CONFLICT OF LAWS 1

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY,

LUCKNOW

ACADEMIC SESSION: 2017-2018

CONFLICT OF LAWS
Final Draft
“Inter-country adoption laws and
policy in India”

Submitted To: Submitted By:

Dr. Prem Kumar Gautam Neelesh Ramchandani

Assistant Professor(Law) B.A.LL.B(Hons.)

RMLNLU VIIIth Semester

Lucknow Section-B

Enrolment No.: 140101081

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ACKNOWLEDGEMENT

It feels great pleasure in thanking Dr. Prem Kumar Gautam- Assistant Professor (Law)
for giving me this opportunity to work, on the project topic 'Inter-country adoption laws and
policy in India', which helped me in doing a lot of research and gain knowledge on the
same.

I would also like to thank my family and friends for their support and guidance. Lastly, I wish
to thank the library staff for providing help in finding appropriate books and content related
to the project topic.

Neelesh Ramchandani

8th Semester

EnRoll No.:140101081
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TABLE OF CONTENTS

INTRODUCTION ....................................................................................................................................... 4
INTER-COUNTRY ADOPTION REQUIREMENT .......................................................................................... 7
PROVISIONS FOR INTER-COUNTRY ADOPTION IN INDIA ........................................................................ 8
APPOINTMENT OF A GUARDIAN........................................................................................................... 13
INTERNATIONAL LEGISLATIVE FRAMEWORK ........................................................................................ 16
CENTRAL ADOPTION RESOURCE AUTHORITY (CARA) ........................................................................... 18
GUIDELINES GOVERNING ADOPTION OF CHILDREN, 2015 ................................................................... 19
CONCLUSION......................................................................................................................................... 21
BIBLIOGRAPHY ...................................................................................................................................... 22
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INTRODUCTION

The word 'adopt' comes from the latin word 'adoptare', which means to choose, to take by
choice into a relationship; especially to take voluntarily (a child from other parents) as one's
own child. According to Black’s Law Dictionary, adoption is the act of one who takes
another’s child into his own family, treating him/her as his own, and giving him/her all the
rights and duties of his own child. It is a juridical act creating between two persons certain
relations, purely civil, of paternity and filiations. Inter-country adoption (hereinafter ICA) can
be defined as adoption of a child by a person of another country. The meaning of adoption as
provided by the Central Adoption Resource Authority (CARA), reads as follows:

‘Adoption’ means the process through which the adopted child is permanently
separated from his biological parents and becomes the legitimate child of his adoptive
parents with all the rights, privileges and responsibilities that are attached to the
relationship.

It can be said as the statutory process of terminating a child's legal rights and duties towards
the natural parents and substituting similar rights and duties towards adoptive parents.
Though the practice of adoption has been exercised from ages, the concept of Inter-country
Adoption is relatively a new concept. International adoption is largely a phenomenon of the
last half of the 20th century. The numbers and patterns of international adoption has changed
over the years in response to the changing political attitudes of both sending and receiving
countries, and the international community as a whole, and not simply to the objective needs
of children for homes or the desire for prospective parents for the children. The poor
countries of the world had long had an access of children for whom they cannot adequately
care; children doomed to grow up in grossly inadequate orphanages or on the streets. The rich
countries have always had an access of infertile adults who want to parent and relatively
limited number of homeless children. Yet there was virtually no matching of these children
with these adults until after the Second World War. That war left the predictable deaths and
devastation, and left the plight of parentless children in the vanquished countries visible to
the world at a time when adoption was beginning to seem like a more viable option to
childless adults in more privileged countries who were interested in parenting.

In successive years different countries have decided whether or not to make their children
available for adoption abroad based on some combination of perceived needs of homeless
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children, often precipitated by war, poverty or other forms of social crisis, and political
attitudes, which can make international adoption unacceptable as a method of addressing
children’s needs regardless of the extent of those needs and the extent of social crisis.

