Andheri West, Bombay-400 058.

17. Shejar Chhaya Deodal, Kaman P.O., Taluka Vasai, Thane-401 202.

18. Bharatya Samaj Seva Kendra, No. 5, Koregaon Road, Pune-411 001.

19. Indian Association for Promotion of Adoption, RNA House, 1st Floor, Veer Nariman Road, Fort, Bombay-400 034.

20. Family Service Centre Eochavistic Congress Building-III, No. 5, Convent Street, Bombay-400 039.

21.. Balwant Kaur Anand Memorial Welfare Society, Preet--Mandire, 18, Coyasi Road, Pune-411 001. I V '"

7~l M of L&JII\'D/95 46

22. The Society of Friends of Sassoon Hospital, Pune (Maharastra).

Orb

23. Subhadra Mahtab Seva Sadan, At/P0 G. Udayagiri.

Phulbani District, Orissa.

Punjab 7A. Anath Sewa Society, Gulab Devi Hospital Road, Jallandhar-144 008.

Pondicherry

25. Cluny Children's Home, Cluny Sisu Iliam, Pouonnier St. Joseph, No. 8, Romain Rolland Street, Pondicherry.

Tamil Nadu

26. Grace Kennett Foundation,

34. Kennetts Road, Madurai-625 010.

27. Family for Children,

-(Kuzhanthaikal Kudumparn) Sunshine House, 93, Mettur Main Road, Podanur-641 023.

West Bengal

28. Society for India Chi1dren's Welfare,

22. Col. Biswas Road, Ballygunge, Calcutta-

29. Missionaries of Charity, 54/A, Lower Circular Road, Calcutta-700 016.

30. Indian Society for Rehabilitation of Children, No. 112B, Kankulia Road, Calcutta-700 029.

Non-Placement Agency .

1. Indian Council for Child Welfare, 4, Deen Dayal Upadaya Marg, New Delhi-110 002.

Note: Letter was also sent to the Central Aadopﬁon Resource Agency, Ministry of Welfare, Government of India, New Delhi, ._¢.~_-i .--M. APPENDIX 'I' Practical Working Experience»! the Child Welfare Agencies The practical working experience gained by the child welfare agencies can be summarised as under:--

(1) When the adoption dossier is received from foreign organisation, it is screened by professional social workers of the recognised child welfare agency.

When approval is accorded by Indian agency then such agency, which has ap- proved the adoption dossier, ﬁles the case for guardianship in local family court, where such court exists or in a district court.

The Indian Council of Social Welfare screens the family documents of the foreigner and, accordingly, makes a recommendation to the court. The judge gives his order if he is satisﬁed with the case. Thus that every family applying for adoption from overseas is screened by a series of authorities for their character, motivation. stability, mental and physical health, employment and income and life style.

After such screening there have been no cases of misuse or abuse and the problems which have come to light concern the common problems of teenagers and family situations rooted in the child's sense of rejection by his birth parents.

(2) By and large the children placed in inter-country adoption are those who are either relinquished or abandoned. Hence, the religion of the child has not been determined by the child welfare agencies.

(3) That most of the foreign adoptive couples are Christians and they prefer to adopt even a handicapped child and an ugly looking girl-child, which might not be acceptable to Indian adoptive parents, and the children adopted by them receive the best possible medical and emotional care.

(4) Those who are old enough for employment were selected for the job on the basis of their aptitude and did not face any discrimination. Though they are brought up by white parents, yet the adopted children are totally assimi- lated into the family net-work and the social fabric. They are not looked upon as immigrants or refugees.

(5) Occasional instances relating to problems of adjustment faced by the children and the family are handled and resolved delicately through counselling by the social Work Agency. To facilitate the child's adjustment some agencies abroad have now organised 'support groups for _adopte_es'. _In these meetings. adoptees are able to discuss and come to terms with various issues on adoption.

that adoptive parents tend to (6) Some of the Indian agencies observed adopted be over indulgent and excessively proud of and grateful for their children.

