Lakshmi Kant Pandey Vs. Union of India
[1984] INSC 25 (6 February 1984)
BHAGWATI, P.N.
BHAGWATI, P.N.
PATHAK, R.S.
SEN, AMARENDRA NATH (J)
CITATION: 1984 AIR 469 1984 SCR (2) 795 1984
SCC (2) 244 1984 SCALE (1)159
CITATOR INFO :
E 1987 SC 232 (4,5,8) RF 1990 SC1413 (14) RF
1990 SC1480 (52)
ACT:
Adoption of Children by
foreigner-International adoptions-Normative and Procedural safeguards to be
insisted upon so far as a foreigner wishing to take a child in adoption,
outlined-Constitution of India, 1950 Articles 15,24 and 39 and Guardian and
Wards Act (Act VIII of 1890), Sections 7 to 9 and 11.
HEADNOTE:
The petitioner, an advocate of the Supreme
Court addressed a letter in public interest to the Court, complaining of
malpractices indulged in by social organisation and voluntary agencies engaged
in the work of offering Indian Children in adoption to foreign parents, the
petitioner alleged that not only Indian Children of tender age are under the
guise of adoption "exposed to the 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 and Relief Houses, they
in course of time become beggars or prostitutes for want of proper care from
their alleged foster parents." The petitioner, accordingly, sought relief
restraining Indian based private agencies "from carrying out further
activity of routing children for adoption abroad" and directing the
Government of India, the Indian Council of Child Welfare and the Indian Council
of Social Welfare to carry out their obligations in the matter of adoption of
Indian Children by Foreign parents. Being a public interest litigation, the
letter was treated as a writ petition.
Disposing of the Writ Petition, after
indicating the principles and norms to be observed in giving a Child in
adoption to foreign parents, the Court
HELD: 1: 1. Every child has a right to love
and be loved and to grow up in an atmosphere of love and affection and of moral
and material security and this is possible only if the child is brought up in a
family. The most congenial environment would, of course, be that of the family
of his biological parents. But if for any reason it is not possible for the
biological parents or other near relative to look after the child or the child
is abandoned and it is either not possible to trace the parents or the parents
are not willing to take care of the child, the next best alternative would be
to find adoptive parents for the child so that the child can grow up under the
loving care and attention of the adoptive parents. The adoptive parents would
be the next best substitute for the biological parents. [813E-F] 1: 2. When the
parents of a child want to give it away in adoption or the child is abandoned
and it is considered necessary in the interest of the child 796 to give it in
adoption, every effort must be made first to find adoptive parents for it
within the country, because such adoption would steer clear of any problems of
assimilation of the child in the family of the adoptive parents which might
arise on account of cultural, racial or linguistic differences in case of
adoption of the child by foreign parents. If it is not possible to find
suitable adoptive parents for the child within the country, it may become
necessary to give the child in adoption to foreign parents rather than allow
the child to grow up in an orphanage or an institution where it will have no
family life and no love and affection of parents and quite often, in the
socioeconomic conditions prevailing in the country, it might have to lead the
life of a destitute, half clad, half-hungry and suffering from malnutrition and
illness. [8 4B-D] 2: 1. The primary object of giving the child in adoption
should be the welfare of the child. 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 to the child a life or moral or
material security or the child may be subjected to moral or sexual abuse or
forced labour or experimentation for medial or other research and may be placed
in a worse situation than that in his own country.
[815G-H; 816A] 2: 2. Since there is no
statutory enactment in our country providing for adoption of a child by foreign
parents or laying down the procedure which must be followed in such a case,
resort is had to the provisions of the Guardians and Wards Act 1890 for the
purpose of facilitating such adoption. [ 824G] 2: 3. The High Courts of Bombay,
Delhi and Gujarat have laid down by Rules and Instructions certain procedure
when a foreigner makes an application for adoption under the Guardian and Wards
Act including issuing of a notice to the Indian Council of Social Welfare and
other officially recognised social welfare agencies with a view to assist the
court in properly and carefully scrutinising the applications of the foreign
parents for determining whether it will be in the interest of the child and
promotive of its welfare, to be adopted by the foreign parents making the
application or in other words, whether such adoption will provide moral and
material security to the child with an opportunity to grow into the full
stature of its personality in an atmosphere of love and affection and warmth of
a family health and home. This Procedure is eminently desirable and it can help
considerably to reduce, if notice imitate, the possibility of the child being
adopted by unsuitable or undesirable parents or being placed in a family where
it may be neglected, maltreated or exploited by the adoptive parents. [828B-E]
Rasiklal Chaganlal Mehta's case A.I.R. 1982 Gujarat 193, approved.
3: 1. The requirements which should be
insisted upon so far as a foreigner wishing to take a child in adoption and the
procedure that should be followed for the purpose of ensuring that such
inter-country adoptions do not lead to abuse maltreatment or exploitation of
children and secure to them a healthy, decent family life are as under:
(1) Every application from a foreigner
desiring to adopt a child must be 797 sponsored by a social or child welfare
agency recognised or licensed by the government of the country in which the
foreigner is resident. No application by a foreigner for taking a child in
adoption should be entertained directly by any social or welfare agency of 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.
This is essential primarily for three
reasons. [831G-H] Firstly, it will help to reduce, if not eliminate altogether,
the possibility of profiteering and trafficking in children, because if a
foreigner were allowed to contact directly agencies or individuals in India for
the purpose of obtaining a child in adoption, he might, in his anxiety to
secure a child for adoption, be induced or persuaded to pay any unconscionable
or unreasonable amount which might be demanded by the agency to individual
procuring the child.
Secondly it would be almost impossible for
the court to satisfy itself that the foreigner who wishes to take the child in
adoption would be suitable as a parent for the child and whether he would be
able to provide a stable and secure family life to the child and would be able
to handler trans-racial, trans-cultural and trans-national problems likely to arise
from such adoption, because where the application for adopting a child has not
been sponsored by a social or child welfare agency in the country of the
foreigner, there would be no proper and satisfactory home study report on which
the court can rely. Thirdly, in such a case, where the application of a
foreigner for taking a child in adoption is made directly without the
intervention of a social or child welfare agency, there would be no authority
or agency in the country of the foreigner who could be made responsible for
supervising the progress of the child and ensuring that the child is adopted at
the earliest in accordance with law and grows up in an atmosphere of warmth and
affection with moral and material security assured to it. [832A-E] Every application
of a foreigner for taking a child in adoption must be accompanied by a home
study report and the social or child welfare agency sponsor in such application
should also send along with it a recent photograph of the family, a marriage
certificate of the foreigner and his or her spouse as also a declaration
concerning their health together with a certificate regarding their medical
fitness duly certified by a medical doctor, a declaration regarding their
financial status along with supporting documents including employer's
certificate where applicable, income- tax assessment orders, bank references
and particulars concerning the properties owned by them, and also a declaration
stating that they are willing to be appointed guardian of the child and an undertaking
that they would adopt the child according to the law of their country within a
period of not more than two years from time of arrival of the child in their
country and give intimation of such adoption to the court appointing them as
guardian as also to the social or child welfare agency in India process. sing
their case, and that they would maintain the child and provide it necessary
education and up-bringing according to their status and they would also 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. The application of the foreigner must
also be accompanied by a Power of Attorney in favour of an officer of the
social or child welfare agency in India which is requested to process the case
and such 798 Power of Attorney should authorize 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
foreigner must also certify that the foreigner seeking to adopt a child is
permitted to do so according to the law of his country. These certificates,
declarations and documents must accompany the application of the foreigner for
taking child in adoption, should be duly notarised by a Notary Public whose
signature should be duly attested either by an officer of the Ministry of
External Affairs or Justice or Social Welfare of the country of the foreigner
or by an officer of the Indian Embassy or High Commission or Consulate in that
country. The social or child welfare agency sponsoring the application of the
forefingers must also undertake while forwarding the application to the social
or child welfare agency in India, that it will ensure adoption of the child by
the foreigner according to the law of his country within a period not exceeding
two years and as soon as the adoption is affected, it will send two certified
copies of the adoption order to the social or child welfare agency in India
through which the application for guardianship is processed, so that one copy
can be filed in court and the other can remain with the social or child welfare
agency in India. The social or child welfare agency sponsoring the application
must also agree to send to the concerned social or child welfare agency in
India progress reports in regard to the child, quarterly during the first year
and half yearly for the subsequent year or years until the adoption is
effected, and it must also undertake that in case of disruption of the family
of the foreigner before adoption can be effected, it will take care of the
child and find a suitable alternative placement for it with the approval of the
concerned social or child welfare agency in India and report such alternative
placement to the court handling the guardianship proceedings and such
information shall be passed on both by the court as also by the concerned
social or child welfare agency in India to the Secretary, Ministry of Social
Welfare, Government of India. [833C-H; 834A-E] 3: 2. The Government of India
shall prepare a list of social or child welfare agencies licensed or recognised
for inter-country adoption by the Government of each foreign country where
children from India are taken in adoption and this list shall be prepared after
getting the necessary information from the government of each such foreign
country and the Indian Diplomatic Mission in that foreign country.
Such lists shall be supplied by the
Government of India to the various High Courts in India as also to the social
or child welfare agencies operation in India in the area of inter-country
adoption under licence or recognition from the Government of India. [834E F;
[835 B] 3: 3. If the biological parents are known, they should be helped to
understand all the implications of adoption including the possibility of
adoption by a foreigner and they should be told specifically that in case the
child is adopted, it would not be possible for them to have any further contact
with the child The biological parents should not be subjected to any duress in
making a decision about relinquishment and even after they have taken a decision
to relinquish the child for giving in adoption, a further period of about three
months should be allowed to them to reconsider their decision. But once the
decision is taken and not reconsidered within such further time as may be
allowed to them, it must be regarded as irrevocable and the procedure for 799
giving the child in adoption to a foreigner can then be initiated without any
further reference to the biological parents by filling an application for
appointment of the foreigner as guardian of the child. Thereafter there can be
no question of once again consulting the biological parents whether they wish
to give the child in adoption or they want to take it back. But in order to
eliminate any possibility of mischief and to make sure that the child has in
fact surrendered by its biological parents, it is necessary that the
Institution or Centre or home for Child Care or social or Child Welfare Agency
to which the child is surrendered by the biological parents, should take from
the biological parents a document of surrender duly signed by the biological
parents and attested by at least two responsible persons and such document of
surrender should not only contain the names of the biological parents and their
address but also information in regard to the birth of the child and its
background, health and development. If the biological parents state a
preference for the religious upbringing of the child, their wish should as far
as possible be respected, but ultimately the interest of the child alone should
be the sole guiding factor and 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. The biological parents should
not be induced or encouraged or even be permitted to take a decision in regard
to giving of a child in adoption before the birth of a child or within a period
of three months from the date of birth. This precaution is necessary because
the biological parents must have reasonable time after the birth of the child
to take a decision whether to rear up the child themselves or to relinquish it
for adoption and moreover it may be necessary to allow some time to the child
to overcome any health problems experienced after birth.
[835-H; 836A-D; 836G-H] 3: 4. It should not
be open to any and every agency or individual to process an application from a
foreigner for taking a child in adoption and such application should be
processed only through a social or child welfare agency licensed or recognised
by the Government of India or the Government of the State in which it is
operating. Since an application for appointment as guardian can be processed
only by a recognised social or child welfare agency and none else, any
unrecognised institution, centre or agency which has a child under its care
would have to approach a recognised social or child welfare agency if it
desires such child to be given in inter country adoption, and in that event it
must send without any undue delay the name and must send without any undue
delay the name and particulars of such child to the recognised social or child
welfare agency through which such child is proposed to be given in inter-
country adoption. The Indian Council of Social Welfare and the Indian Council
for Child Welfare are clearly two social or child welfare agencies operating at
the national level and recognised by the Government of India. But apart from
these two recognised social or child welfare agencies functioning at the
national level, there are other social or child welfare agencies engaged in
child care and welfare and if they have good standing and reputation and are
doing commendable work in the are of child care and welfare they should also be
recognised by the Government of India or the Government of the State for the
purpose of inter-country adoptions. But before taking a decision to recognise
any particular social or child welfare agency for the purpose of inter country
adoptions the Government of India or the Government of a State would do well to
examine whether the social or child welfare agency 800 has proper staff with
professional social work experience, because otherwise it may not be possible
for the social or child welfare agency to carry out satisfactorily the highly
responsible task of ensuring proper placement of a child with a foreign
adoptive family. The Government of India or the Government of a State
recognising any social or child welfare agency for inter-country adoptions must
insist as a condition of recognition that the social or child welfare agency
shall maintain proper accounts which shall be audited by a chartered accountant
at the end of every year and it shall not charge to the foreigner wishing to
adopt a child any amount in excess of that actually in cured by way of legal or
other expenses in connection with the application for appointment of guardian
including such reasonable remuneration or honorarium for the work done and
trouble taken in processing, filing and pursuing the application as may be
fixed by the Court. [837B-H; 838A-D] 3:5. Every recognised social or child
welfare agency must maintain a register in which the names and particulars of
all children proposed to be given in inter-country adoption through it must be
entered and in regard to each such child, the recognised social or child
welfare agency must prepare a child study report through a professional social
worker giving all relevant information in regard to the child so as to help the
foreigner to come to a decision whether or not to adopt the child and to
understand the child, if he decides to adopt it as also to assist the court in
coming to a decision whether it will be for the welfare of the child to be
given in adoption to the foreigner wishing to adopt it. The child study report
should contain as far as possible information in regard to the following
matters:- (1) Identifying information, supported where possible by documents.
