Report No. 153
The Role of the Child Welfare Agencies
6.1. Only those child welfare agencies as are recognised by the Government can undertake the work of inter-country adoption, for the purpose of which no specific statutory law is in force in our country. Therefore, the Supreme Court in its landmark judgment1 on the subject had to rely upon the Guardians and Wards Act, 18902 and the International conventions and Declarations3 for laying down the necessary guidelines for regulating inter-country adoption, reference to which has already been made in the earlier Chapters. Pursuant to the court judgment, the Central Government issued guidelines on adoption of Indian children by foreigners for the information and guidance of general public, voluntary agencies as well as all other concerned with the subject matter.4
1. Laxmi Kant Pandey v. Union of India, (1984) 2 SCR 795.
4. Resolution of July 1989.
6.2. The guidelines issued by the Central Government are binding on the child welfare agencies recognised and working for inter-country adoption. The role of such voluntary agencies is determined, regulated and supervised under the guidelines issued, which are based on the Supreme Court Judgment. These guidelines also deal with the role of foreign agencies engaged in adoption of Indian children. Foreign agencies are required to apply to India's adoption of Indian children. Foreign agencies are required to apply to India's are protected.
6.3. In order to elicite information, the Law Commission addressed communication1 to the 41 child welfare agencies which are recognised2 by CARA for the purpose of placing children in inter-country adoption. In all 31 agencies3 responded to the communication. The responses received by the Law Commission disclosed the practical working experiences gained and the actual role played by the child welfare agencies in inter-country adoption under the guidelines issued by the Government of India.
1. Appendix F.
2. Appendix G.
3. Appendix H.
6.4. It is to be noted at the outset that all recognised child welfare agencies working in the field for inter-country adoption have shown willingness and ability to follow the guidelines laid down by the Supreme Court. Institutional backgrounds and value commitments of the responding agencies have been reflected in their respective responses. These agencies are running children's homes for crisis-affected babies who are brought to them by the police or abandoned by unwed mothers. They believe that society must value its children and solve the problem of their destitution.
6.5. Various child welfare agencies working in the field of inter-country adoption had in their responses highlighted the working of the scheme relating to the adoption of Indian children by foreign agencies. Those agencies, have faced a number of problems and they have made suggestions for the removal of those problems and also for facilitating the smooth functioning of the entire scheme to provide inter-country adoption. We have gone through the responses and the various suggestions made therein. The Commission expresses its deep appreciation of the commendable work being done by the voluntary organisations in this field. The details of the responses are contained in Appendix I.
On a close scrutiny and analysis of the responses, we find that the experience gained by agencies shows a remarkable phenomenon that contrary to general belief Indian children adopted by foreign parents are looked after well and they have full opportunities for their development. In our opinion, this should be an eye opener to those who express apprehension or spread disinformation against adoption of Indian children by foreigners. All this has been possible due to the implementation of the guidelines laid down by the Supreme Court and also on account of the special interest taken by the Welfare Ministry of the Central Government.
The valuable opinions and suggestions as contained in the responses have been taken into consideration in formulating our recommendations and also in drafting the proposed legislation. We do not, therefore, consider it necessary to express our view in detail on the responses. Some of the suggestions are not practicable and as such we have not recommended for their implementation.
6.6. The problems faced and suggestions made, by the Child Welfare agencies, being relevant for the purpose of this report, are summarised as under:
1. Law on adoption should be "child centered" and look after the interests of children on a priority basis.
2. There is no statutory law providing for adoption of children in India except the personal law of Hindus and there is a need to have a secular law which should be enabling and permissive in order to encourage adoption so that the home to the needy child is provided.
3. Prior to placing a child with a foreign family, every effort should be made to locate an Indian family for the child. Should a family for a particular child be unavailable with the placement agency, then assistance through the Voluntary Co-ordinating Agency (V.C.A.) within each state should be sought and utilised. In this way suitable Indian families from other adoption agencies can be located. It is through strengthening the local VCAs that the task of inter-agency coordination can be accomplished.
The V.C.A. should comprise personnel not involved in the placement of children for foreign adoptions. Only those children who are not placeable in our own country should be placed in foreign adoption. Specific time schedule should be prescribed by law for the placement of child within the country failing which the child should be considered free for foreign adoption.
4. A wife or a husband who has been deserted by other spouse for more than one year should be allowed to relinquish, if necessary, the child below 5 years, to the orphanages legally. This will help to prevent child abuse. The spouse, having custody of a child, should be considered a sole guardian of such child for surrendering it to the orphanage.
5. Once an agency applies to CARA for clearance certificate for the proposed inter-country adoption of a child and no reply is received within 15 days, the permission should be deemed to have been given in the interest of the child to provide him love and warmth of a family life at the earliest.
The handicapped children should be exempted from requirement of clearance from CARA for placement abroad, as such children need special care, attention and treatment including surgery; and there are families from abroad who may be willing to take such children but due to the time factor involved in clearing applications finally do not wish to pursue the matter. It is, therefore, suggested that CARA should only be a monitoring body and keep a check on the various agencies through the quarterly reports that are being regularly sent to it and by holding inspections through its organs in the states.