(7) In some countries agencies through which Indian agencies are making adoptive placements in the foreign country organise social get-togethers at Christmas time or summer time. Some of them also organise 'India Day celebrations.

(8) The Indian Embassies and High Commissions abroad monitor adop- tions of Indian children by foreign parents. 'Post-placement reports are ﬁled in the relevant Indian courts for 5 years. >Su h reports of the child are sent quarterly during the first two years and half- early for the subsequent three years until the adoption is effectuated. A. e I _ ' .2 47 48 Occasional reports about the welfare and progress of the child are aiso received from the adoptive parents by the Indian child welfare agencies.

_ (9_) Every_ year there are visits Iiidia of some foreign adopted children with their adoptive parents. The children are every keen to discover their roots and to lmow about their country of origin: ' ' V_ (10) _Some Indian agencies's workers are visiting the adopted children and their families abroad and sometime conduct social .@therings of these "children there in order to get a clear idea about the welfare and progress of the children _, (_11) That most_ of the Indian child welfare agencies have developed close association with foreign child welfare agencies through their work of inter~ country adoption. This facilitates better monitoring of the welfare and pro- gress of the Indian children adopted by the foreign parents.

(12) There are some factors which entail the involvement of foreign government oﬂicials in the inter-country adoption. Firstly, one of the documents required for inter-country adoption is the 'a roval of the country's Government'. This is a document which endorses the valid -ty of the~foreign adoption applicants and consequently grants permission for the adopted child's entry into the foreign country. The approval is given after the careful scrutiny of the adoptive parents by their country's government oﬂicials/immigration department.

Secondly, the factor requiring foreign government involment is that all inter~eountry adoption documents prior to their acceptance need to be notarised and the notarised signature is authenticated by either the Ministry of External Affairs or Justice or Social Welfare of the Country of the foreigner or by an olﬁcer of the Indian Embassy/Consulate or High Commission in that country.

Thirdly, the, overall monitoring of adoption process and wellbeing of children adopted, with full status, as citizens having equal rights like others is the responsibility of foreign governments.

(13) Generally social welfare agencies do not restrict placement of children to any one country or agency, excepting few of them who restrict their activity to the selected few countries.

(14) In Sweden when a couple applies for adoption the Government esta- blished social welfare committee gives an approval of the family checking out their record as citizens of Sweden. Thereafter, a social worker, who is a Swedish Government employee, conducts the 'home study' interviews, visits the home, screens the family for suitability for adoption of a foreign child.

Then the family registers for adoption of a child from India with a licensed adoption agency in Sweden. This agency is also recognised and listed by the Ministry of Social Welfare of the Indian Government. It is this agency which forwards the documents to the Indian recoﬂised child welfare agencies and is fully responsible for the placement of the_ A ld in case of any problem 'and also undertakes to do post placement reporting as per the requirement of the Indian Courts.

When the child goes to Sweden under the custody of the guardian ap- pointed by the Indian court, the child is legally adopted under Swedish law. The law of adoption in Sweden confers absolutely equal rights upon the adopted child.

In Sweden, the children enjoy all social security measures including free education, health, unemployment beneﬁts, old-age care etc. The adoptive parents get one year paid maternity/paternity leave to take care of the child. They have the option to return to only part time work after this leave period is over. The child is offered free day foster-care with a foster

-_--..x Ar...-Inna am nrrriM .I9mOlJI 20 I0 'W0l'k.

Sweden has a governmental apex body called NIA,to 'monitor inter» country adoption. In case any adoption agency or adoptive family has any serious problem, it can take action on the same. NIA holds an annual conference of child welfare policy makers, governmental social workers and members of the Swedish Parliament at which they discuss issues concerning inter-country adoption. At this meeting they also invite people involved in child care activi- ties in India. In this way adoption in Sweden is thoroughly monitored.

'_ (15) In USA where Indian children are placed for adoption, it being a federal state. laws diﬁer from state to state.