(2) Information about original parents,
including their health and details of the mother's pregnancy and birth.
(3) Physical, intellectual and emotional
development.
(4) Health report prepared by a registered
medical practitioner preferably by a paediatrician.
(5) Recent photograph.
(6) Present environment-category of care (Own
home, foster home, institution etc.) relationships routines and habits.
(7) Social worker's assessment and reasons
for suggesting inter-country adoption. [838G-H; 839A- E] 3:6. The recognised
social or child welfare agency must insist upon approval of a specific known
child and once that approval is obtained the recognised social or child welfare
agency should immediately without any undue delay proceed to make an
application for appointment of the foreigner as guardian of the child. Such
application would have to be made in the court within whose jurisdiction the
child ordinarily resides and it must be accompanied by copies of the home study
report, the child study report and other certificates and documents forwarded
by the social or child welfare agency 801 sponsoring the application of the
foreigner for taking the child in adoption. It is also necessary that the
recognised social or child welfare agency through which an application of a
foreigner for taking a child in adoption is routed must before offering a child
in adoption, make sure that the child is free to be adopted. The recognised
social or child welfare agency must place sufficient material before the court
to satisfy it that the child is legally available for adoption. It is also
necessary that the recognised social or child welfare agency must satisfy
itself, firstly, that there is no impediment in the way of the child entering
the country of the prospective adoptive parent; secondly, that the travel
documents for the child can be obtained at the appropriate time and lastly, that
the law of the country of the prospective adoptive parent permits legal
adoption of the child and that on such legal adoption being concluded, the
child would acquire the same legal status and rights of inheritance as a
natural born child and would be granted citizenship in the country of adoption
and it should file alongwith the application for guardianship, a certificate
reciting such satisfaction. [841C-D; 842H; 843A-D] 3: 7. In cases where a child
relinquished by its biological parents or an orphan or destitute or abandoned
child is brought by an agency or individual from one State to another, there
should be no objection to a social or child welfare agency taking the child to
another State, even if the object be to give it in adoption, provided there are
sufficient safeguards to ensure that such social or child welfare agency does
not indulge in any malpractice. There should also be no difficulty to apply for
guardianship of the child in the court of the latter State. because the child
not having any permanent place of residence would then be ordinarily resident
in the place where it is in the care and custody of such agency or individual.
[843H; 844A-F] Section 11 of the Guardians and Wards Act, 1890 provides for
notice of the application to be issued to various persons including the parents
of the child if they are residing in any State to which the Act extends. But,
no notice under this section should be issued to the biological parents of the
child, since it would create considerable amount of embarrassment and hardship
if the biological parents were then to come forward and oppose the application
of the prospective adoptive parent for guardianship of the child. Moreover, the
biological parents would then come to know who is the person taking the child
in adoption and with this knowledge they would at any time be able to trace the
whereabouts of the child and they may try to contact the child resulting in
emotional and psychological disturbance for the child which might affect his
future happiness. For the same reasons, notice of the application for
guardianship should also not be published in any newspaper. If the court is
satisfied, after giving notice of the application to the Indian Council of
Child Welfare or the Indian Council for Social Welfare or any of its branches
for scrutiny of the application, that it will be for the welfare of the child
to be give in adoption to the foreigner making the application for
guardianship, it will only then make an order appointing the foreigner as
guardian of the child and permitting him to remove the child to his own country
with a view to eventual adoption. The Court will introduce the following
conditions in the order, namely: [846A-H; 848A-B] (i) That the foreigner who is
appointed guardian shall make proper 802 provision by way of deposit or bond or
otherwise to enable the child to be repatriated to India should it become
necessary for any reason. [847C] (ii) That the foreigner who is appointed
guardian shall submit to the court as also to the Social or Child Welfare
Agency processing the application for guardianship, progress reports of the
child alone with a recent photograph quarterly during the first two years and
half yearly for the next three years. [847D] (iii) The order appointing
guardian shall carry, attached to it, a photograph of the child duly
counter-signed by an officer of the court. [817F] Where an order appointing
guardian of a child is made by the court, immediate intimation of the same
shall be given to the Ministry of Social Welfare, Government of India as also
to the Ministry of Social Welfare of the Government of the State in which the
court is situate and copies of such order shall also be forwarded to the two
respective Ministries of Social Welfare. The Ministry of Social Welfare,
Government of India shall maintain a register containing names and other
particulars of the children in respect of whom orders for appointment of
guardian have been made as also names, addresses and other particulars of the
prospective adoptive parents who have been appointed such guardians and who
have been permitted to take away the children for the purpose of adoption. The
Govt. of India will also sent to the Indian Embassy or High Commission in the
country of the prospective adoptive parents from time to time the names,
addresses and other particulars of such prospective adoptive parents together
with particulars of the children taken by them and requesting the Embassy or
High Commission to maintain and unobtrusive 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 and
instance of maltreatment, negligence or exploitation to the Government of India
for suitable action. [847G-H; 848A-C] 3:8. The social or child welfare agency
which is looking after the child selected by a prospective adoptive parent, may
legitimately receive from such prospective adoptive parent maintenance expenses
at a rate of not exceeding Rs. 60 per day (this outer limit being subjective to
revision by the Ministry of Social Welfare, Government of India from time to
time) from the date of selection of the child by him until the date the child
leaves for going to is new home as also medical expenses including
hospitalization charges, any, actually incurred by such social or child welfare
agency for the child. But the claim for payment of such maintenance charges and
medical expenses shall be submitted to the prospective adoptive parent.
[842C-D] 3:9. If a child is to be given in inter-country adoption, it would be
desirable that it is given in such adoption as far as possible before it
completes the age of 3 years. The reason is that if a child is adopted before
it attains the age of understanding, it is always easier for it to get
assimilated and integrated in the new environment in which it may find itself
on being adopted by a foreign parent. Children above the age of 3 years may
also be given in inter-country adoption. There can be no hard and fast rule in
this connection. Even children between the ages of 3 to 7 years may be able to
assimilate themselves in the new surroundings without any difficulty. Even
children 803 above the age of seven years may be given in inter-country
adoption but their wishes may be ascertained if they are in a position to
indicate any preference. [845D-G] 3:10. The proceedings on the Application for
guardianship should be held by the Court in camera and they should be regarded
as confidential and as soon as an order is made on the application for
guardianship the entire proceedings including the papers and documents should
be sealed. [841C-D] 3:11. The social or child welfare agency which is looking
after the child selected by a prospective adoptive parent, may legitimately
receive from such prospective adoptive parent maintenance expenses at a rate of
not exceeding Rs. 60 per day (this outer limit being subject to revision by the
Ministry of Social Welfare, Government of India from time to time) from the
date of selection of the child by him until the date the child leaves for going
to its new home as also medical expenses including hospitalisation charges, if
any, actually incurred by such social or child welfare agency for the child.
But the claim for payment of such maintenance charges and medical expenses
shall be submitted to the prospective adoptive parent through the recognised
social or child welfare agency which has processed the application for
guardianship and payment in respect of such claim shall not be received
directly by the social or child welfare agency making the claim but shall be
paid only through the recognised social or child welfare agency. However, a
foreigner may make voluntary donation to any social or child welfare agency but
no such donation from a prospective adoptive parents shall be received until
after the child has reached the country of its prospective adoptive parent.
[842C-G]
ORIGINAL JURISDICTION: Writ Petition (CRL)
No. 1171 of 1982.
Under article 32 of the Constitution of
India.
Petitioner in person.
Social Welfare.
Miss Kamini Jaiswal for Indian Council of
Social Welfare.
J.B. Dadachanji & Co. for Indian Council
of Child Welfare and Swedish Embassy.
Dr. N.M. Ghatate for all God's Children Inc.
Arizone, U.S.A.
P.H. Parekh for Maharashtra State Women's
Council of Child Welfare, Bombay and for Enfants de-L'espoir.
804 P.K. Chakeravorty for Legal Aid Service,
West Bengal.
Mrs. Manik Karanjawala for Indian
Associations for Promotion of Adoption.
Mrs Urmila Kapur for SOS Children's Village
of India.
Kailash Vasdev for Missionary of Charity,
Calcutta.
Baldev Raj Respondent in person.
G.M. Coelho Bar at Law for Enfant's du Mande
(France) Miss Rani Jethamalani for Kuanyin Charitable Trust.
B.M. Bageria for Terre Des Hommes (India)
Society.
Sukumar Ghose for Mission of Hope (India)
Society, Calcutta.
S.K. Mehta for Netherlands Inter Country
Child Welfare Oraganisation.
Parijot Sinha for society for International
Child Welfare.
Kailash Vasdev for Bhavishys.
The Judgment of the Court was delivered by
BHAGWATI, J. This writ petition has been initiated on the basis of a letter
addressed by one Laxmi Kant Pandey, an advocate practising in this Court,
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 referred to a press report based on "empirical
investigation carried out by the staff of a reputed foreign magazine" called
"The Mail" and alleged that not only Indian children of tender age
are under the guise of adoption "exposed to the 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 and Relief
Homes, they in course of time become beggars or prostitutes for want of proper
care from their alleged foreign foster parents." The petitioner
accordingly sought relief restraining Indian based private agencies "from
carrying out further activity of routing children for adoption abroad" and
directing the Government of India, the Indian Council of Child Welfare and the
Indian Council of Social Welfare to carry out their obligations in the matter
of adoption of Indian children by foreign parents. This letter was treated as a
writ petition and by an Order dated 1st September, 1982 the Court issued notice
to the Union of India the Indian Council of Child Welfare and the Indian
Council of Social Welfare to appear in answer to the writ petition and assist
the Court in laying down principles and norms which should be followed in
determining whether a child should be allowed to be adopted by foreign parents
and if so, the procedure to be followed for that purpose, with the object of
ensuring the welfare of the child.
The Indian Council of Social Welfare was the
first to file its written submissions in response to the notice issued by the
Court and its written submission filed on 30th September, 1982 not only carried
considerable useful material bearing on the question of adoption of Indian
children by foreign parents but also contained various suggestions and
recommendations for consideration by the Court in formulating principles and
norms for permitting such adoptions and laying down the procedure for that
purpose. We shall have occasion to refer to this large material placed before
us as also to discuss the various suggestions and recommendations made in the
written submission by the Indian Council of Social Welfare when we take up for
consideration the various issues arising in the writ petition. Suffice it to
state for the present that the written submission of the Indian Council of
Social Welfare is a well thought out document dealing comprehensively with
various aspects of the problem in its manifold dimensions.
When the writ petition reached hearing before
the Court on 12th October, 1982 the only written submission filed was that the
Indian Council of Social Welfare and neither the Union of India nor the Indian
Council of Child Welfare had made any response to the notice issued by the
Court. But there was a telegram received from a Swedish Organisation called
`Barnen Framfoer Allt Adoptioner" intimating to the Court that this
Organisation desired to participate in the hearing of the writ petition and to
present proper material before the Court. S.O.S, Children's Villages of India
also appeared through their counsel Mrs. Urmila Kapoor and applied for being
allowed to intervene at the hearing of the writ petition so that they could
made their submissions on the question of adoption of Indian Children by
foreign parents. Since S.O.S, Children's Villages of India is admittedly an
organisation concerned with welfare of children, the Court, by an Order dated
12th October, 1982, allowed them to intervene and to make 806 their submissions
before the Court. The Court also by the same Order directed that the Registry
may address a communication to Barnen Framfoer Allt Adoptioner informing them
about the adjourned date of hearing of the writ petition and stating that if
they wished to present any material and make their submissions, they could do
so by filing an affidavit before the adjourned date of hearing.
The Court also directed the Union of India to
furnish before the next hearing of the writ petition the names of "any
Indian Institutions or Organisations other than the Indian Council of Social
Welfare and the Indian Council of Child Welfare, which are engaged or involved
in offering Indian children for adoption by foreign parents" and observed
that if the Union of India does not have this information, they should gather
the requisite information so far as it is possible for them to do so and to
make it available to the Court. The Court also issued a similar direction to
the Indian Council of Child Welfare, Indian Council of Social Welfare and
S.O.S. Children's Villages of India. There was also a further direction given
in the same Order to the Union of India, the Indian Council of Child Welfare,
the Indian Council of Social Welfare and the S.O.S. Children's Villages of
India "to supply to the Court information in regard to the names and
particulars of any foreign agencies which are engaged in the work of finding
Indian children for adoption for foreign parents". The writ petition was
adjourned to 9th November, 1982 for enabling the parties to carry out these
directions.
