PRESTIGE INSTITUTE OF MANAGEMENT AND RESEARCH

DEPARTMENT OF LAW

SUBJECT :- CONFLICT OF LAW

ASSIGNMENT ON :- RECOGNITION OF FOREIGN

ADOPTION

ROLL NO. :- 182232

SESSION :- 2022-2023

CLASS :- BBA.LLB. VIII SEM

Submitted By :- KANISHK BANSAL

INTRODUCTION
What is Adoption ?
Adoption can be defined as the statutory process of terminating a child's legal rights and duties
towards the natural parents and substituting similar rights and duties towards adoptive parents.
Adoption establishes a parent-child relationship between persons not so related by the birth of
the child. For the parentless or the abandoned child, adoption means a balanced physical and
psychological family environment and to the desirous parents, chances to become parents and
experience family growth. It is one of the means of solving the problems of destitute and
orphans. It is also a way of satisfying the interest of person who is childless. It is prevalent in
every nook and corner of the world. In India also, adoption has been prevailing since ages. Even
the great epics like Ramayana and Mahabharata depicted adoption. Though the practice of
adoption has been exercised from ages, the concept of Inter-country Adoption is relatively a new
concept.
The word ‘Adopt’ can be defined and characterized as the legal cycle of ending a youngster’s
legitimate rights and obligations towards the natural and birth-guardians and subbing
comparative rights and obligations towards new guardians by establishing a type of similar rights
and obligations with different people as their guardians. This Particular word is adopted from the
Latin word ‘adoptare’, which means “to choose”. So basically, it means to voluntarily choose
and take a child from its birth and original parents legally and establishing a similar kind of
relationship with the people who are adopting the child.
The Majority of children who are being adopted are abandoned by their original parents or are
parentless and for those children, adoption means a well proportionate mental and physical
family environment which is the legal responsibility of the new guardians. Adoption is an
unpredictable social marvel, personally sewed into its family law system and molded by the
weights influencing the family in its social setting. It is the mirror that is mirroring the
adjustments in our family life and the endeavors of family law to address those changes. All in
all, it tends to be defined or termed as the legal or managerial act that builds up a lasting
legitimate family connection between a minor and a grown-up who isn’t as of now the minor’s
lawful parent and ends the lawful parent-kid connection between the supportive kid and any
previous natural and original parent.
What is Inter-Country Adoption (aka Foreign Adoption)
Inter-country adoption can be defined as adoption of a child by a person of another country.
Inter-Country adoption may be more viable choice than domestic adoption for many families
especially those who want to adopt a healthy infant. Though Inter-Country adoption has become
quite regular throughout the world.Under inter-country adoption, any individual or any couple
can become legal parents to any child who is a citizen of a different country. If an Indian citizen
is considering overseas adoption, they should meet the eligibility criteria of that country, in
addition to meeting eligibility criteria within India.
Legislative Background

Inter-country adoption is also known as transnational adoption. A few years back, India did not
have specific laws for inter-country adoption. In a famous case of Rasiklal Chhaganlal
Mehta Gujarat High Court and the landmark case of Laxmikant Pandey v. Union of India, the
Supreme Court issued certain guidelines regarding such adoption process, and subsequently,
CARA (The Central Adoption Resource Authority) was established for the regulation of inter-
country adoptions in India. Later CARA was designated as the Central Authority for
implementation of the Hague adoption convention.

Till 2000, Juvenile Justice Act’s provisions related to adoption were not very clear and
comprehensive but in the 2015, the J.J. act made the laws regarding adoption process complete
and streamlined. The law clearly states that all inter-country adoption will take place only as per
the provision of the Juvenile act, and adoption regulations framed by CARA.

Principle of Subsidiarity

The basic principle of childcare and protection emphasizes that the child should be raised by his
or her own biological family. But if a child does not have a family, then efforts should be made
to place the child in an alternate family-based care for a peaceful and healthy growth. Here
adoption may be considered, but while considering adoption, it should be preferred that the child
remains in his or her original social, cultural environment and this the prime reason why in-
country adoption should be the first choice.