Some Indian agencies work with a few selected agencies which are licensed for adoption by their state government as well as recognised by the Indian' ' Government for processing and doing follow up work of Indian children placed in adoption. For example, society of Friends of the Sassoon Hospital. Pune, work with the Wide Horizons for Children Inc. in Boston State and Hold International Children's Service in Oregon State.

84-1 M of LaJIND/95 APPENDIX 'J ' Asperthebatakeportetlbyk Asmdcs No. Name and address of the Years organisation 1989 Years 1990 Foreign Indian Foreign Indian Adop- Adop- Adop-

tion tion tion Adop-

lion ecogdsed Inﬁll Social/Child Welfare in-ingﬂ:eyeus1!I!.19wunl1991 Years 1991 Foreign Indian Adop- Adop-

tion tion (1) (2) (3) 7 .

1. Guild of Service (Seva Sama'am) J Balika Nilayam, 10-3-56]/3 Vijaya Nagar Colony, Hyderabad-500 457 4

2. Indian Council of Social Welfare (Red Hills, Inside Cancer Hospital Compound) Hyderabad-560 004 20 Delhi

3. S.0.S. Chiidren's Villages of India, A-38, Kailash Colony, New Dell-11-110 048 3

4. Missionaries of Charity Nirmala Sishu Bhawan 12, Commissioner Lane, Delhi-110 054 137

5. Delhi Council for Child Welfare, Qudsia Garden, Yamuna Marg, Civil Lines.

Delhi-110 054 22

6. Society for Child Development House No. 630, Caranzelom Goa-403 002 3

1. Caritas Goa Paco Patrinrcel Altinho Panjim Goa-403 001 13 Gllhnt

8. Shri Kathiawar Nirashrit Balashram Maiviya road Rajkot-360 002 3

9. Mahipatram Rupam Ashram Opposite Rainur Gate Ahmedabad-380 022 27 Hcyana

10. Haryana State Council for Child Welfare Bal Vilcas Bhawan 650, Sector 16 D Chandigarh-160 016 6 Knnntalm I1. Canara Bank Relief & Welfare Society 27th Cross, Panashankari 2nd Stage Bangalore-560 070 5

12. Ashraya Jawan's Colony. B.D.A. Park Double Road, Indira Nagar 1st stage.

Bangalore-560 038 15 (4) 10 (5) ll 23 126 29 (6) 14 60 43 (7) (3) 16 7 lo

-A ...

ll] 78

---wn-mac-.«.e«4: ..

Si (I) 13 (2) (3) St. Micl1acl's Home Old Madras Road.

Indira Nagar, Bangalore -560 038 10 Society of Sister's of St. Joseph of Tarbes

47. Promenade Road, Bangalore-560 005 4 Shishu Mandir 1341, 10th Cross Indira Nagar. 2nd Stage Bangalore-560 038 --

"Ken-ala l6.

17. I8.

St. Josephs's children's Home Kummannoor, Cherpunkal l'.0. District Kottayam 38 Foundling Home (Sisu Bhawan) Padupuram P.O. via Karukutty District Eranakulam 2 Kerala State Council for Child Welfare. Thucaud Trivandrum-695 014 -

Maharashtra I9.

25.

26. Balwant Kaur Anand Memorial Welfare Society, Anand Corner, 18 Dr. Coyaji Road, 'Pilné-411 001 10 Indian Association for Promotion of - Adoption, RNA House. 1st Floor, Veer Nariman Road.

Fort, Bombay- 400 034 Children of the World (India) Trust.

501, Arun Chamber Tardeo, Bombay- 400 034 I7 Pushpawadi Founding Home Nagpur House of Mary Immaculate Providence School compound Civil Lines Nagpur-440 001 14 Bharatiya Samaj Seva Kendra 5, Koregaon Road, Pune-411 001 41 Mahila Sewa Mandal 25/-20 Karve Road Pune - 411 004 3 Family Service Centre Eucharistic Congress Building-II No. 5, Convent Street.