By contrast, in ICA adoptive parents and children meet across lines of difference involving
not just biology, but also socio-economic class, race, ethnic and cultural heritage, and
nationality. Typically the adoptive parents are relatively privileged white people from one of
the richer countries of the world, and typically they will be adopting a child born to a
desperately poor birth mother belonging to one of the less privileged racial and ethnic groups
in one of the poorer countries of the world. ICA is characterized by controversy. Though
Inter-Country adoption has become quite regular throughout the world, still it is most
unfortunate that often Inter-country adoption leads to misuse or ill use of children.
Sometimes, it becomes a mask for trafficking in children. These types of adoption involve
Trans-racial, Trans-cultural and Trans-national aspects and therefore care has to be taken that
the process of solving the problems of such children may not land them in more difficulties
arising on the wake of mal adjustment in the new atmosphere.

Over the last 10 years, the numbers of children who are adopted by families who live outside
of the child's birth country has more than tripled. Our increasingly globalized world is
blurring the edges of racial, ethnic or national identity. Nowhere is this phenomena more
actualized than in the act of building a family through inter-country adoption. In the United
States, alone, more than 20,000 children a year are being adopted from China, Russia, and
other Asian, Eastern European, and Latin American countries. Yet, this increase in numbers
of children receiving permanency and the opportunity to grow and develop within loving
families, can be deceptive, as it represents but a small percentage of the hundreds of
thousands of children born into poverty or abuse, who, because of the lack of adequate
adoption service infrastructure, are languishing in institutions, living on the streets, or living
lives of unmitigated poverty with no opportunity to develop to their fullest potential. And
unfortunately, they represent but a small percentage in comparison to the children who have
died from treatable illnesses, malnutrition and neglect.

The increase in the numbers of children being adopted by families from other countries has
also been the cause of an enormous increase in Public Policy Controversy, leading to The
Hague Convention and Treaty on International Adoption, and numerous countries changing
their internal laws and policies, to regulate inter-country adoption practices. It has also led to
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an actual decrease in opportunity for hundreds of thousands of children who need families to
ever have this opportunity, or to benefit from this opportunity early enough in their lives to
escape the ravages of lack of nurture, institutionalization, malnutrition, and lack of
educational opportunity. Nevertheless, it must be recognized that some children adopted from
foreign countries arrive in their new families with special needs. In some cases the child's
special needs are known or diagnosed prior to adoption, in some cases not. Some inter-
country adopted children may be immediately diagnosed with treatable medical conditions,
while some children may later develop conditions which entail a longer term commitment to
treatments or therapies. However, it is important that prospective adoptive parents recognize
that there are risks as Inter-country Adoption has become much more controversial than what
used to be the case.

As a result of this, there have been many moves to "clean up" inter-country adoption that
often seem to have a polarizing effect between agencies and adoptive families. In addition,
legislators, NGOs, and other interest groups have been prone to jump on the bandwagon of
increased regulation in attempts to repair the causes that have led to the unfortunate minority
of adoption cases mired by poor practices and controversy associated with inter-country
adoption and be prepared to deal with them.
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INTER-COUNTRY ADOPTION REQUIREMENT

Inter-country adoptions are subject to more oversight and controls than domestic adoptions.
Prospective parents must conform to the requirements of their state of residence and each
country has its own laws that must be satisfied as well. Both the parents and the children
must also meet eligibility requirements of the Immigration and Naturalization Service before
the child is issued a visa. To enter the U.S. with a preference visa as an adoptable orphan, a
child must be a true orphan, be unconditionally abandoned, or have a sole surviving parent
who is unable to care for him. Typically, an inter-country adoption takes 9 to 18 months to
complete, after a social worker gathers a complete set of information regarding the
prospective adoptive family, attitudes toward adoption, and the type of child desired. The
information seeking process and final report are referred to as a home study.

A review of the research of outcomes for children adopted internationally suggests that the
children generally do quite well. Attachment, identity, and comfort with adoption issues are
generally reported to be good. International adoptees typically find racial discrimination
issues to be more troubling than issues stemming from adoption. The rates at which
international adoptions disrupt or lead to the return of the child to the pre-adoptive
environment are equivalent to those for domestic adoptions.