If a suitable family cannot be found in the country of origin, inter-country or cross-border

adoption may be considered, so that a permanent family can be offered to a child.

What is CARA?

“The Central Adoption Resource Authority (CARA) is a statutory body of the Ministry of
Women and Child Development, Government of India. It was founded in June 1990. It acts as
the nodal body for adoption of Indian children and is mandated to monitor and regulate in-
country and inter-country adoptions.”
 Child Adoption Laws in India

Hindu’s along with Jains, Sikhs, and Buddhists are governed by the Hindu Adoption and
Maintenance Act, 1956. This legislation allows couples belonging to the aforementioned
religions, to adopt and raise a child legally and this legislation also states that the adopted child
has the right to inherit the property of its new parents. Religions other than the aforementioned
such as people belonging to Christianity and Islam along with Parsis are governed by the
Guardianship and Wards Act, 1890. The reason for separate legislation is, these religions don’t
have their own personal law which is concerned with the adoption of children. However, this act
only considers them as “Guardians” and not “Parents”. So, according to this act, the children are
prohibited to inherit the property of their guardians.
This act also considers the adopted children as a separate identity when they turn Twenty-one
years of age. Legislations concerning the Inter-Country Adoptions in India are very minimal.
The principle laws directing and concerning Inter-Country Adoptions determine its position and
legitimacy from Judicial Pronouncements and CARA Guidelines which sets out an eligibility
criterion regarding the adoption of children. Hence, a National Policy for the welfare of children
was put forth by the Indian Government in pursuance of its constitutional mandate.
The Government of India explained the motive and aim behind this policy in the following
words: “The Nation’s children are a supremely important asset. Their nurture and solicitude are
our responsibility. Children’s programs should find a prominent part in our national plans for the
development of human resources so that our children grow up to become robust citizens,
physically fit, mentally alert, and morally healthy, endowed with the skills and motivation
needed by society. Equal opportunities for development to all children during the period of
growth should be our aim, for this would serve our larger purpose of reducing inequality and
ensuring social justice.”

This National policy focuses on providing every basic necessity to the children to survive in the
modern world. This lays emphasis to work in the fields of education, health as well as
recreational activities. There is no express provision regarding ICA and India is now a signatory
to the Hague Convention of 1993. India has signed the treaty in the year 2003. The government
of India on 21st May, 1995 issued the “Revised Guidelines for the Adoption of Indian Children-
1995” and it has been decided that the said guidelines would be revised with few developments
as the years goes by.
What is the Hague Convention?

Hague Convention on the protection of children & cooperation in respect of inter-country

adoption is an international treaty. This treaty was concluded in Hague on 29th May 1993 and
came into force on 1st May 1995. The document of the treaty was drafted by the Hague
Conference on private international law and till now the treaty has been ratified by 99 countries
and 3 countries have signed it but not yet ratified.

The countries which have ratified the conventions are supposed to follow the conditions or the
standards as far as possible. Many countries which have not ratified the convention are neither
permitted to participate in foreign adoptions of their children nor are allowed to adopt foreign
children by their residents.

Purpose of The Hague Convention

The purpose of the Hague convention is to safeguard the best interests of the
adopted child and to prevent illegal, irregular adoptions so that both the families
and child are protected at all costs. To achieve this purpose, it has set out clear
roles, responsibilities, and procedures regarding inter-country adoptions. It has also
established a system of cooperation between the authorities of the child’s native
country and the receiving country. It provides inter-government recognition of the
adoption, which has taken place following the Hague convention. Such adoptions
shall be held valid by both the countries and no adverse consequences will be faced
by the adopted child and the adoptive family.