Bombay-400 039 5 Maharashtra State Women's Council Rescue home, Asha Sadan Marg, Umerkhadi Bombay-400 009 15 Vivekanand Bala Sadan Seth Daga, Dharamsala Opp. Railway Station Kampte, Nagpur-411 002 3 (4) 10 17 ll 56 33 (5) 11 I6 17 45 10 34 (6) 17 19 68 43 36 (7) (8) Not renewed Not renewed 14 20 38 ll 27 27 52 (I) (2)

28. Hindu Women's Welfare Society / Shnradhanand Mahilashram, Shnradhanand Road, Matunga.

Bombay-400 019

29. W.B.N. Belzkashram 431 Navi Peth Pmdhnrgur District holapux

30. Missionaries of Charity Nirmala Shishu Bhawan, Church Road, Ville Perle (West) Bornbay400 056 3!. Matru §ewa. Sangh (Found_mg Home} Insfitutron of Social Work Bum Nasar Nagpur-411 010

32. St. Crispin's Home _ FR-10, CTS-12, Karve Road Barnbdawane Pune-411 010

33. Bel Anand World Children Welfare Trust, 93, Ghatla Village Chembur Bombay-400 071

34. St. Catherine's Home Veera Doeei Road Andheri (West) Bombay-400 059

35. Holy Cross Home for Babies C/o Holy Cross Convent Amravati (Camp)-444 602

36. Kuan Vin Charitable Trust 91, Advent, 12-A, General Bhondae Road, Bombay-4-(X1 021 Orluu

37. ' Manoj. Manjari Shishu Bhawan AT/P.O. Keonihargarh District Keonjargarh _ Pin-738 001 i';b,:*3",Pa*ahd:=W=-sad"

District Phu1ban'i'-"7"6'§'1oo

39.} Buundhara AT. Dhrubetara Khalasi Lane Pondicherry

40. Cluny Children'; Home (C1uny sisu lllam) Pouponnier St. Joseph

8. Romain Rolland Street Pondicherry-605 001 Teal] Nadn

41. Guild of Service (Central)

28. Case. Major Road Egmore Madras-600 008

42. Cong: tion of the Sisters of the Cross 0 Chlvanod . -

:3. No. 395. Old Goods Shed Road N2 1 (3) 47 (4)

-52 50 33 (5) ll 70 44 26 (5) 70 19 III (7) (8) Not renewed Ndt renewed Not renewed Not renewed 10 6 53 (1) (2) (3)

43.

45.

47. Institute of the Franciscan-

Missionaries of Mary Society No. 3. Holy Apostles Convent St. Thomas Mount Babies Home St. Thomas Mount "

Madras-600 016 - ' --

Concord House of Jesus (Home for Helpless Kids) 10, Venkatamma Samati Street Purasaiwalkam Madras-600 008 4 Grade Kennett Foundation 34, Kennett Road, District Madurai Madurai-625 010 10 Families for Children (Kuzhanthaigal Kudumpam) 107, Vellalore Road Podanur District Coimbatore Podanur-641 023 2 SOS Children's Villages of India, Chatnath Homes Karan Praya Reception-cum-Adoption Centre lst Main oad, Uttar Pradesh

48. Uttar Pradesh Council for Child Welfare Moti Mahal, Rana Pratap.

Lucknow - -

West Bengal 49'.

50.

52.

53.

55.

56. ' 57.