TRANSRACIAL ADOPTION: The subject of trans-racial adoption is often controversial

among policymakers, child welfare practitioners and the general public in this country,
particularly when it concerns the adoption of African American children by Caucasian
parents. Generally speaking, the trans-racial adoption of children of other racial, ethnic or
cultural backgrounds, whether Asian, Indian, Latino, South or Central American, or from
Eastern Europe or other countries around the world, is more readily accepted. The trans-racial
adoption of African American children, however, seems to raise the persistent question of
whether or not such arrangements are ultimately in the best interests of the child.
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PROVISIONS FOR INTER-COUNTRY ADOPTION IN INDIA

The concept of Inter-Country adoption is relatively a new concept in India. It did not find
place in the top priorities of the legislators. There was not and still does not exist a legislation
which primarily provides for the rules regarding Inter-Country adoption.

The question regarding the validity of inter-country adoption was first debated in the well-
known case of In Re Rasiklal Chhaganlal Mehta1 whereby the Court held that inter-country
adoptions under Sec 9(4) of the Hindu Adoptions and Maintenance Act, 1956 should be
legally valid under the laws of both the countries. The adoptive parents must fulfil the
requirement of law of adoptions in their country and must have the requisite permission to
adopt from the appropriate authority thereby ensuring that the child would not suffer in
immigration and obtaining nationality in the adoptive parents’ country.

Later, in the year 1984, the Hon'ble Supreme Court of India in a landmark case of Laxmikant
Pandey v. Union of India2 laid down few principles governing the rules for inter-country
adoption. The case was instituted on the basis of a letter addressed to the court by a lawyer,
Laxmikant Pandey alleging that social organizations and voluntary agencies engaging in the
work of offering Indian children to foreign parents are indulged in malpractices. It was
alleged that these adopted children were not only exposed to long horrendous journey to
distant foreign countries at the risk of their life but they also ultimately become prostitutes
and beggars. Supreme Court in this case expressed its opinion and framed certain rules for
Inter-Country adoption.

The Hon'ble Court asserted in Para 8 of the judgment that, “while supporting Inter-Country
adoption, it is necessary to bear in mind that the primary object of giving the child in
adoption being the welfare of the people, great care has to be exercised in permitting the
child to be given in adoption to foreign parents, lest the child may be neglected or abandoned
by the adoptive parents in the foreign country or the adoptive parents may not be able to
provide the child a life of moral and material security or the child may be subjected to moral
and sexual abuse or forced labour or experimentation for medical or other research and may
be placed in worse situation than that in his own country.” It further went on to give the
prerequisites for foreign adoption. It stated that in the first place, every application from a

1
AIR 1982 Guj.193.
2
AIR 1984 SC 469.
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foreigner desiring to adopt a child must be sponsored by social or child welfare agency
recognized or licensed by the government of the country in which the foreigner is a resident.
No application by a foreigner for taking a child in adoption should be entertained directly by
any social welfare agency in India working in the area of Inter-Country adoption or by any
institution or centre or home to which children are committed by the juvenile court. The
Supreme Court also insisted upon the age within which a child should be adopted in case of
ICA, and held that if a child is to be given in ICA, it would be desirable that it is given in
such adoption before it completes the age of 3 years. Such a ruling was delivered by the
Supreme Court because it felt if a child is adopted by a foreign parent before he or she attains
the age of 3, he or she has more chances of assimilating to the new environment and culture.
Another important rule framed by the Court during the course of judgement was:

“Since there is no statutory enactment in our country providing for adoption of a child by
foreign parents or laying down the procedures which must be followed in such a case, resort
had to be taken to the provisions of the Guardian and Wards Act, 1890 for the purpose of
felicitating such adoption.”