6. The first priority is to locate Indian family, in India, for adoption failing which the next best is an Indian family abroad and only thereafter consideration in the last should be given to the foreign families. For placing children with Indian families abroad, it is not compulsory that their applications be routed through foreign agencies that are recognised by the Government of India. The NRI applications should be routed through Indian agencies recognised by Government of India to maintain a watch through follow up reports.
7. Adoptive parents must enjoy the same facility of child care leave at per with paid maternity leave. This is essential to help the child's emotional adjustment and physical development.
8. An adopted child must have the right to birth certificate with the name of the adoptive parent as his parents. It is because it becomes degrading for a child to function with an affidavit which gives the circumstances of its birth and abandonment. It is informed by a social welfare agency operating in Goa, where adopted child is regarded illegitimate from older times. There has been a practice of bringing up illegitimate children to serve as servants of the house and were referred to as adopted loosely. It is suggested that this can be mitigated to a certain extent if the adoptive parents names are inserted as parents in the birth certificate of the child adopted.
9. In Sweden there is no concept of illegitimate child and, therefore, the child is not looked down upon by its society due to his birth status. It is the duty of the society as well as of the state to save the child from the stigma of illegitimacy for no fault of his. In the circumstances, the concept of illegitimacy of children should be removed by law.
10. It is observed that the Courts delay considerably to settle adoption cases by foreign nationals despite the guidelines of the Supreme Court to dispose them expeditiously. Because of this delay, sometimes foreign adoptive parents become so impatient that they start looking for another child from some other country for adoption. Though adoption is a low priority area, yet there has been months at a stretch when no judge was available at some places to hear adoption cases thereby causing great anxiety to waiting parents and children. Therefore, guardianship applications should be disposed of by the family courts who understand emotional aspects of a family life.
11. Although the passport to the child proposed to be given in inter- country adoption be issued within a week under the Supreme Court guidelines, the passport authorities .even then take months together to issue passport. It is suggested that the passport should be issued within two weeks.
12. The limit of the security bond to be furnished by the foreign agency is required to be curtailed to some reasonable limit from rupees five laks as laid down by the guidelines now.
13. The licence given for agencies doing inter-country adoption should be for three years instead of one year at present. This would be helpful in a continuous process of placement of Indian children in foreign adoption.
14. That guidelines with respect to increasing the quota in in-country adoption should be laid down only after bringing a uniform law of adoption for all communities in India.
15. The Indian Child Welfare agencies should be given opportunities to make on the spot study of the adopted children and bring the firsthand information to be shared with all interested parties about the life of these children living with their adoptive parents abroad.
16. Although adoption by Indian parents is growing in number, yet the families normally go around selecting babies of their choice. As such, babies who are ill-nourished, very dark in complexion, handicapped, having medical problems or special need do not find homes in India. If we cannot find the family life for these children in our country, it is suggested, we must not hesitate to select foreign families for them.
17. The children suffer trauma and set back in life due to parental poverty, neglect, abuse and for having too many children to be looked after. A suggestion is, therefore, made that family planning should be encouraged by law providing for a smaller family unit and non-discriminatory social status for the girl child.
18. In Goa children are given in guardianship under the Portuguese Code which applies to all communities in Goa. Though the general civil laws, in force in Goa, do not permit adoption the Hindus adopt children under the law of Usages and Customs, but only from a close family member, preferably the second issue of the adoptive father's brother. However, considering the present trend of having small families, it was becoming increasingly difficult to find a child to adopt as permitted under the usages and customs and, therefore, many Hi idus could not adopt but only take in guardianship as is done by the other communities in Goa. People in Goa ask "How do you expect us to adopt when there is no law of adoption".
19. In India, we must have a uniform and secular adoption law for in-country and inter-country adoptions.
20. The capable parents should be allowed to adopt more than one child at a time even if they are not siblings and may have a living child, male or female, of their own.
21. All children including the adopted children in a family should get equal property share.
6.7. It is noticed that certain Diplomatic Missions in Delhi had flouted inter-country adoption directives. The letter1 had alleged, inter alia, that "it is a matter of great concern that unsuspecting foreign nationals are misguided and misled by vested interests of the lawyers, private nursing homes or individuals." It is alleged that adoption application to the hospital by foreign parents having three older children of their own was in response to an advertisement in an "In-house" magazine of foreign mission. It is said that the advertisement in question was itself questionable.
1. A letter dated 26th August, 1992 addressed by the President of Delhi Council for Child Welfare to the Joint Secretary, Government or India, Ministry of Welfare was forwarded to the Law Commission.
6.8. The above discussion shows that there is need for Inter-Country Adoption law. The Child Welfare Agencies have suggested for a uniform and secular law on adoption. The Law Commission is however of the view that since the scope of this report is confined to Inter-Country Adoption, it is not possible to express any opinion on this subject.