It appears that the Indian Council of Social
Welfare thereafter in compliance with the directions given by the Court, filed
copies of the Adoption of Children Bill, 1972 and the adoption of Children
Bill, 1980. The adoption of Children Bill, 1972 was introduced in the Rajya
Sabha sometime in 1972 but it was subsequently dropped, presumably because of
the opposition of the Muslims stemming from the fact that it was intended to
provide for a uniform law of adoption applicable to all communities including
the Muslims. It is a little difficult to appreciate why the Muslims should have
opposed this Bill which merely empowered a Muslim to adopt if he so wished; it
had no compulsive force requiring a Muslim to act contrary to his religious
tenets: it was merely an enabling legislation and if a Muslim felt that it was
contrary to his religion to adopt, he was free not to adopt. But in view of the
rather strong sentiments expressed by the members of the Muslim Community and
with a view not to offend their religious susceptibilities, the Adoption of
Children Bill, 1980 which was introduced in the Lok Sabha eight years later on
16th December, 1980, contained an express provision that it shall not be
applicable to Muslims. Apart from this change in its coverage the Adoption of
Children Bill, 1980 was substantially in the same terms as the Adoption of
Children Bill, 1972. The Adoption of Children Bill 1980 has unfortunately not
yet been enacted into law but it would be useful to notice some of the relevant
provisions of this Bill in so far as they indicate what principles and norms
the Central Government regarded as necessary to be observed for securing the
welfare of children sought to be given in adoption to foreign parents and what
procedural safeguards the Central Government thought, were essential for
securing this end. Clauses 23 and 24 of the Adoption of Children Bill, 1980
dealt with the problem of adoption of Indian children by parents domiciled
abroad and, in so far as material, they provided as follows:
"23 (1) Except under the authority of an
order under section 24, it shall not be lawful for any person to take or send
out of India a child who is a citizen of India to any place outside India with
a view to the adoption of the child by any person.
(2) Any person who takes or sends a child out
of India to any place outside India in contravention of sub-section (1) or
makes or takes part in any arrangements for transferring the care and custody
of a child to any person for that purpose shall be punishable with imprisonment
for a term which may extend to six months or with fine, or with both.
(24) (1) If 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
India either immediately or after an interval, the court may make an order (in
this section referred to as a provisional 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 808 unless it is accompanied by a certificate by the Central
Government to the effect that- (i) the applicant is in its opinion a fit person
to adopt the child;
(ii) the welfare and interests of the child
shall be safeguarded under the law of the country of domicile of the applicant;
(iii) the applicant has made proper provision
by way of deposit or bond or otherwise in accordance with the rules made under
this Act to enable the child to be repatriated to India, should it become
necessary for any reason.
(2) 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.
The other clauses of the Adoption of Children
Bill, 1980 were sought to be made applicable in relation to a provisional
adoption order by reason of sub-clause (3) of clause 24. The net effect of this
provision, if the Bill were enacted into law, would be that in view of clause
17 no institution or organisation can make any arrangement for the adoption of
an Indian child by foreign parents unless such institution or organisation is
licensed as a social welfare institution and under Clause 21, it would be
unlawful to make or to give to any person any payment or reward for or in
consideration of the grant by that person of any consent required in connection
with the adoption of a child or the transfer by that person of the care and
custody of such child with a view to its adoption or the making by that person of
any arrangements for such adoption. Moreover, in view of Clause 8, no
provisional adoption order can be made in respect of an Indian child except
with the consent of the parent or guardian of such child and if such child is
in the care of an institution, except with the consent of the institution given
on its behalf by all the persons entrusted with or in charge of its management,
but the District Court can dispense with such consent if it is satisfied that
the person whose consent is to be dispensed with has abandoned, neglected or
persistently ill-treated the child or has persistently failed without
reasonable cause to discharge his obligation as parent or guardian or can not
be found or is incapable of giving consent or is withholding consent unreasonably.
When a 809 provisional adoption order is made by the District Court on the
application of a person domiciled abroad, such person would be entitled to
obtain the care and custody of the child in respect of which the order is made
and to remove such child for the purpose of adopting it under the law or within
the country in which he is domiciled. These provisions in the Adoption of
Children Bill, 1980 will have to be borne in mind when we formulate the
guidelines which must be observed in permitting an Indian child to be given in
adoption to foreign parents. Besides filing copies of the Adoption of Children
Bill, 1972 and the Adoption of Children Bill, 1980 the Indian Council of Social
Welfare also filed two lists, one list giving names and particulars of
recognised agencies in foreign countries engaged in facilitating procurement of
children from other countries for adoption in their own respective countries
and the other list containing names and particulars of institutions and
organisations in India engaged in the work of offering and placing Indian
children for adoption by foreign parents.
The Writ Petition thereafter came up for
hearing on 9th November, 1982 when several applications were made by various
institutions and organisations for intervention at the hearing of the writ
petition. Since the questions arising in the writ petition were of national
importance, the Court thought that it would be desirable to have assistance
from whatever legitimate source it might come and accordingly, by an order dated
9th November, 1982, the Court granted permission to eight specified
institutions or organisations to file affidavits or statements placing relevant
material before the Court in regard to the question of adoption of Indian
children by foreign parents and directed that such affidavits or statements
should be filed on or before 27th November, 1982. The Court also issued notice
of the writ petition to the State of West Bengal directing it to file its
affidavit or statement on or before the same date. The Court also directed the
Superintendent of Tees Hazari courts to produce at the next hearing of the writ
petition quarterly reports in regard to the orders made under the Guardian and
Wards Act, 1890 entrusting care and custody of Indian children to foreign parents
during the period of five years immediately prior to 1st October, 1982.
Since the Union of India had not yet filed
its affidavit or statement setting out what was the attitude adopted by it in
regard to this question, the Court directed the Union of India to file its
affidavit or statement within the same time as the others. The Court then
adjourned the hearing of the writ petition to 1st December 1982 in order that
the record may be completed by that time.
810 Pursuant to these directions given by the
Court, various affidavits and statements were filed on behalf of the Indian
Council of Social Welfare, Enfants Du Monde, Missionaries of Charity, Enfants
De L's Espoir, Indian Association for promotion of Adoption Kuan-yin Charitable
Trust, Terre Des Homes (India) Society, Maharashtra State Women's Council,
Legal Aid Services West Bengal, SOS Children's Villages of India, Bhavishya
International Union for Child Welfare and the Union of India. These affidavits
and statements placed before the Court a wealth of material bearing upon the
question of adoption of Indian children by foreign parents and made valuable
suggestions and recommendations for the consideration of the Court. These
affidavits and statements were supplemented by elaborate oral arguments which
explored every facet of the question, involving not only legal but also
sociological considerations. We are indeed grateful to the various participants
in this inquiry and to their counsel for the very able assistance rendered by
them in helping us to formulate principles and norms which should be observed
in giving Indian children in adoption to foreign parents and the procedure that
should be followed for the purpose of ensuring that such inter-country
adoptions do not lead to abuse maltreatment or exploitation of children and
secure to them a healthy, decent family life.
It is obvious that in a civilized society the
importance of child welfare cannot be over-emphasized, because the welfare of
the entire community, its growth and development, depend on the health and
well-being of its children. Children are a "supremely important national
asset" and the future well being of the nation depends on how its children
grow and develop. The great poet Milton put it admirably when he said: "Child
shows the man as morning shows the day" and the Study Team on Social
Welfare said much to the same effect when it observed that "the physical
and mental health of the nation is determined largely by the manner in which it
is shaped in the early stages". The child is a soul with a being, a nature
and capacities of its own, who must be helped to find them, to grow into their
maturity, into fullness of physical and vital energy and the utmost breadth,
depth and height of its emotional, intellectual and spiritual being; otherwise
there cannot be a healthy growth of the nation. Now obviously children need
special protection because of their tender age and physique mental immaturity
and incapacity to look-after themselves.
That is why there is a growing realisation in
every part of the globe that children must be brought up in an atmosphere of
love and affection 811 and under the tender care and attention of parents so
that they may be able to attain full emotional, intellectual and spiritual
stability and maturity and acquire self-confidence and self-respect and a
balanced view of life with full appreciation and realisation of the role which
they have to play in the nation building process without which the nation
cannot develop and attain real prosperity because a large segment of the
society would then be left out of the developmental process. In India this
consciousness is reflected in the provisions enacted in the Constitution.
Clause (3) of Article 15 enables the State to
make special provisions inter alia for children and 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 citizens are not
forced by economic necessity to enter avocations unsuited to their age and
strength and that children are given facility to develop in a healthy manner
and in conditions of freedom and dignity and that childhood and youth are
protected against exploitation and against moral and material abandonment.
These constitutional provisions reflect the great anxiety of the constitution
makers to protect and safeguard the interest and welfare of children in the
country. The Government of India has also in pursuance of these constitutional
provisions evolved a National Policy for the Welfare of Children. This Policy
starts with a goal-oriented perambulatory introduction:
"The nation's children are a supremely
important asset. Their nurture and solicitude are our responsibility.
Children's programme should find a prominent part in our national plans for the
development of human resources, so that our children grow up to become robust citizens,
physically fit, mentally alert and morally healthy, endowed with the skills and
motivations needed by society. Equal opportunities for development to all
children during the period of growth should be our aim, for this would serve
our larger purpose of reducing inequality and ensuring social justice."
The National Policy sets out the measures which the Government of India
proposes to adopt towards attainment of the objectives set out in the
perambulatory introduction and they include measures designed to protect
children against neglect, cruelty and exploitation 812 and to strengthen family
ties "so that full potentialities of growth of children are realised
within the normal family neighbourhood and community environment." The
National Policy also lays down priority in programme formation and it gives
fairly high priority to maintenance, education and training of orphan and
destitute children. There is also provision made in the National Policy for
constitution of a National Children's Board and pursuant to this provision, the
Government of India has constituted the National Children's Board with the
Prime Minister as the chair person. It is the function of the National
Children's Board to provide a focus for planning and review and proper
coordination of the multiplicity of services striving to meet the needs of
children and to ensure at different levels continuous planning, review and
coordination of all the essential services. The National Policy also stresses
the vital role which the voluntary organisations have to play in the field of
education, health recreation and social welfare services for children and
declares that it shall be the endeavour of State to encourage and strengthen
such voluntary organisations.
There has been equally great concern for the
welfare of children at the international level culminating in the Declaration
of the Rights of the Child adopted by the General Assembly of the United
Nations on 20th November, 1959. The Declaration in its Preamble points out that
"the child, by reason of his physical and mental immaturity, needs special
safeguards and care, including appropriate legal protection, before as well as
after birth", and that "mankind owes to the child the best it has to
give" and proceeds to formulate several Principles of which the following
are material for our present purpose:
"PRINCIPLE 2: The child shall enjoy
special protection and shall be given opportunities and facilities by law and
by other means, to enable him to develop physically mentally morally, spiritually
and socially in a healthy and normal manner and in conditions of freedom and
dignity. In the enactment of laws for this purpose the best interests of the
child shall be the paramount consideration." PRINCIPLE 3: The child shall
be entitled from his birth to a name and a nationality.
PRINCIPLE 6: The Child, for the full and
harmonious development of his personality, needs love and under- 813 standing.
He shall, wherever possible, grow up in the care and under the responsibility
of his parents, and in any case in an atmosphere of affection and of moral and
material security; a child of tender years shall not, save in exceptional
circumstances, be separated from his mother. Society and the public authorities
shall have the duty to extend particular care to children without a family and
to those without adequate means of support. Payment of State and other
assistance towards the maintenance of children of large families is desirable.
PRINCIPLE 9: The child shall be protected
against all forms of neglect, cruelty and exploitation. He shall not be the
subject of traffic, in any form.
PRINCIPLE 10: The child shall be protected
from practices which may foster racial, religious and any other form of
discrimination. He shall be brought up in a spirit of understanding, tolerance
friendship among peoples, peace and universal brotherhood and in full
consciousness that his energy and talents should be devoted to the service of
his fellow men." Every child has a right to love and be loved and to grow
up in an atmosphere of love and affection and of moral and material security
and this is possible only if the child is brought up in a family. The most
congenial environment would, of course, be that of the family of his biological
parents. But if for any reason it is not possible for the biological parents or
other near relative to look after the child or the child is abandoned and it is
either not possible to trace the parents or the parents are not willing to take
care of the child, the next best alternative would be to find adoptive parents
for the child so that the child can grow up under the loving care and attention
of the adoptive parents. The adoptive parents would be the next best substitute
for the biological parents. The practice of adoption has been prevalent in
Hindu Society for centuries and it is recognised by Hindu Law, but in a large
number of other countries it is of comparatively recent origin while in the
muslim countries it is totally unknown. Amongst Hindus, it is not merely
ancient Hindu Law which recognises the practice of adoption but it has also
been legislatively recognised in the Hindu Adoption and Maintenance Act, 1956.
