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Issues related to Inter-country adoption

Authored by Sulakshana Pawar

Keywords: Adoption laws, Inter-country regulations, Foreign Adoptive Parents


International adoption over the past decades a child-centers become a global phenomenon involving adoption over cross border movement of poor or underdeveloped countries to wealthier countries. International adoption faces many debates regarding for and against regarding this topic. At times, it can also be seen that children are the ultimate form of trafficking and their exploitation can be seen. But a lot of times their adoptions are successful and they live a good life ahead. This article highlights international adoption, its impact, development of adopted children, and their needs.


Adoption means protection to orphans or abandoned children and helps them to be a part of the family. Mostly adoption was an in-country phenomenon but now it is seen that international dimensions are also taken into consideration. Intercountry adoption involves adopting a child from another country where the nationality of parents and children is different. International adoption is seen mostly in the last 20th century. There is a difference in adopting children from different nationalities as the habits and other such things are different. Hence in successive years countries are deciding whether to allow child adoption from abroad.

History of adoption:

The inter-country adoption concept emerged after the cold war era. Families belonging from Canada, Europe, Australia adopted orphans like Greece, Italy, Germany, and children from Asian countries like Japan and China.

In 1960 seminar was organized in Leysin, Switzerland regarding the inter-country adoption which formulated some principles. Further, a world conference was held in Milan, Italy regarding adoption and foster care in 1971 which enlighted on international regulation to safeguard the adopted children’s interest[1].

The Brighten Guidelines of 1982 and the Hong Kong Conference of 1996 revised and endorsed these guidelines. The notable efforts in this regard were the Hague Convention of 1993 in respect of inter-country adoption ensuring the protection of children's rights[2]. Similarly, the provision of the United Nations Convention on the Rights of Child, 1989 also followed when considering domestic and international or inter-country adoption for a child[3].

According to available information by October 2002, the guidelines on inter-country adoption laid down in the Hague Convention have been ratified by 38 States including Russia and China. It is expected that more countries may adopt the guidelines and become a party to the Convention.

Provisions for ICA in India

In India, adoption has been an age-old practice and performs a really important function in society. Within the Smritis literature, the law of adoption was parent based and not child based. The Smrtikaras suggested that just one son might be adopted for the continuation of the family and to supply oblations to the deceased ancestors. The Dharma sastras deals intimately with the qualifications of the son to be taken in adoption. The adopted son is uprooted from his natural family and transplanted into an adoptive family sort of a natural son. But at the present, the law of adoption among Hindus is regulated by the Hindu Adoption and Maintenance Act of 1956.

However, ICA could also be a novice concept in India and is yet to understand much ground. The Supreme Court of India, while supporting ICA, within the case of Laxmikant Pandey v. Union of India[4] laid down certain guiding principles that were to be followed within the cases of ICA. It has been held necessary in touch in mind that the first object of giving the kid in adoption being the welfare of the people, care has got to be exercised in permitting the kid to tend in adoption to foreign parents, lest the kid could also be neglected or abandoned by the adoptive parents within the foreign country or the adoptive parents might not be ready to provide the kid life of moral and material security, or the kid could also be subjected to moral and sexual assault or forced labor or experimentation for medical or other research and should be placed in a worse situation than that in his own country.

The apex court further went on to get down certain prerequisites for foreign adoption. Within the first place, every application from a foreigner means to adopt a toddler must be sponsored by social or child welfare agency recognized or licensed by the government of the country during which the foreigner may be a resident. No application by a foreigner for taking a toddler in adoption should be entertained directly by any welfare agency in India working within the area of ICA or by any institution or center or home to which children are committed by the court.

The Supreme Court also insisted upon the age within which a toddler should be adopted just in case of ICA, and held that if a toddler is to tend in ICA, it would be desirable that it is given in such adoption before it completes the age of three years. Such a ruling was delivered by the Supreme Court because it felt if a toddler is adopted by a far-off parent before he or she attains the age of 3, he or she has more chances of assimilating to the new environment and culture.

Criteria for Foreign Prospective Adoptive Parent/s (FPAP)

• Married couple with 5 years of a stable relationship, age, financial and health status with reasonable income to support the kid should be evident within the Home Study Report.

• Prospective adoptive parents having composite age of 90 years or less can adopt infants and young children. These provisions even be suitably relaxed in exceptional cases, like older children and kids with special needs, for reasons clearly stated in the Course Report. However, in no case, should the age of anybody of the potential adoptive parents exceed 55 years.

• Single persons (never married, widowed, divorced) up to 45 years also can adopt.

• Age difference of the only adopter and child should be 21 years or more.

• A FPAP in no case should be but 30 years and quite 55 years

. • A second adoption from India is going to be considered only the legal adoption of the primary child is completed.

• Same-sex couples aren’t eligible to adopt.

Emerging Issues

Inter-country adoption has now become a longtime phenomenon in our country. Since the Hon Tale Supreme Court delivered its judgment in 1984, some settled procedures have continued to be followed for regularizing such adoption. The center in this context has shifted from parent-centered to child-centered adoption. Despite all absolute efforts in finding suitable parents the process of adoption sometime gets delayed due to several reasons. The emerging issues facing the adoption professional are associated with both the practice of adoption and the law of adoption in India.

The expeditious processing of inter-country adoption cases through the juvenile justice system just in case of abandoned children consume a long time thanks to precise investigating procedures adopted for the clearing the kid legally free for adoption. The deleting procedure being adopted for, obtaining a certificate of such children also adds to the magnitude of the matter. The rules of CARA framed in pursuance of Apex Court's judgment are significant. However, the rules cannot be a substitute for legislation which should cover all aspects of the in-country and inter-country adoptions.

Therefore, the necessity for a consistent adoption law in India cannot be overemphasized. The law once enacted can incorporate all aspect of the topic including the role of various recognized agencies which may be associated during this work. The Hindu Adoption and Maintenance Act, 1956 is simply a half-hearted effort and touches just one segment of the entire population which too with none application to inter-country adoption. Similarly, the Guardian and Wards Act, 1890 which has been pressed into service during this area has needs uniform legislation that must be made applicable to all or any Indian and also should cover all adoption matters. Article 44 of the Constitution of India gives ample powers and authority to the Parliament to enact such a law having general application. Once such legislation came into being the prevailing legislation is often repealed because the new law which can be secular will have a consistent application[5].


Policymakers got to link their new adoption reform moves with efforts to enhance conditions for the youngsters who won’t be adopted, and for his or her birth parents. Opponents of international adoption are correct in arguing that it can never provide homes for all the youngsters in need, and we must address the problems of poverty and injustice that end in children being abandoned in large numbers within the poor countries of the planet. Keeping in mind the massively scaled child trafficking within the world, the Rights of the kid, 1989 convention requires that ICA will receive only the last priority while checking out the family. Like all sorts of adoption, ICA is often expensive, time-consuming, and unsure. Hence, not only statutory but also moral upliftment should be instilled among the people of the international village, with special importance on the worth of youngsters. If the challenges involved in ICA are often taken care of, then ICA will give thousands of families’ joy and satisfaction, because it has already fulfilled dreams of the many.

Foot notes: [1] Quoted in Innocent Digest - A UNICEF Publication, (1988), p. 2. [2] The Hague Convention was adopted on 29th May 1993 and came into force on 1st May 1995. Over 60 countries and 10 international NGOs participated. For further details see Id. p. 5.

[3] Id. Arts. 20, 21, and 25. [4]A.I.R. 1984 S.C. 469. [5]