Abstract 

This article has been written by Ms. Sonali Das, a 3rd -year student of  Army Institute of Law Mohali.

A child is more than simply a person, they are a great asset to a country with the ability to shine brightly like an uncut diamond. However, finding a loving and caring home via adoption is one of the most difficult obstacles a kid faces. Finding a good family for a youngster who does not have one of their own is critical. This, however, is not always an easy process. Adoption necessitates a willing and capable individual to accept the responsibility of being a parent. The Supreme Court addressed this issue in the well-known case of Lakshmi Kant Pandey v. Union of India, ruling that if there are no eligible families inside the country, foreign adoption may be a possibility. Adoption has sadly grown prone to many unethical methods in a quickly expanding culture, frequently resulting in severe effects such as human trafficking. This article dives into the challenging elements of intercountry adoption, such as identity issues, financial difficulties, health problems, discomfort with physical differences, and a lack of knowledge to help manage these challenges. 

Introduction 

Adoption entails permanently taking away the adopted kid from their birth parents or any other people or location who may give them up for adoption. The kid becomes the legal child of their adopted parents as a result of this procedure, receiving all of the rights, benefits, and obligations that come with being a member of that family. This is known as the act of affiliation because it establishes a legal tie of fatherhood between persons who are not biologically related. 

As shown in numerous rulings and with the adoption of the UN Declaration of the Rights of the Child in 1989 and the Hague Convention on Inter-Country Adoption in 1933, both the Supreme Court and the United Nations have underlined the necessity of providing a family for every child. It is understood that a child’s best interests cannot be satisfied in the absence of parental love and Support. Finally, the most critical requirement for a child’s optimal growth and well-being is to establish a loving family. Adoption may be divided into types: 

1. Adoption Inside a Country (Intra Country Adoption).
2. International Adoption (Inter-Country Adoption).

In- Country Adoption, also known as Intra- Country Adoption 

It is a legal procedure in which a child is placed for adoption inside the nation in which they were born. It guarantees that the child is nurtured by a family who is proud of their cultural and national heritage. A kid born in India, for example, may only be adopted by Indian parents who live in India. However, separate regulations exist in Hindu law for the adoption of Hindu children by Hindu parents. It should be noted that these regulations only apply to Hindus. And they do not preclude those of other religious views from adopting. 

Inter-Country Adoption 

Inter-country Adoption is the legal procedure by which a person from one country welcomes a kid into their own family, putting rights and duties on them as if they were their biological child. Adoption, according to Black’s Law Dictionary, establishes a civil tie and kinship between two people. 

Intercountry adoptions, or ICA, refers to the adoption of a child from one country by a person from another nation. International child adoption, in which children are relocated from one country to another to be parented, is regarded as a more severe sort of adoption than adoption by a family member. This is known as “stranger” adoption, as opposed to “relative” adoption, which occurs when a stepparent adopts their spouse’s kid or a member of the child’s extended biological family assumes parental responsibility when the child’s parents are unable or unable to do so. Because children remain within their familiar biological family network, the majority of adoptions are considered unproblematic, and adoptive parents are frequently viewed as altruistic and caring for willingly taking on the care and raising of these children. 

Adoptions Across Borders In India 

As seen by its participation in the CRC and the Hague Convention, India has made important efforts to ensure children’s rights through intercountry adoption. To govern adoption processes, legislation such as the Hindu Adoption and Maintenance Act of 1956 (HAMA) and the Juvenile Justice ( Care and Protection of Children ) Act of 2000 (JJ Act) have been enacted. 

To guarantee that adopted children have the same rights as other children, the JJ Act was revised in 2006, 2010, and most recently in 2015, by the principles of the Hague Convention. Furthermore, the 2006 Amendment includes a definition of adoption, which was a significant advance because the Guardians and Wards Act, of 1890, had previously been the guiding law for non- Hindu adoptions. 

The question of whether intercountry adoption is valid was first raised in the widely publicized case of Re Rasiklal Chhaganlal Mehta, in which the court ruled that adoptions under Section 9 (4) of the Hindu Adoptions and Maintenance Act, 1956 must be recognized as legally valid in both the originating and adopting Countries. 

By creating the Central Adoption Resource Agency (CARA) in 1989, the Indian government made a proactive move towards enabling intercountry adoption. The Adoption Regulations of 2017 went into force on January 16th, 2017, following the authorization provided by clause (c) of Section 68 and clause (3) of Section 2 of the JJ Act 2015. 

The court decision in Craig Allen Coates v. State through the Indian Council for Child Welfare and Welfare Home for Children underlines that adoptive parents must have good grounds and genuine intentions for adopting a child from another nation. Failure to do so would result in the adoption being denied. 

The Bombay High Court held in the matter of Varsgha Sanjay Shinde& Anr. v. Society of Friends of the Sassoon Hospital and others that if a kid has been formally picked by an Overseas couple following correct processes, they cannot be given to other Indian Parent. This means that Indian parents cannot claim such unique rights or benefits in adopting the kid just because they are Indian. In such circumstances, the court highlighted that precedence should be given to Overseas Indian and Foreign Couples. 

Inter-Country Adoptions Challenges- 

Inter-country adoptions face various challenges that must be overcome to properly build a family via adoption. 