The Adoption of Children Bill 1972 sought to
provide for a uniform law of adoption applicable to all communities including
the muslims but, as pointed out above, it was dropped owing to the strong
opposition of the muslim community. The Adoption of Children Bill, 1980 is now
pending in Parliament and if enacted, it will provide a uniform law of adoption
applicable to all communities in India excluding the muslim community. Now when
the parents of a child want to give it away in adoption or the child is
abandoned and it is considered necessary in the interest of the child to give
it in adoption, every effort must be made first to find adoptive parents for it
within the country, because such adoption would steer clear of any problems of
assimilation of the child in the family of the adoptive parents which might
arise on account of cultural, racial or linguistic differences in case of
adoption of the child by foreign parents. If it is not possible to find
suitable adoptive parents for the child within the country, it may become
necessary to give the child in adoption to foreign parents rather than allow
the child to grow up in an orphanage or an institution where it will have no
family life and no love and affection of parents and quite often, in the
socioeconomic conditions prevailing in the country, it might have to lead the
life of a destitute, half clad, half-hungry and suffering from malnutrition and
illness. Paul Harrison a free-lance journalist working for several U.N.
Agencies including the International Year of the Child Secretariat points out
that most third world children suffer "because of their country's lack of
resources for development as well as pronounced inequalities in the way
available resources are distributed" and they face a situation of absolute
material deprivation. He proceeds to say that for quite a large number of
children in the rural areas, "poverty and lack of education of their
parents, combined with little or no access to essential services of health,
sanitation and education, prevent the realisation of their full human potential
making them more likely to grow up uneducated, unskilled and unproductive"
and their life is blighted by malnutrition, lack of health care and disease and
illness caused by starvation, impure water and poor sanitation. What Paul
Harrison has said about children of the third world applies to children in
India and if it is not possible to provide to them in India decent family life
where they can grow up under the loving care and attention of parents and enjoy
the basic necessities of life such as nutritive food, health care and education
and lead a 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. Such adoption would be quite
consistent with our National Policy on Children because it would 815 provide an
opportunity to children, otherwise destitute, neglected or abandoned, to lead a
healthy decent life, without privation and suffering arising from poverty,
ignorance, malnutrition and lack of sanitation and free from neglect and
exploitation, where they would be able to realise "full potential of
growth". But of course as we said above, every effort must be made first
to see if the child can be rehabilitated by adoption within the country and if
that is not possible, then only adoption by foreign parents, or as it is some
time called 'inter country adoption' should be acceptable. This principle stems
from the fact that inter country adoption may involve trans-racial,
trans-cultural and trans-national aspects which would not arise in case of
adoption' within the country and the first alternative should therefore always
be to find adoptive parents for the child within the country. In fact, the
Draft Guidelines of Procedures Concerning Inter-Country Adoption formulated at
the International Council of Social Welfare Regional Conference of Asia and
Western Pacific held in Bombay in 1981 and approved at the Workshop on Inter
Country Adoption held in Brighten, U.K. on 4th September, 1982, recognise the
validity of this principle in clause 3.1 which provides:
"Before any plans are considered for a
child to be adopted by a foreigner, the appropriate authority or agency shall
consider all alternatives for permanent family care within the child's own
country". Where, however, it is not possible to find placement for the
child in an adoptive family within the country, we do not see anything wrong
if: a home is provided to the child with an adoptive family in a foreign
country. The Government of India also in the affidavit filed on its behalf by
Miss B. Sennapati Programme Officer in the Ministry of Social Welfare seems to
approve of inter-country adoption for Indian children and the proceedings of
the Workshop on Inter Country Adoption held in Brighten, U.K. on 4th September,
1982 clearly show that the Joint Secretary, Ministry of Social Welfare who
represented the Government of India at the Workshop "affirmed support of
the Indian Government to the efforts of the international organisations in
promoting measures to protect welfare and interests of children who are adopted
aboard." But 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 child, 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 816 the foreign country or the adoptive
parents may not be able to provide to the child a life of moral or material
security or the child may be subjected to moral or sexual abuse or forced
labour or experimentation for medical or other research and may be placed in a
worse situation than that in his own country. The Economic and Social Council
as also the Commission for Social Development have therefore tried to evolve
social and legal principles for the protection and welfare of children given in
inter-country adoption. The Economic and Social Council by its Resolution 1925
LVIII requested the Secretary General of the United Nations to convene a group
of Experts with relevant experts with relevant experience of family and child
welfare with the following mandate:
"(a) To prepare a draft declaration of
social and legal principles relating to adoption and foster placement of
children nationally and internationally, and to review and appraise the
recommendations and guidelines incorporated in the report of the Secretary
General and the relevant material submitted by Governments already available to
the Secretary General and the regional commissions.
(b) To draft guidelines for the use of
Governments in the implementation of the above principles, as well as
suggestions for improving procedures within the context of their social
development-including family and child welfare-programmes." Pursuant to
this mandate an expert Group meeting was convened in Geneva in December, 1978
and this Expert Group adopted a "Draft declaration on social and legal
principles relating to the protection and welfare of children with special
reference of foster placement and adoption, nationally and
internationally". The Commission for Social Development considered the
draft Declaration at its 26th Session and expressed agreement with its contents
and the Economic and Social Council approved the draft Declaration and
requested the General Assembly to consider it in a suitable manner. None of the
parties appearing could give us information whether any action has been taken
by the General Assembly. But the draft Declaration is a very important document
in as much it lays down certain social and legal principles which must be
observed in case of inter-country adoption. Some of the relevant principles set
out 817 in the draft Declaration may be referred to with advantage:
"Art. 2. It is recognised that the best
child welfare is good family welfare.
4. When biological family care is unavailable
or in appropriate, substitute family care should be considered.
7. Every child has a right to a family.
Children who cannot remain in their biological family should be placed in
foster family or adoption in preference to institutions, unless the child's
particular needs can best be met in a specialized facility.
8. Children for whom institutional care was
formerly regarded as the only option should be placed with families, both
foster and adoptive.
12. The primary purpose of adoption is to
provide a permanent family for a child who cannot be cared for by his/her
biological family.
14. In considering possible adoption
placements, those responsible for the child should select the most appropriate
environment for the particular child concerned.
15. Sufficient time and adequate counselling
should be given to the biological parents to enable them to reach a decision on
their child's future, recognizing that it is in the child's best interest to
reach this decision as early as possible.
16. Legislation and services should ensure
that the child becomes an integral part of the adoptive family.
17. The need of adult adoptees to know about
their background should be recognized.
19. Governments should determine the adequacy
of their national services for children, and recognize those children whose
needs are not being met by existing services. For some of these children,
inter- country adoption may be considered as a suitable means of providing them
with a oily.
21. In each country, placements should be
made 818 through authorized agencies competent to deal with inter country
adoption services and providing the same safeguards and standards as are
applied in national adoptions.
22. Proxy adoptions are not acceptable, in
consideration of the child's legal and social safety.
23. No adoption plan should be considered
before it has been established that the child is legally free for adoption and
the pertinent documents necessary to complete the adoption are available. All
necessary consents must be in a form which is legally valid in both countries.
It must be definitely established that the child will be able to immigrate into
the country of the prospective adopters and can subsequently obtain their
nationality.
24. In inter-country adoptions, legal
validation of the adoption should be assured in the countries involved.
25. The child should at all times have a
name, nationality and legal guardian." Thereafter at the Regional
Conference of Asia and Western Pacific held by the International Council on
Social Welfare in Bombay in 1981, draft guidelines of procedure concerning
inter-country adoption were formulated and, as pointed out above, they were
approved at the Workshop held in Brighton, U.K. on 4th September, 1982. These
guidelines were based on the Draft Declaration and they are extremely relevant
as they reflect the almost unanimous thinking of participants from various
countries who took part in the Regional Conference in Bombay and in the
Workshop in Brighton, U.K.
There are quite a few of these guidelines
which are important and which deserve serious consideration by us:
"1.4. In all inter-country adoption
arrangements, the welfare of the child shall be prime consideration.
Biological Parents:
2.2. When the biological parents are known
they shall be offered social work services by professionally qualified workers
(or experienced personnel who are supervised by such qualified workers) before
and after the birth of the child.
819 2.3. These services shall assist the
parents to consider all the alternatives for the child's future.
Parents shall not be subject to any duress in
making a decision about adoption. No commitment to an adoption plan shall be
permitted before the birth of the child.
After allowing parents a reasonable time to
reconsider any decision to relinquish a child for adoption, the decision should
become irrevocable.
2.5. If the parents decide to relinquish the
child for adoption, they shall be helped to understand all the implications,
including the possibility of adoption by foreigners and of no further contact
with the child.
2.6. Parents should be encouraged, where
possible, to provide information about the child's background and development,
and their own health.
2.8. It is the responsibility of the
appropriate authority or agency to ensure that when the parents relinquish a
child for adoption all of the legal requirements are met.
2.9. If the parents state a preference for
the religious up-bringing of the child, these wishes shall be respected as far
as possible, but the best interest of the child will be the paramount
consideration.
2.10. If the parents are not known, the
appropriate authority or agency, in whose care the child has been placed, shall
endeavour to trace the parents and ensure that the above services are provided,
before taking any action in relation to adoption of the child.
The Child:
3.1. Before any plans are considered for a
child to be adopted by foreigners, the appropriate authority or agency shall
consider all alternatives for permanent family care within the child's own
country.
3.2. A child-study report shall be prepared
by professional workers (or experienced personnel who are supervised by such
qualified workers) of an appropriate authority or agency, to provide
information which will form a basis for the selection of prospective adopters
for the child, 820 assist with the child's need to know about his original
family at the appropriate time, and help the adoptive parents understand the
child and have relevant information about him/her.
3.3 As far as possible, the child-study
report shall include the following:
3.3.1. Identifying information, supported
where possible by documents.
3.3.2. Information about original parents,
including their health and details of the mother's pregnancy and the birth.
3.3.3. Physical, intellectual and emotional
development.
3.3.4. Health report.
3.3.5. Recent photograph.
3.3.6. Present environment-category of care
(Own home, foster home, institution, etc.) relationships, routines and habits.
3.3.7. Social Worker's assessment and reasons
for suggesting inter-country adoption.
3.4. Brothers and sisters and other children
who have been cared for as siblings should not be separated by adoption
placement except for special reasons.
3.5. When a decision about an adoption
placement is finalised, adequate time and effort shall be given to preparation
of the child in a manner appropriate to his/her age and level of development.
Information about the child's new country and new home, and counseling shall be
provided by a skilled worker.
3.5. (a) Before any adoption placement is
finalized the child concerned shall be consulted in a manner appropriate to
his/her age and level of development.
3.6. When older children are placed for adoption,
the adoptive parents should be encouraged to come to the child's country of
origin, to meet him/her there, learn 821 personally about his/her first
environment and escort the child to its new home.
Adoptive Parents:
4.3. In addition to the usual capacity for
adoptive, parenthood applicants need to have the capacity to handle the
trans-racial, trans-cultural and trans-national aspects of inter-country
adoptions.
4.4. A family study report shall be prepared
by professional worker (or experienced personnel who are supervised by such
qualified workers) to indicate the basis on which the applicants were accepted
as prospective adopters. It should include an assessment of the parents'
capacity to parent a particular type of child and provide relevant in formation
for other authorities such as Courts.
4.5. The report on the family study which
must be made in the community where the applicants are residing, shall include
details of the following:
4.5.1. Identifying information about parents
and other members of the family, including any necessary documentation.
4.5.2. Emotional and intellectual capacities
of prospective adopters, and their motivation to adoption.
4.5.3. Relationship (material, family,
relatives, friends, community) 4.5.4. Health.
4.5.5. Accommodation and financial position.
4.5.6. Employment and other interests.
4.5.7. Religious affiliations and/or
attitude.
4.5.8. Capacity for adoptive parenthood, and
details of child preferred (age, sex, degree of disability).
4.5.9. Support available from relatives,
friends, community.
4.5.10. Social worker's assessment and
details of adoption authority's approval.
822 4,5.11. Recent photograph of family.
Adoption Authorities and Agencies:
5.1. Inter-country adoption arrangements
should be made only through Government adoption authorities (or agencies
recognised by them) in both sending and receiving countries. They shall use
experienced staff with professional social work education or experienced
personnel supervised by such qualified workers.
5.2. The appropriate authority or agency in
the child's country should be informed of all proposed inter-country adoptions
and have the opportunity to satisfy itself that all alternatives in the country
have been considered, and that inter-country adoption is the optimal choice of
care for the child.
