Report No. 153
The International Law on Adoption
4.1. A radical shift from the ancient laws and practices to the contemporary laws and practices on adoptions in most states in the world has caused profound impact on the International Law on adoption. A brief statement on such development is therefore pertinent and necessary at the outset of this part of report. It is because the International Law like state law does not operate in vacuum but responds to the problems which centre around the gravity of social and cultural developments in the comity of nations.
4.2. Adoption is so widely recognised that it can be characterised as an almost worldwide institution with historical roots traceable into antiquity. Continuity of male line in a particular family, the welfare of the adopter in this world and the next was the primary concern of ancient adoptions. Little attention was paid to the welfare of the child adopted. In contrast, contemporary laws and practices aim to provide child welfare and are regarded as one facet of the state's general programme to its children.
Although the desire to continue a family line is still the personal motive for adoption, society's interest now centres more on the creation of a parent-child relationship between a married couple and a child. This attitude developed primarily in the period following World War I, when vast numbers of illegitimate births increased. In the latter part of the 20th century, a decline in the number of -children available for legal adoption stimulated changes in traditional restrictions like placements across religious and ethnic lines. Single parent adoptions are now accepted in many states.1
1. The New Encylopaedia Britannica: Volume 1 Micropaedia, Ready reference: 1987 1-A-akBayes; p. 105.
4.3. The development as discussed above has been reflected in the inter-national efforts in protecting the children from exploitation and advancing their welfare as the paramount consideration and these efforts have been manifested in the international instruments. These are as under:
(1) The Geneva Declaration of the Right of the Child of 1924.
(2) Declaration of the Right of the Child adopted by UN. General Assembly on November 20, 1959.
(3) Draft Guidelines of Procedure concerning Inter-Country Adoptions formulated by Expert Group and adopted by the Economic and Social Council of the United Nations in its 20th Session.
(4) The Hague convention of 15th November, 1956 adopted by the Hague conference on the Private International Law.
(5) The United Nations Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with special reference to foster placement and adoption nationally and internationally adopted by UN General Assembly on 3rd December, 1986.
(6) Report of the Special Commission of the Hague Conference on the Private International Law Resolution 14 of 1988.
(7) The UN Convention of the Rights of the Child of November 20, 1989.
(8) Preliminary Draft Convention on International Co-operation and Protection of Children in respect of inter-country adoption drawn up by the Special Commission of the Hague conference on the Private International Law, February, 1992.
(9) Private International Law Convention on Protection of Children and Co-operation in respect of inter-country adoption, Final Act, at the Hague Conference, 29th May, 1993.
4.4. These instruments, inter alit?, regulate the inter-country adoption and therefore are directly relevant for the purpose of this report. It is not necessary to discuss each of the aforesaid International Instruments in detail. The salient features as deduced from the aforesaid Instruments are briefly summarised as under:-
(a) The child shall be entitled from his birth to a name and nationality.
(b) The best interest of the child shall be the paramount consideration.
(c) A child of tender years shall not, save in exceptional circumstances, be separated from his mother.
(d) Society and the public authorities shall have the duty to extend particular care to children without a family.
(e) The child shall be protected against all forms of neglect, cruelty and exploitation. He shall not be the subject of traffic, in any form.
(f) The child shall be protected from practices which may foster racial, religious and any other form of discrimination.
(g) The primary aim of adoption is to provide the child with a permanent family and appropriate environment.
(h) If a child cannot be placed in an adoptive family in his own country, inter-country adoption may be considered as an alternative means of providing the child with a family.
(i) Persons responsible for foster adoption should have professional training.
(j) Inter-country adoption should be made through competent authority or agency with adequate safeguards and no improper financial gain should be involved and legal and social interests of the child should be secured.
(k) It must be ensured that the child is legally free for adoption, can migrate to join the prospective adoptive parents and obtain their nationality.
(l) Governments should establish policy, legislation and effective supervision for the protection of children involved in inter-country adoption and further that inter-country adoption should wherever possible, only be undertaken where such measures have been established in the state concerned.
(m) The consent of biological parents should be free and without duress and preferences to their wishes for the religious upbringing of the child should be given.
(n) The child study report, a family study report and such other investigation should he given due importance.
(o) Reimbursement of cost incurred on a child be made.
(p) Profiteering and trafficking in children shall be prevented.
4.5. The Convention on the rights of the child adopted in 1989 is an important convention for the purpose of this report, we would therefore consider the same in detail. Article 21 is the pivotal provision which contains the principles governing inter-country adoption, it runs as under:
"Article 21: State parties that recognise and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and the State shall-
(a) ensure that the adoption of a child is authorised only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information that the adoption is permissible in view of the child's status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary;
(b) recognise that inter-country adoption may be considered as an alternative means of child's care, if the child cannot be placed in foster or an adoptive family or cannot in any suitable manner be cared for in the child's country of original.1
(c) ensure that the child concerned by inter-country adoption enjoys safe guards and standards equivalent to those existing in the case of national adoption;
(d) take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it;
(e) promote, where appropriate, the objectives of the present Article by concluding bilateral or multilateral arrangements or agreements and endeavour within this frame work, to ensure that the placement of the child in another country is carried out by competent authorities or organs."
This convention has recognised inter-country adoption as an alternative means of child's care when he cannot be adopted in the country of his origin and it emphasises that objectives of inter-country adoption are to be promoted where appropriate, by bilateral or multilateral agreements.2
1. Emphasis supplied.
2. Emphasis supplied.
4.6. The Hague Conference on Private International Law had adopted convention on 15th November, 1965 on jurisdiction, applicable law and recognition of decrees relating to adoptions. However, the report of the Special Commission of the Hague Conference on Private International Law of January 1988 discussed two possible strategies open to the Conference, either a limited instrument to be elaborated within the Conference only, or an instrument in the elaboration of which non-member countries having a direct interest in the matter would also be invited and then expressed that-
"All participants agreed that international adoption was posing at present very serious problems, of a kind or degree different from those existing when the Hague Convention of 15 November 1965 was drawn up."
It is this seriousness of problem of inter-country adoption that finally led the Special Commission to decide in favour of retaining the topic-
"Inter-country adoption on the condition that non-member states concerned express a willingness to participate in the work."
This decision was taken in spite of doubts expressed as to whether the Hague Conference on Private International Law was the appropriate forum to deal with the matter. The Hague Conference since then has been engaged in co-ordinating inter-Governmental and non-Governmental organisations. in international work on inter-country adoption.