• Post- Adoption Abuse and Neglect :

When a kid is placed for international adoption, post-adoption follow-ups become more difficult. Even CARA policies emphasize the need for Indian attentive chores, inter-country instruments, and professional social workers to protect a kid from malnutrition. It has only permitted some.

• Child Enslavement: 

Many people are terrified about the prospect of child enslavement in international adoption. Concern for the kid’s safety emerges once the paperwork is finished and international adoptive parents are permitted to take their new child home. The legal procedure of inter-country adoption must be monitored closely since it has allowed unscrupulous persons to take advantage of the system. Unfortunately, fraudulent documents are used to sell children outside their native nation for profit at the price of innocent lives.

• Household rules for adoption :

After a family adopts a kid, things might get even more complicated if the devisee dies and other family members contest the will. The matter will be handled by the laws of the nation in which the residence is located. Unfortunately, if the law does not accept the legality of adoption, the adopted kid may be deprived of any property left behind. Surprisingly, India has failed to establish any agreements or alliances to solve these specific legal issues. As a result, every adopted kid ultimately wants to know their genuine roots, and court disputes over their original family may leave them unsatisfied. 

• Financial Struggles and Difficulties: 

Financial difficulties can frequently drive biological parents or family members to abandon a child for financial gain or for the goal of obtaining better prospects for the kid’s future through adoption. The kid is permanently separated from their original family as a result of this decision since they are turned up to a completely foreign family with varied cultural, linguistic, and ethnic origins. As a result, the youngster may face several social and physiological challenges as they adjust to their new existence.

• Discomfort’s with one’s appearance: 

Many families confront the difficulty of their children being uncomfortable because of their physical appearance. According to one study, parents of interracially adopted white children experienced equal degrees of adjustment difficulties as parents of biological children. External influences, such as societal racism, were found to have a detrimental impact on the children’s well-being. 

• CARA’s Guidelines not being legally binding: 

CARA rules, while formed with noble intentions, lack the legal power required to be fully effective. This implies that non-members or nations who have withdrawn from the convention are not required to observe India’s directions or regulations. As a result, these children’s criteria fall short of ensuring the continuous well-being and safety of adopted children after they leave India. 

Key Advices 

Here are some key advice to bear in mind while thinking about international adoption, as it is a delicate subject that can lead to significant difficulties.

• Raising Awareness : 

Schools, Hospitals, and universities play an important role in teaching students and employees about racial inequities. This strategy has the potential to significantly minimize the issue of prejudice or bullying directed at children by neighbors, friends, employers, and others.

• Cultural Socialization: 

An important element of parenting is cultural socialization, which involves the communication and transmission of cultural values, beliefs, practices, and behaviors within the family. It has a tremendous impact on a child’s awareness and internalization of their identity and position in society, especially in a racially diverse setting. Adoption agencies and authorities must extensively analyze the suitability of the possible parent or individual to offer a supportive and culturally sensitive environment for the child to thrive in the event of transactional, racial, or cultural adoption. 

Conclusion 

Adopting a kid from another nation or through cross-border adoptions can provide orphaned youngsters with a fresh start. However, when the nation of origin of these children lacks enough legislation to safeguard them, rights are at risk of being infringed. As a result, this country must enact stricter inter-country adoption legislation and standards. Authorities are responsible for properly screening adoption agencies and ensuring that they adhere to the child’s well-being as stipulated in the constitution and the Juvenile Justice Care and Protection Act of 2015. Every child has the right to a safe life, a loving family, and education. As a result. Legislation should be created not just to encourage safe international adoptions, but also to protect the well-being of these children.

References

Books 

• Bryan A. Garner, Black’s Law Dictionary,  53 (Thomson Reuters, New Delhi 8th Edn, 2015).
• Juffer et al., 2005; Mason &Narad, 2005; Serbin, 1997; Weitzman & Albers, 2005.

Articles/Blogs 

• Introduction to Adoption, Child Welfare Information Gateway, available at https://www.childwelfare.gov/topics/adoption/intro/, last seen on 7/12/2023
• Intercountry Adoption: What Do I Need to Know? (pdf), Child Welfare Information Gateway, available at: https://www.childwelfare.gov/pubPDFs/factsheets_families_intercountry.pdf, last seen on 7/12/2023.
• Brief History of Adoption in the United States, Adoption Network, available at https://adoptionnetwork.com/history-of-adoption/, last seen on 7/12/2023.
• What You Need to Know About the History of Adoption, American Adoptions, available at https://www.americanadoptions.com/adoption/history-of-adoption, last seen on 7/12/2023.

Cases 

• Re Rasiklal Chhaganlal Mehta 7 AIR 1982 Guj 193.
• Laxmi Kant Pandey v. Union of India AIR1984 SC 469.
• Craig Allen Coates v. State through Indian Council for Child Welfare and Welfare Home for Children 162(2009) DLT 605.
• Varsha Sanjay Shinde & Anr. v. Society of Friends of the Sassoon Hospital and others 1 Writ Petition no. 9227 of 2013 Decided on 18th October 2013.

Reports 

• Hindu Adoptions and Maintenance Act, 1956.
• Hindu Marriage Act, 1955. 
• The Guardians and Wards Act.