India has signed and ratified the Hague convention in 2003 and it is also a member
of the Hague Conference. An NRI, OCI, or a foreign prospective adoptive parent
who wishes to adopt a child from India must follow the Indian guidelines. These
regulations are required to check the illegal practices like trafficking, kidnapping,
and sale of children and corruption.
Laws, Applicable on Inter-Country Adoption in India
All inter-country adoptions, whether it is an adoption of an orphan or an abandon,
or a surrendered child, or adoption of a relative’s child, can be done only as per the
provisions of the Juvenile Justice Act, 2015 and Adoption Regulation Act, 2017
(framed by CARA). These provisions give effect to the Hague Convention on
adoption, to which India is a contracting party & therefore, India is obligated to
adhere to its conditions.
Adoption Amendment Regulation, 2021

The latest amendment bill 2021 passed by the Rajya Sabha in July 2021 and made
a few changes in the Juvenile Justice Bill (Care & Protection of Children) Act,
2015 related to adoption procedure.

It brought new rules to facilitate the transnational adoption under Hindu Adoption
& Maintenance Act (HAMA) by asking CARA to frame regulations regarding
adoption under the legislation. Earlier, the families had to go to court for the no-
objection certificate in transnational adoption cases but now after this amendment,
adoptive families can obtain a certificate of no-objection to take the child abroad
from the Central Adoption Resource Administration (CARA) which is a
government’s adoption authority.

Under this amendment, the ministry waived the two-year mandatory period of stay
in the country for constant monitoring by CARA and other authorities. Following
this new rule, adoptive families can now inform Indian diplomatic missions two
weeks in advance of their intent to travel with the adopted child. During this
process, the families must furnish all details of their residence. Hereby, The Indian
missions will then monitor the progress and security of the adopted child, instead
of CARA and other authorities.
Problems Arising in Case of Inter-Country Adoption
Child Trafficking- In
many cases, the out
child
Children are sold after being taken of becomes theby
the country victim of human
providing falsetrafficking.
information about the child and forging documents.
 Post-AdoptionNegligence In transnational adoption, post-adoption monitoring is
extremely tough and hence the child may be prone to negligence by the adoptive
parents.
Post-Adoption Identity Problem- In cases
parents have to take the child out of the of transnational
country adoption,
as guardians the adoptive
and then complete the
adoption procedure of their country too. The situation becomes very bad if the
guardian does not turn out to be the adoptive parents of the child.

CASES

 Rasiklal Chhaganlal Mehta, in 1956

The issue of validity of inter-country adoption was first discussed in the famous case of Re
Rasiklal Chhaganlal Mehta, in 1956. The Court ruled that inter-country adoptions under Section
9(4) of the Hindu Adoptions and Maintenance Act, 1956 should be legally valid under the laws
of both the countries. Adoptive parents must comply with their country's adoption laws and must
obtain approval for adoption from the competent authorities so that children do not suffer in
immigration and obtaining citizenship in the adoptive parent's country.

 Laxmi Kant Pandey v. Union of India

*FACTS OF THE CASE

Laxmi Kant Pandey was an attorney who through a letter wrote to the Supreme Court regarding
neglect and malpractice in adoption of Indian children to foreign parents. This was done by
social organisations and adoption agencies.He mentioned the long and toxic journey these
children made to the countries And the incidences of neglect they had to go through because of
their adopted parents, sometimes also resulting in sexual exploitation of the children which was
treated as a writ petition.
*Groups involved in the case: 
Apart from the Government of India, several government agencies and social welfare
organizations (both national and international) filed affidavits and statements before the court in
this case. The institutions included the Indian Council of Social Welfare, Enfants Du Monde,
Missionaries of Charity, Enfants De L’s Espoir, Indian Association for promotion of Adoption
Kuan-yin Charitable Trust, Terre Des Homes (India) Society, Maharashtra State Women’s
Council, Legal Aid Services West Bengal, SOS Children’s Villages of India and the Bhavishya
International Union for Child Welfare. The Supreme Court explicitly acknowledged their
contribution in its judgment stating that the valuable recommendations provided for the
consideration of the Court helped the judges formulate the principles and norms to be observed
in the case of inter-country adoptions.
*JUDGEMENT 
It was brought to attention that there was no regulation of intercountry adoptions in India which
might lead to trafficking of children. For the same purpose, a comprehensive framework was
formulated for regulating intercountry adoption to have the children get a healthy family life.

