Report No. 153
7.1. In the earlier chapters of this Report we have discussed various aspects of the problem of inter-country adoption. The position which finally emerges is that there is a demand for a uniform law regulating adoption in general, particularly regulating the demand for adoption of abandoned children by foreign parents. It is, therefore, necessary to enact appropriate legislation regulating such adoptions as the existing practice and procedure contained in the Guardians and Wards Act, 1890 are inadequate to regulate the inter-country adoptions.
The proposed law should regulate matters relating to adoption of Indian children by foreign parents with a view to eliminating profiteering and trafficking in children and preventing abuse and exploitation of children by foreign parents and above all ensuring the welfare of the child proposed to be given in adoption.
7.2. The Commission is of the view that biological parents provide the best family environment for the full growth and development of a child. But such environment is not available to an abandoned child placed in an orphanage. Therefore, adoption of such a child is the best substitute for the biological family. While considering the question of giving a child in adoption, the first preference should be given to Indian parents, the second choice should be given to non-resident Indian parents and if none of these are available, the child should be given in adoption to the foreign parents. Such child may or may not be abandoned child.
7.3. The proposed legislation should provide that after an adoption order is passed, the foreigner should be guardian of the child and he should thereafter be free to take away the child to his country.
7.4. The inter-country adoption law is recommended in order to regulate matters relating to adoption of Indian children by foreign parents with a view to eliminating profiteering and trafficking in children and preventing completely abuse and exploitation of children adopted by foreign parents and ensuring the welfare of the child proposed to be given in adoption to foreign parents.
7.5. The proposed law should regulate adoption of a child with the consent of the biological parents or in the case of an abandoned child with the consent of the child welfare agency recognised for the purpose of inter-country adoption. The consent given should be free from duress or inducement and after the proper counselling in the case of the biological parents with regard to the implications of their consent for adoption of their child. When a child has rational understanding, the consent of the child after proper counselling should be obtained.
7.6. It should be ensured that on adoption of the child the authorities will issue a birth certificate to the child indicating the adoptive parents as his or her parents.
7.7. A passport to a child should be issued within two weeks to enable him to go out of India to join his proposed adoptive parents.
7.8. The proposed legislation should provide a mechanism to ensure for the welfare of the child in the country of the adoptive parents.
7.9. The proposed law should provide that the progress reports of the child should be submitted by the sponsoring foreign agencies for a period of 5 years or till the child attains the age of 12 years, whichever is later. The reports sent should be quarterly in the first two years, six monthly in the next three years and thereafter yearly, if required, till the child attains the age of 12 years.
7.10. The proposed law in our opinion should permit adoption by a foreigner only if the child can be eventually adopted under the corresponding law of his country. In other words if the law of the foreigner's country does not provide for adoption, then he should not be entitled to adopt Indian child.
7.11. A provision in the proposed legislation should be made to ensure that in case the proposed adoption by foreign guardian is disrupted because of certain unforeseen circumstances, the child should either be placed with some other suitable adoptive family with the concurrence of the Government of India or of some other agency designated by it, or is repatriated back at the last resort, to the placement agency in India.
7.12. The proposed legislation should have a provision that the sponsoring foreign child welfare agency may have its representative in India who may be an Indian citizen, with professional qualifications and experience in child welfare work. The representative should not act for more than one foreign child welfare agency and have the right to open and operate account in any Indian Bank for and on behalf of such foreign child welfare agency with the permission of the Reserve Bank of India.
7.13. When there is a family court, the matter of adoption under the proposed law should be seized and decided by the family court, or when there is no family court, a district court having jurisdiction over the place where a child ordinarily resides shall be the competent court.
7.14. In view of the importance of the matters under the proposed law, it is necessary that the proceedings in the court are disposed of at the early date. It is recommended that the court should not take ordinarily more than three months in disposing of an application for inter-country adoption and it is desirable that the proceedings are held in camera.
7.15. With the passage of time, there will be heavy demands as to the efficacy and promptness of the role of the Central Adoption Resource Agency (CARA) which has been established by the Government of India. The present CARA appears to be a weak organization in terms of its composition, man power and working conditions. There is a need to make CARA an effective organisation with its regional branches at appropriate places.
7.16. A provision with regard to fund in order to enable CARA to perform its functions under the proposed law should be made.
7.17. A provision ensuring accountability of CARA to Parliament through annual reports reflecting its true and full activities each year should be made in the proposed law.
7.18. The proposed law should prescribe conditions for recognition of foreign and Indian child welfare agencies and also for their derecognition in appropriate cases.
7.19. In order that inter-country adoptions work smoothly and effectively it would be desirable for the Central Government to enter into bilateral treaties with the countries where the Indian children are taken out under the court orders for their eventual adoptions in accordance with the laws of those countries.
7.20. As far the question of legislative competence is concerned, Parliament has power to make law on the subject of inter-country adoption under Articles 246(1) and 253 read with Entry 14 in List 1 (Union List) in the Seventh Schedule. Article 246(1) confers exclusive power on Parliament to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule. Article 253 gives Parliament exclusive power to make laws for giving effect to international agreements treaties and conventions. Entry 14 of the Union List reads as under-
"4 Entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries."
As noted earlier, India is a signatory to international conventions and declarations governing the inter-country adoption of children. Effect to the conventions can be given only by laws enacted by Parliament. Moreover, under Article 246(2), Parliament has concurrent power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule.
Adoption, which can be both in-country and inter-country, is the subject included under Entry 5. Therefore, Parliament has power to make law on inter-country adoption under Article 246(2) read with Entry 5 in the Concurrent list in the Seventh Schedule. Such law when enacted will foster respect for international law and treaty obligations as envisaged under Article 51(c) of the Constitution of India.
7.21. In view of the above discussion the Law Commission recommends that law should be enacted to regulate inter-country adoption and for the purpose of legislative convenience a Draft of the proposed enactment is annexed as Appendix 'A' io the Report. The Law Commission hopes that the Government will take immediately effective steps to implement the Report and enact the law in order to safeguard the interests of children.
Justice K.N. Singh, Chairman.
Prof. D.N. Sandanshiv, Member.
Ch. Prabhakara Rao, Member-secretary.
P.M. Bakshi, Members (Part-time).
M. Marcus, Members (Part-time).