5.3. Before any inter-country adoption plan
is considered, the appropriate authority or agency in the child's country
should be responsible for establishing that the child is legally free for
adoption, and that the necessary documentation is legally valid in both
countries.
5.4. Approval of inter-country adoption
applicants is a responsibility of the appropriate authorities or agencies in
both sending and receiving countries. An application to adopt a child shall not
be considered by a sending country unless it is forwarded through the
appropriate authority or agency in the receiving country.
5.5. The appropriate authority or agency in
both countries shall monitor the reimbursement of costs involved in inter-country
adoption to prevent profiteering and traffic king in children.
5.6. XX XX XX XX 5.7. When a child goes to
another country to be adopted, the appropriate authority or agency of the
receiving country shall accept responsibility for supervision of the placement,
and for the provision of progress reports for the adoption authority or agency
in the sending country for the period agreed upon.
823 5.8. In cases where the adoption is not
to be finalised in the sending country, the adoption authority in the receiving
country shall ensure that an adoption order is sought as soon as possible but
not later than 2 years after placement. It is the responsibility of the
appropriate authority or agency in the receiving country to inform the
appropriate authority or agency in the sending country of the details of the
adoption order when it is granted.
5.8.1. In cases where the adoption is to be
finalised in the sending country after placement, it is the responsibility of
the appropriate authority or agency in both the sending and receiving country
to ensure that the adoption is finalised as soon as possible.
5.9. If the placement is disrupted before the
adoption is finalised, the adoption authority in the receiving country shall be
responsible for ensuring, with the agreement of the adoption authority in the
sending country that a satisfactory alternative placement is made with
prospective adoptive parents who are approved by the adoption authorities of
both countries.
Adoption Services and Communities:
6.1. Appropriate authorities or agencies in
receiving countries shall ensure that there is adequate feedback to the
appropriate authorities or agencies in sending countries, both in relation to
inter-country adoption generally and to individual children where required.
6.2. XX XX XX XX 6.3. The appropriate
authorities and agencies in both sending and receiving countries have a
responsibility for public education in relation to inter-country adoption, to
ensure that when such adoption is appropriate for children, public attitudes
support this. Where public attitude is known to be discriminatory or likely to
be hostile on grounds of race or colour, the appropriate authority or agency in
the sending country should not consider placement of the child.
824 Status of the Child:
7.1. Family:
It is essential that in inter-country
adoption child is given the same legal status and rights of inheritance, as if
she/he had been born to the adoptive parents in marriage.
7.2. Name:
When the legal adoption process is concluded
the child shall have the equivalent of a birth registration certificate.
7.3. Nationality:
When the legal adoption is concluded, the
child shall be granted appropriate citizenship.
7.4. XX XX XX XX 7.5. Immigration:
Before an inter-country adoption placement
with particular prospective adopters is proposed, the appropriate authority or
agency in the child's country shall ensure that there is no hindrance, to the
child entering the prospective adopters' country, and that travel documents can
be obtained at the appropriate time.
We shall examine these provisions of the
Draft Declaration and the draft guidelines of procedure when we proceed to
consider and lay down the principles and norms which should be followed in
intercountry adoption.
Now it would be convenient at this stage to
set out the procedure which is at present being followed for giving a child in
adoption to foreign parents. Since there is no statutory enactment in our
country providing for adoption of a child by foreign parents or laying down the
procedure which must be followed in such a case, resort is had to the
provisions of the Guardians & Wards Act 1890 for the purpose of
facilitating such adoption. This Act is an old statute enacted for the purpose
of providing for appointment of guardian of the person or property of a minor.
Section 4 sub-section (5) clause (a) defines the "court" to mean the
district court 825 having jurisdiction to entertain an application under the
Act for an order appointing or declaring a person to be a guardian and the
expression "district court" is defined in sub-section (4) of section
4 to have the same meaning as assigned to it in the Code of Civil Procedure and
includes a High Court in the exercise of its ordinary original civil
jurisdiction. Section 7 sub-section (1) provides that where the court is
satisfied that it is for the welfare of a minor that an order should be made
appointing a guardian of his person or property or both or declaring a person
to be such a guardian, the court may make an order accordingly and, according
to section 8, such an order shall not be made except on the application of one
of four categories of persons specified in clauses (a) to (d), one of them
being "the person desirous of being the guardian of the minor" and
the other being "any relative or friend of the minor". Sub section
(1) of section 9 declares that if the 'application' is with respect to the
guardianship of the person of the minor-and that is the kind of application
which is availed of for the purpose of intercountry adoption-it shall be made
to the district court having jurisdiction in the place where the minor
ordinarily resides. Then follows section 11, sub- section (1) which prescribes
that if the court is satisfied that there is ground for proceeding on the
application, it shall fix a date for the hearing thereof and cause notice of
the application and of the date fixed for the hearing to be served on the
parents of the minor if they are residing in any State to which the Act
extends, the person if any named in the petition as having the custody or
possession of the person of the minor, the person proposed in the application
to be appointed guardian and any other person to whom, in the opinion of the
court, special notice of the application should be given. Section 17 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 character and capacity of the proposed guardian
and his nearness of kin to the minor, the wishes, if any, of a deceased parent
and any existing or previous relations of the proposed guardian with the minor
or his property. The last material section is section 26 which provides that a
guardian of the person of a minor appointed by the court shall not, without the
leave of the court by which he was appointed, remove the ward from the limits
of its jurisdiction, except for such purposes as may be prescribed and the
leave to be granted by the 826 court may be special or general. These are the
relevant provisions of the Guardians and Wards Act 1890 which have a bearing on
the procedure which is at present being followed for the purpose of carrying
through inter-country adoption.
The foreign parent makes an application to
the court for being appointed guardian of the person of the child whom he
wishes to take in adoption and for leave of the court to take the child with
him to his country on being appointed such guardian. The procedure to be
followed by the court in disposing of such application is laid down by three
High Courts in the country with a view to protecting the interest and
safeguarding the welfare of the child, but so far as the rest of the High
Courts are concerned, they do not seem to have taken any steps so far in that
direction. Since most of the applications by foreign parents wishing to take a
child in adoption in the State of Maharashtra are made on the original side of
the High Court of Bombay that High Court has issued a notification dated 10th
May 1972 incorporating Rule 361-B in Chapter XX of the Rules of the High Court
of Bombay (Original Side) 1957 an this newly added Rule provides inter alia as
follows:
When a foreigner makes an application for
being appointed as the guardian of the person or property of a minor, the
Prothonotary and Senior Master shall address a letter to the Secretary of the
Indian Council of Social Welfare, informing him of the presentation of the
application and the date fixed for the hearing thereof-he shall also inform him
that any representation which the Indian Council of Social Welfare may make in
the matter would be considered by the Court before passing the order on the
application.
A copy of the application shall be forwarded
to the Secretary of the Indian Council of Social Welfare along with the letter
of Prothonotary and Senior Master." The High Court of Delhi has also
issued instructions on the same lines to the Courts subordinate to it and these
instructions read as follows:
(i) A foreigner desirous of being appointed
guardian or the person of a minor and praying for leave to remove the minor to
a foreign country, shall make an application for the purpose in the prescribed
form under the Guardians and Wards Act, attaching with it three copies of
passport size 827 photographs of the minor, duly attested by the person having
custody of the minor at the time;
(ii) If the court is satisfied that there is
no ground for proceedings on the application, it shall fix a day for the
hearing there of and cause notice of the application and of the date fixed for
the hearing on the person and in the manner mentioned in Section 11, Guardians
and Wards Act, 1890 as also to the general public and the Secretary of the
Indian Council of child Welfare and consider their representation;
(iii) Every person appointed guardian of the
person of a minor shall execute a bond with or without a surety or sureties as
the court may think fit to direct and in such sum as the court may fix, having
regard to the welfare of the minor and to ensure his production in the court if
and when so required by the court;
(iv) On the court making an order for the
appointment of a foreigner guardian of the person of an Indian minor, a copy of
the minor's photograph shall be counter-signed by the Court and issued to the
guardian or joint guardian, as the case may be, appointed by the court
alongwith the certificate or guardianship." The High Court of Gujarat has
not framed any specific rule for this purpose like the High Courts of Bombay
and Delhi but in a judgment delivered in 1982 in the case of Rasiklal Chaganlal
Mehta,(1) the High Court of Gujarat has made the following observations:
"In order that the Courts can
satisfactorily decide an intercountry adoption case against the aforesaid
background and in the light of the above referred guidelines, we consider it
necessary to give certain directions. In all such cases, the Court should issue
notice to the Indian Council of Social Welfare (175, Dadabhai Naroji Road,
Bombay- 828 400001) and seek its assistance. If the Indian Council of Social
Welfare so desires it should be made a party to the proceedings. If the Indian
Council of Social Welfare does not appear, or if it is unable, for some reason,
to render assistance, the Court should issue notice to an independent, reputed
and publicly/officially recognised social welfare agency working in the field
and in that area and request it to render assistance in the matter." The
object of giving notice to the Indian Council of Social Welfare or the Indian
Council for Child Welfare or any other independent, reputed and publicly or
officially recognised social welfare agency is obviously to ensure that the
application of foreign parents for guardianship of the child with a view to its
eventual adoption is properly and carefully scrutinised and evaluated by an
expert body having experience in the area of child welfare with a view to
assisting the Court in coming to the conclusion whether it will be in the
interest of the child, promotive of its welfare, to be adopted by the foreign
parents making the application or in other words, whether such adoption will
provide moral and material security to the child with an opportunity to grow
into the full stature of its personality in an atmosphere of love and affection
and warmth of a family hearth and home. This procedure which has been evolved
by the High Courts of Bombay, Delhi and Gujarat is, in our opinion, eminently
desirable and it can help considerably to reduce, if not eliminate, the
possibility of the child being adopted by unsuitable or undesirable parents or
being placed in a family where it may be neglected, maltreated or exploited by
the adoptive parents. We would strongly commend this procedure for acceptance
by every court in the country which has to deal with an application by a
foreign parent for appointment of himself as guardian of a child with a view to
its eventual adoption We shall discuss this matter a little more in detail when
we proceed to consider what principles and norms should be laid down for
inter-country adoption, but, in the meanwhile, proceeding further with the
narration of the procedure followed by the courts in Bombay, Delhi and Gujarat,
we may point out that when notice is issued by the court, the Indian Council of
Social Welfare or the Indian Council for Child Welfare or any other recognised
social welfare agency to which notice is issued, prepares what may conveniently
be described as a child study report and submits it to the Court for its
consideration. What are the different aspects relating to the child in respect
of which the child study report should give information is a matter which we
shall presently discuss, but suffice it to state for the time 829 being that
the child study report should contain legal and social data in regard to the
child as also an assessment of its behavioural pattern and its intellectual,
emotional and physical development. The Indian Council of Social Welfare has
evolved a standardised form of the child study report and it has been annexed
as Ex. 'C' to the reply filed in answer to the notice issued by the Court.
Ordinarily an adoption proposal from a foreign parent is sponsored by a social
or child welfare agency recognised or licensed by the Government of the country
in which the foreign parents resides and the application of the foreign parent
for appointment as guardian of the child is accompanied by a home study report
prepared by such social or child welfare agency. The home study report contains
an assessment of the fitness and suitability of the foreign parent for taking
the child in adoption based on his antecedents, family background, financial
condition, psychological and emotional adaptability and the capacity to look
after the child after adoption despite racial, national and cultural
differences.
The Indian Council of Social Welfare has set
out in annexure 'B' to the reply filed by it, guidelines for the preparation of
the home study report in regard to the foreign parent wishing to take a child
in adoption, and it is obvious from these guidelines which we shall discuss a
little later, that the home study report is intended to provide social and
legal facts in regard to the foreign parent with a view to assisting the court
in arriving at a proper determination of the question whether it will be in the
interest of the child to be given in adoption to such foreign parent. The court
thus has in most cases where an application is made by a foreign parent for
being appointed guardian of a child in the courts in Bombay, Delhi and Gujarat,
the child study report as well as the home study report together with other
relevant material in order to enable it to decide whether it will be for the
welfare of the child to be allowed to be adopted by the foreign parents and if
on a consideration of these reports and material, the court comes to the
conclusion that it will be for the welfare of the child, the court makes an
order appointing the foreign parent as guardian of the child with liberty to
him to take the child to his own country with a view to its eventual adoption.
Since adoption in a foreign country is bound
to take some time and till then the child would continue to be under the
guardianship of the foreign parent by virtue of the order made by the court,
the foreign parent as guardian would continue to be accountable to the court
for the welfare of the child and the court therefore takes a bond from him with
or without surety or sureties in such sum as may be thought for ensuring its
production if and when required by the court.