CRAIG ALLEN COATES V STATE & ANR

*FACTS OF THE CASE

- The petitioners wanting to adopt a child from India the appelants were American nationals and
had 3 children, and had the desire to adopted another child to expand the family.
craig allen was suffering from cerebral palsy from his birth.

*JUDGEMENT 
 the Delhi High Court verdict that had declined permission to craig allen coates and his
wife to adopt a nine year old disabled boy and the high also expressed apprehension
about the couples decision. The court also directed the centre to constitute a committee to
decide such inter-country adoption case, especially involving disabled children in the
future. The court contented that it could not understand the intentions of the couple to
adopt an Indian child when they already have 3 children. The four-member committee
 The Supreme Court set aside both orders and rejected the contention of them wanting to
increase the family strength when they already have 3 children. The court took into
consideration that craig allen was suffering from cerebral palsy and that would restrict
him from physically spending time with the child, the court also stated that the children
of the petitioners are already pretty old and the 4th child would not have any company in
a new country and stated that the NOC was granted with no prior thinking.
 The court further stated that, After going through entire record and considering the
arguments advanced by learned counsel for appellants, it is found that there is no
ambiguity or illegality in the impugned judgment. 32. The real intention of appellants in
adopting the child who is suffering from mental delays, appears to exploit him as a
domestic help for appellant no.1, since appellant no.2 is gainfully employed as a nurse,
while appellant no.1, has been suffering from celebral palsy since birth. Moreover,
appellants are already having three children, then where is the need to further expand
their family.
 CONCLUSION

International agreements have been developed to address the changing face of

adoption. The standards and safeguards they establish are essentially directed
towards ensuring four things:
1. that the adoptability of children is always determined in the right way.
2.  that intercountry adoption is considered and carried out for the right
reasons.
3. that each child is adopted by the right person(s).
4. that the adoption is carried out in the right manner.
Inter-country or transnational adoption may become the best option for orphan
children to start a fresh life in a new country. But when the country of domicile for
these children does not have any proper law to show them their destiny, violation
of their rights is very much definite to take place. The country desperately needs
better laws and guideline for inter-country adoption. The authorities need to ensure
thorough checks of every adoption agency to ensure that they are protecting the
child’s rights as has been provided in the constitution and the Juvenile Justice Care
and Protection Act, 2006. Every child has a right to life, home and education. It is
essential that the authorities not only make laws to provide safer transnational
adoption to the children but also to ensure safety of the child even abroad.

It is a common situation in India that the judges dealing with adoption cases,
especially in small towns and cities in India, are not predominantly acquainted with
the interpretation of the inter-country adoption guidelines. Hence, in this regard, a
uniform but stringent procedure must be developed which can be easily followed
and observed keeping in regard the human spirit. As has been seen, Courts, though
slowly and steadily, are approaching every possible dimension of this issue and are
laying down norms for eliminating any legal or emotional havoc for the child or
his biological and adoptive parents.

BIBLIOGRAPHY
 https://egyankosh.ac.in/bitstream/123456789/20871/1/Unit-2.pdf
 https://www.canlii.org/en/commentary/doc/1955CanLIIDocs29#!
fragment/ROOT/
BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoAlAeSvwEoAaZ
bUwiARUUNwE9oByfgwiEwuBJ259Bw0eJABlPKQBCfCgFEAMhoBq
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 https://bnwjournal.com/2020/11/07/recognition-of-foreign-adoptions/
 https://www.familylawweek.co.uk/site.aspx?i=ed169874
 http://www.legalservicesindia.com/articles/adopt.htm
 https://www.lawctopus.com/academike/inter-country-adoption/
 https://www.lawcolumn.in/inter-country-adoption/
 https://advocatespedia.com/CRAIG_ALLEN_COATES_V_STATE_
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