Considering the possibility of child trade for prostitution as well as slave labour, legal
regulation of such adoptions was essential. Therefore, Justice Bhagwati created a scheme
for regulating both inter-country and intra-country adoptions. The Supreme Court held
that any adoption in violation of or non-compliance with may lead adoption to be declared
invalid and expose person concerned with to strict action including prosecution. A
regulatory body, i.e., Central Adoption Resource Agency (for short ‘CARA’) was
recommended and accordingly set up by the Government of India in the year 1989.
Since then, the agency has been playing a pivotal role, laying down norms both substantive
and procedural, in the matter of inter as well as in country adoptions. The said norms have
received statutory recognition on being notified by the Central Govt. under Rule 33 (2)
of the Juvenile Justice (Care and Protection of Children) Rules, 2007 and are today in
force throughout the country, having also been adopted and notified by several states under
the Rules framed by the states in exercise of the Rule making power under Section 68 of the
JJ Act, 2000.
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Following this judgement, the Indian courts gradually broadened the scope of adopting child
to other countries. In the later judgments, the courts have also interpreted the word ' custody'
to make adoption easier. The Bombay High Court in In Re Jay Kevin Salerno3 iterated that:

‘where the custody of a child is with an institution, the child is kept in a private nursing home
or with a private party for better individual care of the child, it does not mean that the
institution ceases to have the custody of the child.’

Therefore it may be submitted that in the absence of any explicit legislation on the subject,
the Supreme Court has played a pivotal role in regulating the adoption of tendered aged
children to foreign parents. It has taken the help of various international guidelines and
subject to Indian culture framed the rules thereof. In the case of Mr. Craig Allen Coates v.
State through Indian Council for Child Welfare and Welfare Home for Children,4 the Court
held that where the adoptive parents fail to establish clearly the motive for adopting a child
from another country, then the adoption process would be barred and be declared as mala fide
and that CARA should ensure more stricter guidelines in this regard.

The Bombay High Court in a recent judgment, Varsha Sanjay Shinde & Anr. v. Society of
Friends of the Sassoon Hospital and others5, held that once a child is approved by an
overseas couple after the due procedure is followed, the same child cannot be shown to other
Indian parents and that such Indian Parents then cannot claim any right or priority to get the
child merely because they are Indian Parents and preference should be given to them over
Overseas Indians and Foreign Couples.

Court further laid down following guidelines for in-country and inter-country
adoptions to be read and applied in consonance with Guidelines of 2011:

(i) All the concerned Agencies viz RIPA, Specialized Adoption Agencies, SARA, ARC,
AFAA to scrupulously follow the Guidelines which have been laid down in 2011

(ii) Though there is no specific number mentioned in the Guidelines as to the number of
Indian parents to whom the child should be shown, within a period of 3/4 weeks, the child
should be shown to as many Indian parents as possible and, secondly, at a time, the child

3
AIR 1988 BOM 139.
4
162(2009) DLT 605.
5
Writ Petition no. 9227 of 2013 Decided on 18 th October, 2013.
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should be shown only to one parent and not multiple number of parents as has been done in
the present case.

(iii) Only if the child is not accepted by Indian parents and the Adoption Agencies on account
of their experience come to conclusion that the child is not likely to be taken in adoption by
Indian parents then, in that case, it should be shown to foreign parents.

(iv) When the child is shown to the foreign parents, it should be shown in the list of priorities
which are mentioned in the said Guidelines.

(vi) ARC and SARA should work not in conflict but in coordination with CARA, it being the
Centralized Nodal Agency.

However, at the international level, India has signed the Hague Convention on inter-
country adoption on January 9, 2003 and ratified the same on June 6, 2003 with a view to
strengthening international cooperation and protection of Indian children placed in ICA. ICA
processing in Hague countries is done in accordance with the requirements of the
Convention; the United States of America (U.S./U.S.A.) implementing legislation, the Inter-
country Adoption Act of 2000 (IAA); and the IAA’s implementing regulations, as well as the
implementing legislation and regulations of India. For the purpose of implementation of the
Convention in India, Ministry of Social Justice and Empowerment is functioning as the
administrative ministry and Central Adoption Resource Authority (CARA) as the central
authority, which functions as an autonomous body under the Ministry of Women and Child
Development. It functions as the nodal body for adoption of Indian children and is mandated
to monitor and regulate in-country and ICA. CARA primarily deals with adoption of orphan,
abandoned and surrendered children through its associated /recognized adoption agencies.