Missionaries of Charity' 54/A Lower Circular Road Calcutta-700 016 Society for Indian Children Welfare 12;." C01. Biswas Road Y8ll1|8¢ Calcutta 73 Society 'for Spon. & Adoption, 1 Kyd St. Calcutta- 700 016 34 International Mission of (India) Society

2. Niinak Mahal Calcutta-700 048 ._ Indian Society for Rehab. of Children 1124!, Kankulia Road, Calcutta-700 029 '55 Shri Shraddhanand Auathalaya Shraddanand Peth Nagpur 64 Guild Welfare & Rehabilitation . Society Akashwani Road, Rsja Bazar Patna;800 014 ' 8 Society of sisters of Charity St. Georges convent Bangalore 19 Society of Sisters of Charity vent C" 19 171 (4) 96 (5) 11 203 37 29 '53 32 (6) 97 33 36 12 (7) ' on Not renewed Not renewed 150 27 35 32 I50 27 Not renewed Not renewed I' q-.-.--....--'.

(1)

58. 62-.

65. (2) (3) (4) (5) (6) (7) (8;

Welfare Home for Children 68, Raja. Garden New Delhi 23 8 25 13 24 18 I-loly Cross Home for Social Service

34. Mukherjee Nagar, New Delhi Mjs Church of North India Janspura, New Delhi 33 25 36 29 33 35 Action for Social Development Administrative 1-3-183/40!46[6, Gandhi Nagar Hyderabad-500 380 --- --_ _. _ _. _ Society of the Friends of the Sassoon Hospital Poona.

Cfo Medical Social Workers Departments. Room No. 80, Sassoon General Hospital.

Pune-411 001 -- ---. ._ __ 11 3 Dinasevanasabha Sneheniketan Social Centre Pattuvam District Cannanoore 24 6 6 7 3 1 1 Shejhar Chhaya Deodal Kaman P.0., Taluka Vasai Distt. Thana Maharashtra -- ---- 10 7 Anath Sewa Society, Gulab Devi Hospital Road.

Iallandhar. Punjab ---- -- ---- ._ I-loly_Infants Mary 's Girls Soﬁe' Vythm District-Wynnd Kerala 18 7 28 10 15 21 GRAND TOTAL 1213 757 1272 1075 11!) 936 1989 Foreign adoptions-l213 Indian adoptions--757 I990 Foreign adoptions--~l272 Indian adoptions--J075 199] Foreign adoptions-1190 Indian ad.options----936

-'$.13-§."i.'€ : Central Adoption ;f«;--w.i:..we;ss kgency (Ministry of Welfare) Letter No. 3-53/92-C¢I:A 171? dated 25th i avemha-.r. 1 '92.

Non.--- Central Adoption 5'.-w-»:rv.«. agency not only responded to our communication, but the Joint Secy. [ncharge of CARA was very helpfuijn providing necessary infor- mation promptly as requisite inputs Personal interactions with him were quite useful.

APPENDIX 'K' Plneelnqlt Agmcy-wbe Data relating to Children Adopted by Foreigners 3'} NIIIIG Of 1110 Aoency Number of Children given in Adoption during N°- Total Remarks 1988 I989 I990 I991 1992 1993 (M) (F) (M) (F) (M) (F) (M) (F) (M) (F) (M) (F) (M+F)

0) (2) (3) (4) (5) (6) (7) (8) (9) (10) (H) (12) (13) 114) (15) (16)

1. Bharatya Samaj Seva Ken- -- ---- --_ H - _ _ _ _ 2. ---- -- 304 No year-wise break- . Punt. (M---66; F=238) up given.

2- Caritas Goa, Panjim. -- ._ __ __ _ _ _. ._ .. _ H # 87 Data given from (M=39: F=48) 1986 to 1991

3. Clunx Children's Home, _ __ _ _ - _ _ __ _ _ - _ 415 Data given from Pondnchen-y. (M=98;F=3l7) 1968 to 1992 4- Ddjlicouneil for Child 6 17 8 18 2 25 3 25 ---- 25 -- -- 559 Data given from . " " (M=l58;F=4ll) 1978 to 1992 5- Dinasevanaubha, Pattuvam, _ .. _. -- _ ._ _. _ _ .. ---- _ :85 No break-up and Cannanore, Kerala. (M=77;F=48) year mentioned :52 . for Children, .-- _ -- 2 1 5 6 3 3 -- -- -- 20 Podanur, Coimbatore. (M = l0;F= i0) --