830 The foreign parent then takes the child
to his own country either personally or through an escort and the child is then
adopted by the foreign parent according to the law of his country and on such
adoption, the child acquires the same status as a natural born child with the
same rights of inheritance and succession as also the same nationality as the
foreign parent adopting it. This is broadly the procedure which is followed in
the courts in Bombay, Delhi and Gujarat and there can be no doubt that, by and
large, this procedure tends to ensure the welfare of the child, but even so,
there are several aspects of procedure and detail which need to be considered
in order to make sure that the child is placed in the right family where it
will be able to grow into full maturity of its personality with moral and
material security and in an atmosphere of love and warmth and it would not be
subjected to neglect, maltreatment or exploitation.
Now one thing is certain that in the absence
of a law providing for adoption of an Indian child by a foreign parent, the
only way in which such adoption can be effectuated is by making it in
accordance with the law of the country in which the foreign parent resides. But
in order to enable such adoption to be made in the country of the foreign
parent, it would be necessary for the foreign parent to take the child to his
own country where the procedure for making the adoption in accordance with the
law of that country can be followed. However, the child which is an Indian
national cannot be allowed to be removed out of India by the foreign parent
unless the foreign parent is appointed guardian of the person of the child by
the Court and is permitted by the Court to take the child to his own country
under the provisions of the Guardians and Wards Act 1890. Today, therefore, as
the law stands, the only way in which a foreign parents can take an Indian
child in adoption is by making an application to the Court in which the child
ordinarily resides for being appointed guardian of the person of the child with
leave to remove the child out of India and take it to his own country for the
purpose of adopting it in accordance with the law of his country. We are
definitely of the view that such inter-country adoption should be permitted
after exhausting the possibility of adoption within the country by Indian
parents. It has been the experience of a large number of social welfare
agencies working in the area of adoption that, by and large, Indian parents are
not enthusiastic about taking a stranger child in adoption and even if they
decide to take such child in adoption, they prefer to adopt a boy rather than a
girl and they are wholly averse to adopting a handicapped child, with the
result that the majority of abandoned, destitute or orphan girls and 831
handicapped children have very little possibility of finding adoptive parents
within the country and their future lies only in adoption by foreign parents.
But at the same time it is necessary to bear in mind that by reason of the
unavailability of children in the developed countries for adoption, there is a
great demand for adoption of children from India and consequently there is
increasing danger of ill-equipped and sometimes even undesirable organisations
or individuals activising themselves in the field of inter- country adoption
with a view to trafficking in children and sometimes it may also happen that
the immediate prospect of transporting the child from neglect and abandonment
to material comfort and security by placing it with a foreigner may lead to
other relevant factors such as the intangible needs of the child, its emotional
and psychological requirements and possible difficulty of its assimilation and
integration in a foreign family with a different racial and cultural
background, being under-emphasized, if not ignored.
It is therefore necessary to evolve normative
and procedural safeguards for ensuring that the child goes into the right
family which would provide it warmth and affection of family life and help it
to grow and develop physically, emotionally, intellectually and spiritually.
These safeguards we now proceed to examine.
We may make it clear at the outset that we
are not concerned here with cases of adoption of children living with their
biological parents, for in such class of cases, the biological parents would be
the best persons to decide whether to give their child in adoption to foreign
parents.
It is only in those cases where the children
sought to be taken in adoption are destitute or abandoned and are living in
social or child welfare centres that it is necessary to consider what normative
and procedural safeguards should be forged for protecting their interest and
promoting their welfare.
Let us first consider what are the
requirements which should be insisted upon so far at a foreigner wishing to
take a child in adoption is concerned In the first place, every application
from a foreigner desiring to adopt a child must be sponsored by a social or
child welfare agency recognised or licensed by the government of the country in
which the foreigner is resident. No application by a foreigner for taking a
child in adoption should be entertained directly by any social or 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. This is essential primarily for three reasons.
832 Firstly, it will help to reduce, if not
eliminate altogether the possibility of profiteering and trafficking in
children, because if a foreigner were allowed to contact directly agencies or
individuals in India for the purpose of obtaining a child in adoption, he might
in his anxiety to secure a child for adoption, be induced or persuaded to pay
any unconscionable or unreasonable amount which might be demanded by the agency
or individual procuring the child.
Secondly it would be almost impossible for
the court to satisfy itself that the foreigner who wishes to take the child in
adoption would be suitable as a parent for the child and whether he would be
able to provide a stable and secure family life to the child and would be able
to handle trans-racial, trans-cultural and trans-national problems likely to
arise from such adoption, because, where the application for adopting a child
has not been sponsored by a social or child welfare agency in the country of
the foreigner, there would be no proper and satisfactory home study report on
which the court can rely. Thirdly, in such a case, where the application of a
foreigner for taking a child in adoption is made directly without the
intervention of a social or child welfare agency, there would be no authority
or agency in the country of the foreigner who could be made responsible for
supervising the progress of the child and ensuring that the child is adopted at
the earliest in accordance with law and grows up in an atmosphere of warmth and
affection with moral and material security assured to it. The record shows that
in every foreign country where children from India are taken in adoption, there
are social and child welfare agencies licensed or recognised by the government
and it would not therefore cause any difficulty hardship or inconvenience if it
is insisted that every application from a foreigner for taking a child in
adoption must be sponsored by a social or child welfare agency licensed or
recognised or recognised by the government of the country in which the
foreigner resides. It is not necessary that there should be only one social or
child welfare agency in the foreign country through which an application for
adoption of a child may be routed; there may be more than one such social or
child welfare agencies, but every such social or child welfare agency must be
licensed or recognised by the government of the foreign country and the court
should not make an order for appointment of a foreigner as guardian unless it
is satisfied that the application of the foreigner for adopting a child has
been sponsored by such social or child welfare agency. The social or child
welfare agency which sponsors the application for taking a child in adoption must
get a home study report prepared by a professional 833 worker indicating the
basis on which the application of the foreigner for adopting a child has been
sponsored by it. The home study report should broadly include information in
regard to the various matters set out in Annexure 'A' to this judgment though
it need not strictly adhere to the requirements of that Annexure and it should
also contain an assessment by the social or child welfare agency as to whether
the foreigner wishing to take a child in adoption is fit and suitable and has
the capacity to parent a child coming from a different racial and cultural
milieu and whether the child will be able to fit into the environment of the
adoptive family and the community in which it lives.
Every application of a foreigner for taking a
child in adoption must be accompanied by a home study report and the social or
child welfare agency sponsoring such application should also send along with it
a recent photograph of the family, a marriage certificate of the foreigner and
his or her spouse as also a declaration concerning their health together with a
certificate regarding their medical fitness duly certificate by a medical
doctor, a declaration regarding their financial status along with supporting
documents including employer's certificate where applicable, income tax
assessment orders, bank references and particulars concerning the properties
owned by them, and also a declaration stating that they are willing to be
appointed guardian of the child and undertaking that they 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 and 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, they would
maintain the child and provide it necessary education and up-bringing according
to their status and they would also 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.
The application of the foreigner must also be accompanied by a Power of
Attorney in favour of an Officer 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 foreigner must also certify
that the foreigner seeking to adopt a child is permitted to do so according to
the law of his country.
These certificates, declarations and
documents which must accompany the application of the foreigner for taking a
child in adoption, should be duly notarised by a Notary Public whose signature
should be duly attested either by an Officer of the Ministry of External
Affairs or Justice or Social Welfare of the country of the foreigner or by an
Officer of the Indian Embassy or High Commission or Consulate in that country.
The social or child welfare agency sponsoring the application of the foreigner
must also undertake while forwarding the application to the social or child
welfare agency in India, that it will ensure adoption of the child by the
foreigner according to the law of his country within a period not exceeding two
years and as soon as the adoption is effected, it will send two certified
copies of the adoption order to the social or child welfare agency in India
through which the application for guardianship is processed, so that one copy
can be filed in court and the other can remain with the social or child welfare
agency in India. The social or child welfare agency sponsoring the application
must also agree to send to the concerned social or child welfare agency in
India progress reports in regard to the child, quarterly during the first year
and half yearly for the subsequent year or years until the adoption is
effected, and it must also undertake that in case of disruption of the family
of the foreigner before adoption can be effected, it will take care of the
child and find a suitable alternative placement for it with the approval of the
concerned social or child welfare agency in India and report such alternative
placement to the court handling the guardianship proceedings and such
information shall be passed on both by the court as also by the concerned
social or child welfare agency in India to the Secretary, Ministry of Social
Welfare, Government of India.
The Government of India shall prepare a list
of social or child welfare agencies licensed or recognised for inter- country
adoption by the government of each foreign country where children from India
are taken in adoption and this list shall be prepared after getting the
necessary information from the government of each such foreign country and the
Indian Diplomatic Mission in that foreign country.
We may point out that the Swedish Embassy has
in Annexure II to the affidavit filed on its behalf by Ulf Waltre, given names
of seven Swedish organisations or agencies which are authorised by the National
Board for Inter-Country Adoption functioning under the Swedish Ministry of
Social Affairs to "mediate" applications for adoption by Swedish
nationals and the Indian Council of Social Welfare has also in the reply filed
by it in answer to the writ petition given a list of government recognised
organisations or agencies dealing in inter-country adoption in foreign
countries. It should not therefore be difficult for the Government of India to
prepare a list 835 of social or child welfare agencies licensed or recognised
for inter country adoption by the Government in various foreign countries. We
direct the Government of India to prepare such list within six months from
today and copies of such list shall be supplied by the Government of India to
the various High Courts in India as also to the social or child welfare
agencies operating in India in the area of inter-country adoption under licence
or recognition from the Government of India. We may of course make it clear
that application of foreigners for appointment of themselves as guardians of
children in India with a view to their eventual adoption shall not be held up
until such list is prepared by the Government of India but they shall be
processed and disposed of in the light of the principles and norms laid down in
this judgment.
We then proceed to consider the position in
regard to biological parents of the child proposed to be taken in adoption.
What are the safeguards which are required to be provided in so far as
biological parents are concerned ? We may make it clear at the outset that when
we talk about biological parents, we mean both parents if they are together of
the mother or the father if either is alone. Now it should be regarded as an
elementary requirement that if the biological parents are known, they should be
properly assisted in making a decision about relinquishing the child for
adoption, by the Institution or centre or Home for Child Care or social or
child welfare agency to which the child is being surrendered. Before a decision
is taken by the biological parents to surrender the child for adoption, they
should be helped to understand all the implications of adoptions including the
possibility of adoption by a foreigner and they should be told specifically
that in case the child is adopted, it would not be possible for them to have
any further contact with the child. The biological parents should not be
subjected to any duress in making a decision about relinquishment and even
after they have taken a decision to relinquish the child for giving in
adoption, a further period of about three months should be allowed to them to
reconsider their decision. But once the decision is taken and not reconsidered
within such further time as may be allowed to them, it must be regarded as
irrevocable and the procedure for giving the child in adoption to a foreigner
can then be initiated without any further reference to the biological parents
by filing an application for appointment of the foreigner as guardian of the
child.
Thereafter there can be no question of once
again consulting the biological parents whether they wish to give the child in
adoption or they want to take it back. It would be most unfair if after a 836
child is approved by a foreigner and expenses are incurred by him for the
purpose of maintenance of the child and sometimes on medical assistance and
even hospitalisation for the child, the biological parents were once again to
be consulted for giving them a locus penitential to reconsider their decision.
But in order to eliminate any possibility of mischief and to make sure that the
child has in fact been surrendered by its biological parents, it is necessary
that the Institution or Centre or Home for Child Care or social or child
welfare agency to which the child is surrendered by the biological parents,
should take from the biological parents a document of surrender duly signed by
the biological parents and attested by at least two responsible persons and
such document of surrender should not only contain the names of the biological
parents and their address but also information in regard to the birth of the
child and its background, health and development. If the biological parents
state a preference for the religious upbringing of the child, their wish should
as far as possible be respected, but ultimately the interest of the child alone
should be the sole guiding factor and 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. This procedure can and must
be followed where the biological parents are known and they relinquish the
child for adoption to an Institution or Centre or Home for Child Care or
hospital or social or child welfare agency. But where the child is an orphan,
destitute or abandoned child and its parents are not known, the Institution or
Centre or Home for Child Care or hospital or social or child welfare agency in
whose care the child has come, must try to trace the biological parents of the
child and if the biological parents can be traced and it is found that they do
not want to take back the child, then the same procedure as outlined above
should as far as possible be followed. But if for any reason the biological
parents cannot be traced, then there can be no question of taking their consent
or consulting them. It may also be pointed out that the biological parents
should not be induced or encouraged or even be permitted to take a decision in
regard to giving of a child in adoption before the birth of the child of within
a period of three months from the date of birth. This precaution is necessary
because the biological parents must have reasonable time after the birth of the
child to take a decision whether to rear up the child themselves or to
relinquish it for adoption and moreover it may be necessary to allow some time
to the child to overcome any health problems experienced after birth.