At national level, India has prepared a National Policy for children in 1974 under which
Ministry of Social Justice and Empowerment (now known as Ministry of Women and Child
Development) and has got the mandate to enact laws regarding welfare of children. The
Juvenile Justice (Care and Protection of Children) Act, 2000 is a landmark in this regard.
This Act has incorporated the provision of adoption of child as an alternative to institutional
care.

The Supreme Court of India has laid down that every application from a foreigner or NRI
(non-resident Indian) or PIO (person of Indian origin) (as applicable) desiring to adopt a child
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must be sponsored by a social or child welfare agency recognized or licensed by the

government or a department of the foreign government to sponsor such cases in the country
in which the foreigner is resident. The foreign agency should also be an agency ‘authorized’
by CARA, Ministry of Social Justice and Empowerment, Government of India. No
application by a foreigner or NRI or PIO for taking a child in adoption should be entertained
directly by any social or child welfare agency in India.
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APPOINTMENT OF A GUARDIAN

The aspect of appointment of a guardian is very important because if care is not taken in
selecting the parents then it may lead to trafficking in children. It must be stated in this
respect that the provisions of Guardian and Wards Act, 1890 are applicable in case of Inter-
country adoption. Section 7 of the said act provides that, when the district court is satisfied
that appointment of the guardian will be for the welfare of the minor, it appoints one. But the
person appointed should come under any of the four categories mentioned in the section 8 of
the act. These four categories are:

1. Any person desirous of being guardian of the minor.

2. Any relative or friend of the minor.
3. The collector of the district within whose jurisdiction the minor resides or in which he
has property.
4. The collector having authority with respect to the class to which the minor belongs.

The foreign parents desirous of making the adoption of an Indian child should make an
application to the court for being appointed guardian of the person and property of the child
whom he wishes to take in adoption and on being appointed the guardian, for leave of the
court to take the child with him to his country for taking it in adoption. As because most of
the children sought to be adopted are destitute and orphans, notice under section 11 of the act
has no specific meaning. In their case there is no agency, which can look into the question
whether the proposed adoption will be in their welfare, or not. Thus, the Delhi High Court
rules provide that, a notice should be sent to Indian Council of Child Welfare whereas the
Bombay and Gujarat High Court rules provides for notice being sent to Indian Council for
Social Welfare. Every child welfare agency is required to get license. They are also required
to maintain a register in which the names and particulars of all the children proposed to be
given in Inter-Country adoption through it should be kept. The child welfare agency
processing the adoption must place sufficient material before the court to satisfy that the child
is legally available for adoption. It is imperative that the application for adoption of an Indian
child by a foreigner should be sponsored by a social or child welfare agency recognized and
licensed by the government of the country in which the foreigner is a resident. There are three
reasons for this, which follow as under:

 It will reduce the possibility of profiteering and trafficking in children.

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 The court won't be able to satisfy itself about the eligibility of the parents unless it is
sponsored by the agency of the country in which the foreigner resides.
 In case, adoption is made without the intervention of any agency, there would be no
authority or agency, which could be made responsible for supervising the growth of
the child.

These agencies are required to submit a Home Study Report that includes amongst others the
following, source of referral, schooling facilities, current relationship between husband and
wife etc. Along with this report the agency is also required to send a photograph of the family
and a declaration stating that the family is willing to adopt the child in accordance with the
law prevailing in their country. In case, child's biological parents exist, then they should be
properly assisted in making a decision about giving away the child in adoption to foreign
parents by the child welfare agency to which the child is surrendered for making arrangement
for its adoption. If the child is an orphan or destitute child then the agency must try to trace its
biological parents before giving in adoption. If the agency is a non-registered agency, then it
must contact a registered agency for giving in adoption. The district court is required to
dispose of all the application at the earlier but in no case later than two months from the date
of filing of an application. Section 17 of the Guardian and Wards Act, 1890 provides that in
appointing guardian of a minor, the court shall be guided by what, consistently with the law
to which the minor is subject, appears in the circumstances to be for the welfare of the minor
and in considering what will be for the welfare of the minor, the court shall have regard to the
age, sex and religion of the minor. The main function of the Council of Social Welfare or
Council for Social Welfare or any other recognized agency in the Inter-Country adoption is to
help the court in finding what is for the welfare of the people. For this purpose the council
prepares a report called 'Child Study Report'. This report contains legal and social data
regarding the child. The report should also contain an assessment of child's behavioural
pattern and its intellectual, emotional and physical development. It should also contain the
recent photograph of the child, information about original parents.

