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Report No. 153

1.7. In India adoption is not popular and the adopter generally chooses a healthy and fair male child. Girls are not usually taken in adoption. Foreigners on the other hand, do not have any reservation about sex, colour of the skin or state of the child's health. There have been innumerable cases of handicapped children who have been adopted, successfully treated and looked after by foreign families. During the last four years, the number of children given to foreign adoptive parents were 1272 in 1990, 1190 in 1991, 990 in 1992 and 1134 in 1993.1

1. Annual Report, 1992-93, Ministry of Welfare, Govt. of India, New Delhi (Hindi Edn.) p. 71, Annexure 40.

1.8. However, adoption of Indian children by foreigners has given rise to malpractices. Under the garb of adoption, Indian children are taken abroad for domestic services and unscrupulous persons exploit the situation by encouraging child trafficking to the West. Judicial cognizance of these aspects was taken by the Gujarat High Court in 1992.1 The Court, while dealing with adoption of Indian children by foreigners, observed that this entire movement is not fool-proof. "It is not free from abuse and aberrations. The possible existence of an international racket trading in such children and selling them at profit into slavery or prostitution cannot be altogether ruled out."

The Supreme Court of India2 also took cognisance of the problem on the basis of a letter addressed by an advocate, 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 alleged that not only Indian children of tender age are under the guise of adoption exposed to 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 or relief homes, they in course of time become beggars or prostitutes for want of proper care from their alleged foster parents.

1. Rasiklal Chhaganlal Mehta (in re:), AIR 1982 Guj 193.

2. L.K. Pandey v. Union of India, (1984) 2 SCR 795.

1.9. To put an end to such child exploitation, the Supreme Court1 has laid down specific principles and norms and provided the procedure to be followed for adoption of Indian children by foreign parents. We will discuss the same in detail in chapter 5 of this report.

1. L.K. Pandey v. Union of India, (1984) 2 SCR 795.

1.10. Inter-country adoption is the most sensitive, controversial and complex aspect of adoption. It involves a variety of principles and procedures over migration, citizenship, the socio-economic situation of adoptive parents matching parents with the child and acceptance of the child in a different community and culture. It requires the participation of the adoption agencies or authorities in the overseas countries. Similar views have been expressed by the New South Wales, Law Reform Commission on Inter-Country Adoption.1

1. Review of the Adoption of Children Act, 1965 (NSW), Issues paper 9, p. 67, para. 10.2.

1.11. In the interest of child, it is necessary to regulate inter-country adoption by legislation and by strict collaboration between qualified and authorized state and social authorities. It is hoped that as a result adoption will not be merely based upon legislative arrangement but also facilitate the creation of an environment in which the child can grow in health and happiness and be really integrated in the society of its adoption.

1.12. A considerable corpus of law, on adoption and guardianship relevant for the purpose of this report is available. It consists of national enactments and international-private law and public law-instruments. The Guardians and Wards Act, 1890 and the Hindu Adoption and Maintenance Act, 1956 are carefully examined and the relevant international instruments are analysed duly. Besides the judicial pronouncements concerning the subject have received a special consideration in this report.

1.13. In order to elicit responses on the present legal, procedural administrative, institutional, supervisory and other relevant safeguards and protections on adoption of Indian children by foreign parents, the Law Commission of India had undertaken empirical study . It issued a questionnaire to social and child welfare agencies/organisations, and the Central Adoption Resource Agency established under the directives of the Supreme Court1 and working under the control of the Ministry of Welfare, Government of India. The replies and suggestions received by the Law Commission have been scrutinised and analysed. Due weightage has been accorded to the suggestions while formulating the recommendations.

1. L.K. Pandey v. Union of India, (1984) 2 SCR 795.

1.14. The Report is structured not only on the guidelines laid down by the Supreme Court but it is based on empirical investigations. Further the report has utilised the relevant primary and secondary source materials available and the practical work experience gained by the child welfare agencies over the last more than a decade or so in the field of inter-country adoption.

Inter-Country Adoption Back

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