7. Family Service Centre, 2 6 I 8 -- 7 I 4 -- -- -- - 88 Since 1975 Bombay. (M=25;F=63)

3. Grace Kennct Foundation, 1 2 -- 10 4 12 5 9 -- 9 -- -- 77 Since 1985 to 1992 Madurai. (Ml4;F=63)

9. Indian Society for Rehabili- 63 ---- 39 --- 28 ---- I5 -- ---- --- -- 206 N0 S¢XWi3° union of Children. Calcutta. break up given: from 1985 to 1992 (Oct.)

10. Missionaries of Charity, _ _ __ __ __ __ _ __ __ .4 -- ---- 2358 No sex-wise break utta. up given and data from 1960 to 1991 ll. Missionaries of Charity, 2 23 7 9 -- ---- -- -- -- -- -- -- Delhi.

(M=9; F=32) SS 'X13?' (1) _ _ (1) (3) (4) (5) (6) (7) (3) (9) (10) (ll) (12) (I3) (14) (15).

12. Pingla Gm, Jalandhar -- -- --- -- -- ---- --- ---- 1 _ _ _ 1' (12; City. A _. -4-

13. Pteet Mand'ir.Pune. 3 6 -- ll ---- 8 -- 3 1 3 -- -- 62 . (M=S;F=57) Since 1987.

14. sh ' Chhaya. Thane, -- --- --- ---- -- ---- --- -- --- -- -- -- 28 ' ~ Mgifrahtm (M=5; F=23) No year-wise _ _ break up given

15. SOFOSH; Pune.. l 13 1 12 1 5 l 11 ---- -- -- ----- 92 Since 1985 (M=10;F=82)

16. SOS, .,Cliildre_n'a Villages of 1 4 1 4 ----- 2 \ --- 3 -- -- -- --- 27 Data from India. Kailash Colony. (M=8;F=19) 1984 to 19.91 New Delhi.

17. Shim Sansopan . Griha. - - -- - ----- - -- --- --- -- --- -- 241 No year-wise Jangpura, New Delhi. (M=64;F=177) break up given; ' Since 1985 to 1992 ' (Oct)

18. Society for Indian Children -- ---- -- ----- -- -- -- -- -- -- -- -- 941 .Data from 1979 to

4. ﬂgltare, (M=-364;F=577) 1991 . 19. 8!. ' Catherine's Home. 24 15 10 17 9 ll 3 8 3 2 - --- 237 x No year-wise break . hndliei-i(W). Maharashtra. (M=116;F=l2l)up oven

8. Sign Bhaban. Sister of Naza- -- -- -- --- -- ---- --- -- -- -- ---- --- 232 Till October, 1992 .nth.Poduapiu'ani.«Keta|a. (M-.-V99;F=133) _

21. St. Michel's Home, -- --- ---- ---- ---- -- -- -- -- ---- -- -- 237 Data given from Bangalore. (M =95 ;F=l42) 1954 onwards. No ' year-wise break' up

22.' Subhadra Mahtab Seva Till the date of issue of this receipt processing has been going for six children for the clearance in court of law Sudan, Ganiam, Orissa. for adoption. -- 9 ' '

23. World Children Welfare ---- --- -- ---- ---- -- -- ---- -- --- ---- ---- , 338' Till September 1992; Trust India, Bombay. (M=95;F=243) No _year-wise break . A "P W?" .

31. Welfare Home for Children, ---- -- -- .--- -- ---- ---- -- ----- ---- ---- ---- 76 Since 1980 to Oct. 92 New Delhi. (M=22;Fg-----S4) . Source: 30 recognised social child welfare agencies reepondedto the communication ofthe Law Commission (Appendix '17'), but the above mentioned 24 agencies supplied data relating to foreign a ption.

MGIPCIE-S-2-1 M of L&JINDI95--l3-3-97-285.

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