In the case of In re Rasiklal Chhaganlal Mehta,6 the Supreme Court of India held that when a
court is dealing with inter-country adoptions, it must bear in mind the principles incorporated
in the report of the European Expert Group on ICA organized jointly by the European Office
of the Technical Assistant Administration, United Nations and International Social Service,

6
AIR 1982 Guj. 193.
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before making an order in such a case. The Court must ensure in such proceedings that the
adoption is legally valid as per the laws of both the countries, that the adoptive parents fulfil
the requirement of the law of adoption of their country, that they have the requisite
permission to adopt, if required, from the appropriate authorities in their country, that the
child will be able to immigrate to the country of the adoptive parents and that he will be able
to obtain the nationality of the parents. If these facts are not established, what will result is
either an ‘abortive adoption’ having no validity in either country or a ‘limping adoption’, that
is to say an adoption recognized in one country but having no validity in another, leaving the
adopted child in a helpless condition. Such an unfortunate situation must, in any event, be
avoided.

In January 2011, India implemented new procedures to provide more centralized processing
of ICAs. In addition to the new guidelines, prospective adoptive parents should be aware of
all Indian laws that apply to ICA. A child can be legally placed with the prospective adoptive
parents under the Hindu Adoption and Maintenance Act of 1956, the Guardians and Wards
Act of 1890, or the Juvenile Justice (Care and Protection of Children) Act of 2000.
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INTERNATIONAL LEGISLATIVE FRAMEWORK

At global level, it is of course the Convention on the Rights of the Child (the “CRC”) that
now constitutes the basic standard-setting text on adoption. Inter-country adoption is
specifically regulated by the ‘1993 Hague Convention on the Protection of Children and
Cooperation in Respect of Inter-country Adoption’ (the HC), which has now been ratified by
about 90 States. The approach of international legislators to adoption changed at the end of
the 20th century as a result of serious concerns on adoption-related abuses that were being
increasingly expressed at that time.

CRC Article 21 includes the obligation to ensure that the child concerned in inter-country
adoption enjoys safeguards and standards equivalent to those existing in the case of
national adoption.

The CRC places major emphasis on the importance and role of the parents and family as the
child’s primary caregivers, and requires, first and foremost, States to assist them when they
have difficulty in fulfilling their responsibilities appropriately. Only when, despite such
efforts, the child is deprived of his or her family environment, or cannot be allowed to remain
therein in light of his or her best interests, does the obligation of the State to ensure
alternative care for the child becomes operative. And it is only when, in that case, the State is
unable to ensure that the child is placed in a foster or an adoptive family or is cared for in any
suitable manner in the child’s country of origin that inter-country adoption may be
considered.

The Committee on the Rights of the Child, which is the treaty body monitoring compliance
with the CRC, has expressed concerns over violations of inter-country adoption standards in
the case of many countries, and strongly recommends all States involved in inter-country
adoption that they ratify the Hague Convention as one means of addressing the problems.

The Hague Convention sets out to do two main things, both unequivocally directed towards
protecting the child from illicit practices related to inter-country adoption, rather than to
promoting the practice as such:

 To establish safeguards to ensure that inter-country adoption takes place in the best
interests of the child and with respect for his or her fundamental rights as recognized
in international law; and
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 To establish a system of cooperation among Contracting States to ensure that those

safeguards are respected and thereby prevent the abduction, the sale of, or traffic in
children.