837 We may now turn to consider the
safeguards which should be observed in so far as the child proposed to be taken
in adoption is concerned. It was generally agreed by all parties appearing
before the Court, whether as interveners or otherwise, that it should not be
open to any and every agency or individual to process an application from a
foreigner for taking a child in adoption and such application should be
processed only through a social or child welfare agency licensed or recognised
by the Government of India or the Government of the State in which it is
operating, or to put it differently in the language used by the Indian Council
of Social Welfare in the reply filed by it in answer to the writ petition,
"all private adoptions conducted by unauthorised individuals or agencies
should be stopped". The Indian Council of Social Welfare and the Indian
Council for Child Welfare are clearly two social or child welfare agencies
operating at the national level and recognised by the Government of India, as
appears clearly from the letter dated 23rd August, 1980 addressed by the Deputy
Secretary to the Government of India to the Secretary, Government of Kerela,
Law Department, Annexure 'F' to the submissions filed by the Indian Council for
Child Welfare in response to the writ petition. But apart from these two
recognised social or child welfare agencies functioning at the national level,
there are other social or child welfare agencies engaged in child care and
welfare and if they have good standing and reputation and are doing commendable
work in the area of child care and welfare, there is no reason why they should
not be recognised by the Government of India or the Government of a State for
the purpose of inter-country adoptions. We would direct the Government of India
to consider and decide within a period of three months from today whether any
of the institutions or agencies which have appeared as interveners in the
present writ petition are engaged in child care and welfare and if so, whether
they deserve to be recognised for inter- country adoptions. Of course it would
be open to the Government of India or the Government of a State suo motu or on
an application made to it to recognise any other social or child welfare agency
for the purpose of inter-country adoptions, provided such social or child
welfare agency enjoys good reputation and is known for its work in the field of
child care and welfare. We would suggest that before taking a decision to
recognise any particular social or child welfare agency for the purpose of
intercountry adoptions, the Government of India or the Government of a State
would do well to examine whether the social or child welfare agency has proper
staff with professional social work experience, because otherwise it may not be
possible for the social or child wel- 838 fare agency to carry out
satisfactorily the highly responsible task of ensuring proper placement of a
child with a foreign adoptive family. It would also be desirable not to
recognise an organisation or agency which has been set up only for the purpose
of placing children in adoption:
it is only an organisation or agency which is
engaged in the work of child care and welfare which should be regarded as
eligible for recognition, since inter-country adoption must be looked upon not
as an independent activity by itself, but as part of child welfare programme so
that it may not tend to degenerate into trading. The Government of India or the
Government of a State recognising any social or child welfare agency for
inter-country adoptions must insist as a condition of recognition that the
social or child welfare agency shall maintain proper accounts which shall be
audited by a chartered accountant at the end of every year and it shall not
charge to the foreigner wishing to adopt a child any amount in excess of that
actually incurred by way of legal or other expenses in connection with the
application for appointment of guardian including such reasonable remuneration
or honorarium for the work done and trouble taken in processing, filing and
pursuing the application as may be fixed by the Court.
Situations may frequently arise where a child
may be in the care of a child welfare institution or centre or social or child
welfare agency which has not been recognised by the Government. Since an
application for appointment as guardian can, according to the principles and
norms laid down by us, be processed only by a recognised social or child
welfare agency and none else, any unrecognised institution, centre or agency
which has a child under its care would have to approach a recognised social or
child welfare agency if it desires such child to be given in inter-country
adoption, and in that event it must send without any undue delay the name and
particulars of such child to the recognised social or child welfare agency
through which such child is proposed to be given in inter-country adoption.
Every recognised social or child welfare agency must maintain a register in
which the names and particulars of all children proposed to be given in
inter-country adoption through it must be entered and in regard to each such
child, the recognised social or child welfare agency must prepare a child study
report through a professional social worker giving all relevant information in
regard to the child so as to help the foreigner to come to a decision whether
or not to adopt the child and to understand the child, if he decides to adopt
it as also to assist the court in coming to a decision whether it will be for
the welfare of the child to be given in adoption to the 839 foreigner wishing
to adopt it. The child study report should contain as far as possible
information in regard to the following matters:
"(1) Identifying information, supported
where possible by documents.
(2) Information about original parents,
including their health and details of the mother's pregnancy and birth.
(3) Physical, intellectual and emotional
development.
(4) Health report prepared by a registered
medical practitioner preferably by a paediatrician.
(5) Recent photograph.
(6) Present environment-category of care (Own
home, foster home, institution etc.) relationships, routines and habits.
(7) Social worker's assessment and reasons
for suggesting inter-country adoption." The government of India should,
with the assistance of the Government of the States, 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 each foreign country where Indian children are ordinarily taken
in adoption so that the social or child welfare agencies licensed or recognised
by the Government of such foreign country for intercountry adoptions, would
know which social or child welfare agency in India they should approach for
processing an application of its national for taking an Indian child in
adoption. Such list shall also be sent by the Government of India to each High
Court with a request to forward it to the district courts within its
jurisdiction so that the High Courts and the district courts in the country
would know which are the recognised social or child welfare agencies entitled
to process an application for appointment of a foreigner as guardian. Of
course, it would be desirable if a Central Adoption Resource Agency is set up
by the Government of India with regional branches at a few centres which are
active in inter-country 840 adoptions. Such Central Adoption Resource Agency
can 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 country to such Central Adoption Resource Agency 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. Every social or child welfare
agency taking children under its care can then be required to send to such
Central Adoption Resource Agency the names and particulars of children under
its care who are available for adoption and the names and particulars of such
children can be entered in a register to be maintained by such Central Adoption
Resource Agency. But until such Central Adoption Resource Agency is set up, an
application of a foreigner for taking an Indian child in adoption must be
routed through a recognised social or child welfare agency. Now before any such
application from a foreigner is considered, every effort must be made by the
recognised social or child welfare agency to find placement for the child by
adoption in an Indian family. Whenever any Indian family approaches a
recognised social or child welfare agency for taking a child in adoption, all
facilities must be provided by such social or child welfare agency to the
Indian family to have a look at the children available with it for adopt on and
if the Indian family wants to see the child study report in respect of any
particular child, child study report must also be made available to the Indian
family in order to enable the Indian family to decide whether they would take
the child in adoption. 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, subject only to one
exception, namely, that if the child is handicapped or is in bad state of
health needing urgent medical attention, which is not possible for the social
or child welfare agency looking after the child to provide, the recognised
social or child 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. The recognised social or child welfare agency should,
on receiving an application of a foreigner for adoption through a licensed or
recognised social or child welfare agency in a foreign country, consider which
child would be suitable for being given in adoption to the foreigner and would
fit into the environment of his family and community and send the photograph
and child study report of such child to the foreigner for the purpose of
obtaining his 841 approval to the adoption of such child. The practice of
accepting a general approval of the foreigner to adopt any child should not be
allowed, because it is possible that if the foreigner has not seen the
photograph of the child and has not studied the child study report and a child
is selected for him by the recognised social or child welfare agency in India
on the basis of his general approval, he may on the arrival of the child in his
country find that he does not like the child or that the child is not suitable
in which event the interest of the child would be seriously prejudiced. The
recognised social or child welfare agency must therefore insist upon approval
of a specific known child and once that approval is obtained, the recognised
social or child welfare agency should immediately without any undue delay
proceed to make an application for appointment of the foreigner as guardian of
the child. Such application would have to be made in the court within whose
jurisdiction the child ordinarily resides and it must be accompanied by copies
of the home study report, the child study report and other certificates and
documents forwarded by the social or child welfare agency sponsoring the
application of the foreigner for taking the child in adoption.
Before we proceed to consider what procedure
should be followed by the court in dealing with an application for appointment
of a foreigner as guardian of a child, we may deal with a point of doubt which
was raised before us, namely, whether the social or child welfare agency which
is looking after the child should be entitled to receive from the foreigner
wishing to take the child in adoption any amount in respect of maintenance of
the child or its medical expenses. We were told that there are instances where
large amounts are demanded by so called social or child welfare agencies or
individuals in consideration of giving a child in adoption and often this is
done under the label of maintenance charges and medical expenses supposed to
have been incurred for the child. This is a pernicious practice which is really
nothing short of trafficking in children and it is absolutely necessary to put
an end to it by introducing adequate safeguards. There can be no doubt that if
an application of a foreigner for taking a child in adoption is required to be
routed through a recognised social or child welfare agency and the necessary
steps for the purpose of securing appointment of the foreigner as guardian of
the child have also to be taken only through a recognised social or child
welfare agency, the possibility of any so called social or child welfare agency
or individual trafficking in children by demanding exorbitant amounts from
prospective adoptive parents under the guise of maintenance charges and medical
expenses or 842 otherwise, would be almost eliminated. But, at the same time,
it would not be fair to suggest that the social or child welfare agency which
is looking after the child should not be entitled to receive any amount from
the prospective adoptive parent, when maintenance and medical expenses in
connection with the child are actually incurred by such social or child welfare
agency. Many of the social or child welfare agencies running homes for children
have little financial resources of their own and have to depend largely on voluntary
donations and therefore if any maintenance or medical expenses are incurred by
them on a child, there is no reason why they should not be entitled to receive
reimbursement of such maintenance and medical expenses from the foreigner
taking the child in adoption. We would therefore direct that the social or
child welfare agency which is looking after the child selected by a prospective
adoptive parent, may legitimately receive from such prospective adoptive parent
maintenance expenses at a rate not exceeding Rs. 60 per day (this outer limit
being subject to revision by the Ministry of Social Welfare, Government of
India from time to time) from the date of selection of the child by him until
the date the child leaves for going to its new home as also medical expenses
including hospitalisation charges, if any, actually incurred by such social or
child welfare agency for the child. But the claim for payment of such
maintenance charges and medical expenses shall be submitted to the prospective
adoptive parent through the recognised social or child welfare agency which has
processed the application for guardianship and payment in respect of such claim
shall not be received directly by the social or child welfare agency making the
claim but shall be paid only through the recognised social or child welfare
agency. This procedure will to a large extent eliminate trafficking in children
for money or benefits in kind and we would therefore direct that this procedure
shall be followed in the future. But while giving this direction, we may make
it clear that what we have said should not be interpreted as in any way
preventing a foreigner from making voluntary donation to any social or child
welfare agency but no such donation from a prospective adoptive parent shall be
received until after the child has reached the country of its prospective
adoptive parent.
It is also necessary to point out that the
recognised social or child welfare agency through which an application of a
foreigner for taking a child in adoption is routed must, before offering a
child in adoption, make sure that the child is free to be adopted. Where the
parents have relinquished the child for adoption and there is a document of
surrender, the child must obviously be taken to be free for adoption. So also
where a child is an orphan or destitute or abandoned child and it has not been
possible by the concerned social or child welfare 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 the
juvenile court, it must be regarded as free for adoption. The recognised social
or child welfare agency must place sufficient material before the court to
satisfy it that the child is legally available for the adoption. It is also
necessary that the recognised welfare agency must satisfy itself, firstly, that
there is no impediment in the way of the child entering the country of the
prospective adoptive parent; secondly, that the travel documents for the child
can be obtained at the appropriate time and lastly, that the law of the country
of the prospective adoptive parent permits legal adoption of the child and that
no such legal adoption being concluded, the child would acquire the same legal
status and rights of inheritance as a natural born child and would be granted
citizenship in the country of adoption and it should file along with the
application for guardianship, a certificate reciting such satisfaction.
