Report No. 153

Chapter 5

Judicial Guidelines on Inter-Country Adoption

5.1. The Supreme Court on a letter addressed to it in public interest took cognisance 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 sought to restrain Indian based private agencies "from carrying out further activity of routing children for adoption abroad" and it also sought direction to 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.

The landmark judgment which laid down guidelines was followed by other eight orders issued from time to time either in clarification, substitution or for giving effect to the earlier ones on certain points involving inter-country adoption.1

1. The guidelines are laid down in Laxmi Kant Pandey v. Union of India, (1984) 2 SCR 795 and were elucidated in Laxmi Kant Pandey v. Union of India, AIR 1987 SC 232 and Laxmi Kant Pandey v. Union of India, JT 1991 (3) SC 582. Also Jay Kevin Salerno (in re:), AIR 1988 Born 139 SC, Order: 6th August, 1993 etc.

5.2. The Supreme Court has, while laying down the normative and procedural safeguards on inter-country adoptions of Indian children relied upon Articles 15, 24 and 39 of the Constitution and sections 7 to 9 and 11 of the Guardians and Wards Act, 1890 and the International Conventions. The judicial creativity of the Court filled in the gap by the guidelines, where there were none before.

5.3. Earlier attempt made by the Gujarat High Court1 for laying down guidelines was not comprehensive. However, the decision had resolved the question of adoption of Indian children by foreign parents with reference to the Guardians and Wards Act, 1890, and excluded application of the Hindu Adoptions and Maintenance Act, 1956.

1. R.C. Mehta (in re:), AIR 1982 Guj 193.

5.4. Incidentally it may be mentioned that the procedure to be followed by the court in disposing of applications for adoption of Indian children by foreigners was laid down by the High Court of Bombay1 and the High Court of Delhi2 under rules and instructions and by the High Court of Gujarat3 by certain observations made for the same purpose.4

1. The High Court of Bombay has issued a Notification on 10th May, 1972 incorporating Rule 371B in Chapter XX of the Rules of the High Court of Bombay (Original Side), 1957.

2. The High Court of Delhi has also issued instructions in (1984) 2 SCR 795.

3. R.C. Mehta (in re:), AIR 1982 Guj 193.

4. L.K. Pandey v. Union of India, (1984) 2 SCR 826-828.

5.5. Before we proceed to summarise normative and procedural safe guards, it must be mentioned that the Supreme Court in its judgment has emphasised at the very outset that a family environment is the best for a child and the adoptive parents would be the next best substitute for the biological parents. But when a child is to be given in adoption, then, every effort must be made first to find adoptive parents for it within the country and only after such efforts have failed, it may become necessary, to give the child in adoption to a foreigner rather than allow the child to grow up in an orphanage.

5.6. It is in the context of this care and concern shown by the Supreme Court to the abandoned children, we will proceed to summarise briefly the normative safeguards first and the procedural safeguards afterwards.

The normative safeguards can be classified as under:

(1) when a child is adoptable;

(2) when children are living with their biological parents;

(3) when children are destitutes or abandoned;

(4) when a foreigner desires to adopt an Indian child; and

(5) the role of the Central Authorities and recognised organisations in process of inter-country adoption.

In inter-country adoptions two countries are involved. One, the state of origin or sending state and, two, the receiving state. Therefore, there are two Central Authorities of two states which are necessary contracting parties for inter-country adoptions. These Central Authorities grant or require to grant recognition to voluntary organisations or agencies on certain stipulations and conditions on the basis of the work experience, professional skills and integrity in the field of adoption of children by foreigners.

Of course, even the diplomatic missions of both countries are also involved in the process. These are some important aspects which are taken into consideration in classifying the normative safeguards in inter-country adoptions. Now we proceed to summarise the normative safeguards as under.