In many ways, it is therefore an implementing treaty for the CRC as regards inter-country
adoption. Thus, as a private law instrument, it puts in place guarantees, procedures and
mechanisms that facilitate States’ compliance with, in particular, their obligations under the
relevant CRC provisions.

The system of cooperation established by the HC (Hague Convention) revolves around a

governmental Central Authority in each country to oversee adoptions and to serve as focal
point on inter-country adoption issues with its counterparts in other States. The treaty
foresees that adoption bodies, or agencies, duly accredited by the Central Authority in the
receiving country can carry out a range of tasks related to the adoption process, notably
regarding assistance to adoptive parents before, during and after the adoption takes place. If
also specifically authorized by the Central Authority in the country of origin, the adoption
body can also provide such assistance directly in that country.

The HC notably puts in place concrete application of the subsidiarity principle, setting out
procedures based on the fact that a child may be considered for inter-country adoption only if
possibilities for placement of the child within the State of origin have been given due
consideration. Other particularly important elements of the HC include the requirement to
determine the fitness of applicants to proceed with an adoption; the implicit prohibition of
non-regulated and private adoptions, since all prospective adopters are to undertake the
process through the Central Authority or an accredited agency; prohibition of contact
between prospective adoptive parents and the child’s parents or other caregiver/s before the
child has been pronounced adoptable and valid consents have been obtained; commitment to
ensuring free and informed consent for adoption with no inducement of any kind; and the
automatic recognition of Hague-compliant adoptions by all States Parties.
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CENTRAL ADOPTION RESOURCE AUTHORITY (CARA)

It is an autonomous body under the Ministry of Women and Child Development, Government
of India and is responsible for both in-country and inter-country adoptions in India. The
CARA Guidelines requires that every application from a foreigner wishing to adopt a child
must be sponsored by a social or child welfare agency recognized or licensed by the
government of the country in which the foreigner is resident. The agency should be
recognized by CARA. The CARA guidelines depict in the beginning that it encourages in
country adoption rather than inter-country adoption and only where the child finds no suitable
home in the country, trans-national adoption would be considered.

The guidelines also provide that all Child Care Institutions (CCI) must be registered under the
provisions laid down under the Juvenile Justice (Care and Protection of Children)
Amendment Act, 2006 as per Section-34 (3).The State Government shall recognize suitable
CCI’s as specialized adoption agencies under Section 41(4) of the Juvenile Justice
Amendment Act, 2006. The specialized adoption agencies can turn into agencies for inter-
country adoption only when they have proper infrastructure for normal adoptable children as
well as children with special needs, and have quality child care services. In addition to these,
they must comply with all the requirements of CARA.

Also, as per CARA guidelines and the Juvenile Justice (Care and Protection) Amendment Act
2006, only three types of children are recognized as adoptable. These include children who
are orphans and are already under the care of some specialized adoption agency, abandoned
and those who are surrendered. In case of an abandoned child below two years, such
declaration shall be done within a period of sixty days from the time the child is found. For
an abandoned child above two years of age, such a declaration shall be done within the period
of four months. In case of a surrendered child, two months reconsideration time shall be
given to the biological parent or parents after surrender before declaring the child legally free
for adoption.
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GUIDELINES GOVERNING ADOPTION OF CHILDREN, 2015

The 2015 Guidelines have been issued by the Central Adoption Resource Authority (CARA).
These guidelines would replace the 2011 Adoption Guidelines. The revised guidelines have
been framed keeping in mind the issues and challenges faced by CARA, Adoption Agencies
and Prospective Adoptive Parents (PAPs). These Guidelines are intended to provide for more
effective regulation for adoption of orphan, abandoned and surrendered children and would
bring more transparency and efficiency in the adoption system. With the new guidelines, it
would become possible for PAPs to track the status of their application making the entire
system more user-friendly.