We may also at this stage refer to one other
question that was raised before us, namely, whether a child under the care of a
social or child welfare agency or hospital or orphanage in one State can be
brought to another State by a social or child welfare agency for the purpose of
being given in adoption and an application for appointment of a guardian of
such child can be made in the court of the latter State. This question was
debated before us in view of the judgment given by Justice Lentin of the Bombay
High Court of 22nd July, 1982 in Miscellaneous Petition No. 178 of 1982 and
other allied petitions. We agree with Justice Lentin that the practice of
social or child welfare agencies or individuals going to different States for
the purpose of collecting children for being given in inter-country adoption is
likely to lead to considerable abuse, because it is possible that such social
or child welfare agencies or individuals may, by offering monetary inducement,
persuade indigent parents to part with their children and then give the children
to foreigners in adoption by demanding a higher price, which the foreigners in
their anxiety to secure a child for adoption may be willing to pay. But we do
not think that if a child is relinquished by its biological parents or is an
orphan or destitute or abandoned child in its parent State, there should be any
objection to a social or child welfare agency taking the child to another
State, even if 844 the object be to give it in adoption, provided there are
sufficient safeguards to ensure that such social or child welfare agency does
not indulge in any malpractice. Since we are directing that every application
of a foreigner for taking a child in adoption shall be routed only through a
recognised social or child welfare agency and an application for appointment of
the foreigner as guardian of the child shall be made to the court only through
such recognised social or child welfare agency, there would hardly be any scope
for a social or child welfare agency or individual who brings a child from
another State for the purpose of being given in adoption to indulge in
trafficking and such a possibility would be reduced to almost nil. Moreover
before proposing a child for adoption, the recognised social or child welfare
agency must satisfy itself that the child has either been voluntarily
relinquished by its biological parents without monetary inducement or is an
orphan or destitute or abandoned child and for this purpose, the recognised
social or child welfare agency may require the agency or individual who has the
care and custody of the child to state on oath as to how he came by the child
and may also, if it thinks fit, verify such statement, by directly enquiring
from the biological parents or from the child care centre or hospital or
orphanage from which the child is taken. This will considerably reduce the
possibility of abuse while at the same time facilitating placement of children
deprived of family love and care in smaller towns and rural areas. We do not
see any reason why in cases of this kind where a child relinquished by its
biological parents or an orphan or destitute or abandoned child is brought by
an agency or individual from one State to another, it should not be possible to
apply for guardianship of the child in the court of the latter State, because
the child not having any permanent place of residence, would then be ordinarily
resident in the place where it is in the care and custody of such agency or
individual. But quite apart from such cases, we are of the view that in all
cases where a child is proposed to be given in adoption, enquiries regarding
biological parents, whether they are traceable or not and if traceable, whether
they have voluntarily relinquished the child and if not, whether they wish to
take the child back, should be completed before the child is offered for
adoption and thereafter no attempt should be made to trace or contact the
biological parents.
This would obviate the possibility of an ugly
and unpleasant situation of biological parents coming forward to claim the
child after it has been given to a foreigner in adoption. It is also necessary
while considering placement of a child in adoption to bear in mind that
brothers and sisters or children who have 845 been brought up as siblings
should not be separated except for special reasons and as soon as a decision to
give a child in adoption to a foreigner is finalised, the recognised social or
child welfare agency must if the child has reached the age of understanding,
take steps to ensure that the child is given proper orientation and is prepared
for going to its new home in a new country so that the assimilation of the
child to the new environment is facilitated.
We must emphasize strongly that the entire
procedure which we have indicated above including preparation of child study
report, making of necessary enquiries and taking of requisite steps leading
upto the filing of an application for guardianship of the child proposed to be
given in adoption, must be completed expeditiously so that the child does not
have to remain in the care and custody of a social or child welfare agency
without the warmth and affection of family life, longer than is absolutely
necessary.
We may also point out that if a child is to
be given in intercountry adoption, it would be desirable that it is given in
such adoption as far as possible before it completes the age of 3 years. The
reason is that if a child is adopted before it attains the age of
understanding, it is always easier for it to get assimilated and integrated in
the new environment in which it may find itself on being adopted by a foreign
parent. Comparatively it may be some What difficult for a grown up child to
get acclimatized to new surroundings in a different land and sometimes a
problem may also arise whether foreign adoptive parents would be able to win
the love and affection of such grown up child. But we make it clear that we say
this, we do not wish to suggest for a moment that children above the age of
three years should not be given in inter-country adoption. There can be no hard
and fast rule in this connection. Even children between the ages of 3 and 7
years may be able to assimilate themselves in the new surroundings without any
difficulty and there is no reason why they should be denied the benefit of
family warmth and affection in the home of foreign parents, merely because they
are past the age of 3 years. We would suggest that even children above the age
of 7 years may be given in inter-country adoption but we would recommend that
in such cases, their wishes may be ascertained if they are in a position to
indicate any preference. The statistics placed before us show that even
children past the age of 7 years have been happily integrated in the family of
their foreign adoptive parents.
846 Lastly, we come to the procedure to be
followed by the court when an application for guardianship of a child is made
to it. Section 11 of the Guardians and Wards Act, 1890 provides for notice of
the application to be issued to various persons including the parents of the
child if they are residing in any State to which the Act extends. But, we are
definitely of the view that no notice under this section should be issued to
the biological parents of the child, since it would create considerable amount
of embarrassment and hard ship if the biological parents were then to come
forward and oppose the application of the prospective adoptive parent for
guardianship of the child. Moreover, the biological parents would then come to
know who is the person taking the child in adoption and with this knowledge
they would at any time be able to trace the whereabouts of the child and they
may try to contact the child resulting in emotional and psychological
disturbance for the child which might affect his future happiness. The
possibility also cannot be ruled out that if the biological parents know who
are the adoptive parents they may try to extort money from the adoptive
parents. It is therefore absolutely essential that the biological parents
should not have any opportunity of knowing who are the adoptive parents taking
the child in adoption and therefore notice of the application for guardianship
should not be given to the biological parents.
We would direct that for the same reasons
notice of the application for guardianship should also not be published in any
newspaper. Section 11 of the Act empowers the court to serve notice of the
application for guardianship on any other person to whom, in the opinion of the
court, special notice of the application should be given and in exercise of
this power the court should, before entertaining an application for
guardianship, give notice to the Indian Council of Child Welfare or the Indian
Council for Social Welfare or any of its branches for scrutiny of the
application with a view to ensuring that it will be for the welfare of the
child to be given in adoption to the foreigner making the application for
guardianship. The Indian Council of Social Welfare of the Indian Council of
Child Welfare to which notice is issued by the court would have to scrutinize
the application for guardianship made on behalf of the foreigner wishing to
take the child in adoption and after examining the home study report, the child
study report as also documents and certificates forwarded by the sponsoring
social or child welfare agency and making necessary enquiries, it must make its
representation to the court so that the court may be able to satisfy itself
whether the principles and norms as also the procedure laid down by us in this
judgment have been observed and followed, whether the foreigner 847 will be a
suitable adoptive parent for the child and the child will be able to integrate
and assimilate itself in the family and community of the foreigner and will be
able to get warmth and affection of family life as also moral and material
stability and security and whether it will be in the interest of the child to
be taken in adoption by the foreigner. If the court is satisfied, then and then
only it will make an order appointing the foreigner as guardian of the child
and permitting him to remove the child to his own country with a view to
eventual adoption. The court will also introduce a condition in the order that
the foreigner who is appointed guardian shall make proper provision by way of
deposit or bond or otherwise to enable the child to be repatriated to India
should it become necessary for and reason. We may point out that such a
provision is to be found in clause 24 of the Adoption of Children Bill No. 208 of
1980 and in fact the practice of taking a bond from the foreigner who is
appointed guardian of the child is being followed by the courts in Delhi as a
result of practice instructions issued by the High Court of Delhi. The order
will also include a condition that the foreigner who is appointed guardian
shall submit to the Court as also to the Social or Child Welfare Agency
processing the application for guardianship, progress reports of the child
along with a recent photograph quarterly during the first two years and half
yearly for the next three years. The court may also while making the order
permit the social or child welfare agency which has taken care of the child
pending its selection for adoption to receive such amount as the Court thinks
fit from the foreigner who is appointed guardian of such child. The order
appointing guardian shall carry, attached to it, a photograph of the child duly
counter- signed by an officer of the court. This entire procedure shall be
completed by the court expeditiously and as far as possible within a period of
two months from the date of filing of the application for guardianship of the
child. The proceedings on the application for guardianship should be held by
the Court in camera and they should be regarded as confidential and as soon as
an order is made on the application for guardianship the entire proceedings
including the papers and documents should be sealed. When an order appointing
guardian of a child is made by the court, immediate intimation of the same shall
be given to the Ministry of Social Welfare, Government of India as also to the
Ministry of Social Welfare of the Government of the State in which the court is
situate and copies of such order shall also be forwarded to the two respective
ministries of Social Welfare. The Ministry of Social Welfare, Government of
India shall maintain a register containing names and other particulars of the
children in 848 respect of whom orders for appointment of guardian have been
made as also names, addresses and other particulars of the prospective adoptive
parents who have been appointed such guardians and who have been permitted to
take away the children for the purpose of adoption. The Government of India
will also send to the Indian Embassy or High Commission in the country of the
prospective adoptive parents from time to time the names, addresses and other
particulars of such prospective adoptive parents together with particulars of
the children taken by them and requesting the Embassy or High Commission to
maintain an unobtrusive 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 maltreatment,
negligence or exploitation to the Government of India for suitable action.
We may add even at the cost of repetition
that the biological parents of a child taken in adoption should not under any
circumstances be able to know who are the adoptive parents of the child nor
should they have any access to the home study report or the child study report
or the other papers and proceedings in the application for guardianship of the
child. The foreign parents who have taken a child in adoption would normally
have the child study report with them before they select the child for adoption
and in case they do not have the child study report, the same should be
supplied to them by the recognised social or child welfare agency processing
the application for guardianship and from the child study report, they would be
able to gather information as to who are the biological parents of the child,
if the biological parents are known. There can be no objection in furnishing to
the foreign adoptive parents particulars in regard to the biological parents of
the child taken in adoption, but it should be made clear that it would be
entirely at the discretion of the foreign adoptive parents whether and if so
when, to inform the child about its biological parents. Once a child is taken
in adoption by a foreigner and the child grows up in the surroundings of the
country of adoption and becomes a part of the society of that country, it may
not be desirable to give information to the child about its biological parents
whilst it is young, as that might have the effect of exciting his curiosity to
meet its biological parents resulting in unsettling effect on its mind. But if
after attaining the age of maturity, the child wants to know about its
biological parents, there may not be any serious objection to the giving of such
information to the child because after the child attains maturity, it is not
likely to be easily affected by such information and in such a 849 case, the
foreign adoptive parents may, in exercise of their discretion, furnish such
information to the child if they so think fit.
These are the principles and norms which must
be observed and the procedure which must be followed in giving a child in
adoption to foreign parents. If these principles and norms are observed and
this procedure is followed, we have no doubt that the abuses to which
inter-country adoptions, if allowed without any safeguards, may lend themselves
would be considerably reduced, if not eliminated and the welfare of the child
would be protected and it would be able to find a new home where it can grow in
an atmosphere of warmth and affection of family life with full opportunities
for physical intellectual and spiritual development. We may point out that the
adoption of children by foreign parents need not wait until social or child
welfare agencies are recognised by the Government as directed in this order,
but pending recognition of social or child welfare agencies for the purpose of
inter-country adoptions, which interregnum, we hope, will not last for a period
of more than two months, any social or child welfare agency having the care and
custody of a child may be permitted to process an application of a foreigner,
but barring this departure the rest of the procedure laid down by us shall be
followed wholly and the principles and norms enunciated by us in this Judgment
shall be observed in giving a child in inter-country adoption.
The writ petition shall stand disposed of in
these terms. Copies of this order shall be sent immediately to the Ministry of
Social Welfare of the Government of India and the Ministry of Social Welfare of
each of the State Governments as also to all the High Courts in the country and
to the Indian Council of Social Welfare and the Indian Council of Child
Welfare. We would direct that copies of this Order shall also be supplied to
the Embassies and Diplomatic Missions of Norway, Sweden, France, Federal
Republic of Germany and the United States of America and the High Commissions
of Canada and Australia for their information since the statistics show that
these are the countries where Indian children are taken in adoption.
S.R.
850 ANNEXURE-'A' 1. Source of Referral.
2. Number of single and joint interviews.
3. Personality of husband and wife.
4. Health details such as clinical tests,
heart condition, past illnesses etc. (medical certificates required, sterility
certificate required, if applicable), 5. Social status and family background.
6. Nature and Adjustment with occupation.
7. Relationship with community.
8. Description of home.
9. Accommodation for the child.
10. Schooling facilities.
11. Amenities in the home.
12. Standard of living as it appears in the
home.
13. Type of neighbourhood.
14. Current relationship between husband and
wife.
15. (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.
16. Current relationship between the couple
and the members of each other's families.
851
17. If the wife is working, will she be able
to give up the job ?
18. If she cannot leave the job, what
arrangements will she make to look after the child ?
19. Is adoption considered because of
sterility of one of the maritial partners ?
20. If not, can they eventually have children
of their own ?
21. If a child is born to them, how will they
treat the adopted child ?
22. If the couple already has children how
will these children react to an adopted child ?
23. Important social and psychological
experiences which have had a bearing on their desire to adopt a child.
24. Reasons for wanting to adopt an Indian
child.
25. Attitude of grand-parents and relatives
towards the adoption.
26. Attitude of relatives, friends, community
and neighbourhood towards adoption of an Indian child.
27. Anticipated plans for the adopted child.
28. 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 permission required.)
29. 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 ?
30. Did the couple apply for a child from any
other source ? If yes, which source ?
31. What type of child is the couple
interested in ? (sex, age, and for what reasons.) 852
32. Worker's recommendation concerning the
family and the type of child which would best fit into this home.
33. Name and address of the agency conducting
the home study. Name of social worker, qualification of social worker.
34. Name of agency responsible for post
placement, supervision and follow up.
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