Salient features of the Guidelines Governing Adoption of Children, 2015:

 Clear and transparent procedure for registration of resident Indians and provision for
uploading required documents online.
 PAPs have an option to select an adoption agency of their choice for conducting Home
Study Report (HSR) and preferred State also.
 Home study Report of PAPs can be prepared by SARA/DCPU empanelled social worker.
 Seniority of PAPs would be maintained from the date of registration.
 The maximum combined age for married couple has been increased from 105 years to
110 years to encourage adoption of older children.
 Minimum 25 years age gap between the child and adoptive parents has been prescribed.
 More clarity in adoption of special needs children, older children and siblings. Older
children and siblings would no more be considered as special needs children.
 All Specialised Adoption Agencies (SAAs) would be authorised to do In-country & Inter-
country adoption.
 Inter-state adoptions made simpler to boost adoptions within the country; no permission
of State Adoption Resource Agency (SARA) is required for domestic adoption from
another State.
 NRIs would be treated at par with resident Indians in terms of priority regarding referral
of a child.
 Greater clarity in the process and documentation for OCI and Foreign PAPs living in
India.
 Adoption expenses for different category of PAPs prescribed.
 CONFLICT OF LAWS 20

 Authorised Foreign Adoption Agency (AFAA) would have a provision of renewal after a
period of five years.
 All adoptions (in-country or inter-country) to proceed on CARINGS, adoption outside
CARINGS are strictly prohibited.
 CONFLICT OF LAWS 21

CONCLUSION

It is a common situation in India that the judges dealing with adoption cases, especially in
small towns and cities in India, are not predominantly acquainted with the interpretation of
the inter-country adoption guidelines. Hence, in this regard, a uniform but stringent procedure
must be developed which can be easily followed and observed keeping in regard the human
spirit. As has been seen, Courts, though slowly and steadily, are approaching every possible
dimension of this issue and are laying down norms for eliminating any legal or emotional
havoc for the child or his biological and adoptive parents.

Unless agencies systematically refuse to operate in the framework of systems that are in clear
violation of international norms, they may find themselves complicit in abuses. If prospective
adopters do not receive accurate and dispassionate information on inter-country adoption
needs, they will not be able to adjust their plans and expectations accordingly.

The future of inter-country adoption will be determined by the perceptions of its success held
by officials and the public in the children's countries of origin. Safeguards contained in the
Hague Convention on Inter-country Adoption, a multilateral treaty of cooperation and
controls now being considered for ratification by countries around the world (including the
U.S.), will help reassure all parties that the rights of the children and birth parents in an inter-
country adoption are respected. The Convention should put to rest some of the fears (that the
children are being used as organ donors, for example) that make the process unstable and
deny the love of a permanent family to children who could benefit from adoption. Keeping in
mind the large-scale child trafficking in the world, The Rights of the Child, 1989 convention
requires that Inter-Country adoption will receive only the last priority while searching for the
foster home. Like any other types of adoption, Inter-Country adoption can be expensive,
time-consuming and uncertain. If the challenges involved in inter-country adoption can be
taken care of, then Inter-Country adoption will give thousands of families’ joy and
satisfaction as it has already fulfilled dreams of many.
 CONFLICT OF LAWS 22

BIBLIOGRAPHY

BOOKS and ARTICLES:

 Atul M. Setalvad, Conflict of laws, Lexis Nexis Buttorworths wadhwa, Nagpur, 2005.
 David McClean and Kisch Beevers, The Conflict of Laws, Thomson, Sweet and
Maxwell, 2005.
 153rd Report on Inter-country Adoption, Law Commission of India.
 Guidelines for Adoption from India, 2006, Central Adoption Resource Authority.
 A.S. Shenoy, Child Adoption Policies in India- A Review, Chair of the International
Relations Committee, Indian Council of Social Welfare, Mumbai.

WEBSITES:

 https://www.slideshare.net/SatyaRanjanSwain/inter-country-adoption
 https://www.lawctopus.com/academike/inter-country-adoption/
 https://www.lawteacher.net/free-law-essays/family-law/an-analysis-of-inter-country-
law-essays.php
 http://cara.nic.in/InnerContent.aspx?Id=163#
 https://www.lawctopus.com/academike/inter-country-adoption/