Adoption

The word ‘Adopt’ comes from Latin ‘adoptare’, to choose. To take by

choice into a relationship; especially to take voluntarily (a child from
other parents) as one’s own child. [1] Adoption is the act of legally
placing a child with a parent or parents other than those to whom they
were born. It 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 by
establishing a parent-child relationship between persons not so related
by the birth of the child. [2] 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.

Adoption is a complex social phenomenon, intimately knitted into its

family law framework and shaped by the pressures affecting the family in
its local social context. It is the mirror reflecting the changes in our family
life and the efforts of family law to address those changes. This has
caused it to be variously defines; different societies, in the same society
at different times and across a range of contemporary societies. [3]

In other words, it can be said as the judicial or administrative act that

establishes a permanent legal parent-child relationship between a minor
and an adult who is not already the minor’s legal parent and terminates
the legal parent-child relationship between the adoptive child and any
former parent(s). [4]

In Legal terms, adoption has been defined as:

…a legal method of creating between the child and one who is not the
natural parent of the child an artificial family relationship analogous to
that of parent and child… [5]

Or more bluntly:

… providing homes for children who need them is its primary

purpose. [6]
Who is eligible to adopt a child?
 The prospective adoptive parents should be physically, mentally and emotionally stable;
financially capable; motivated to adopt a child; and should not have any life threatening medical
condition;
 Any prospective adoptive parent, irrespective of his marital status and whether or not he has his
own biological son or daughter, can adopt a child;
o Single female is eligible to adopt a child of any gender:
o Single male person shall not be eligible to adopt a girl child;
o The consent of both the spouses for the adoption shall be required, in case of a married
couple
 No child shall be given in adoption to a couple unless they have at least two years of stable marital
relationship except in the cases of relative or step-parent adoption.
 The age of prospective adoptive parents as on the date of registration shall be counted for deciding
the eligibility and the eligibility of prospective adoptive parents to apply for children of different
age groups shall be as under

Maximum composite age of prospective adoptive Maximum age of single prospective

age
parents (couple) adoptive parent

Upto 2 years 85 years 40 years

Above 2 and Upto 4 90 years 45 years

years

Above 4 upto 8 years 100 years 50 years

Above 8 upto 18 110 years 55 years

years

 The minimum age difference between the child and either of the prospective adoptive parents
should not be less than twenty five years;
 The age for eligibility will be as on the date of registration of the prospective adoptive parents;
 The age criteria for prospective adoptive parents shall not be applicable in case of relative
adoptions and adoption by step-parent.
 Couples with three or more children shall not be considered for adoption except in case of special
need children as defined in sub-regulation (21) of regulation 2, hard to place children as
mentioned in regulation 50 and in case of relative adoption and adoption by step-parent.
Inter Country Adoption
Reckoning the subject matter in context of the domain of Public
International Law, by virtue of which the process of adoption of a child,
can assume between nationals of different states and hence the
institution of adoption has become international, crossing the borders of
the national legislations.

Inter-country adoption (ICA) can be defined as adoption of a child by a

person of another country. ICA may be more viable choice than domestic
adoption for many families especially those who want to adopt a healthy
infant. [7]

ICA began primarily as a North American philanthropic response to the

devastation of Europe in the World War II that resulted in thousands of
orphaned Children. When the European continent was rebuilt and its
economy stabilised, the problem of orphaned children was basically
solved. But a revitalized economy, coupled with a reduction in Europe’s
male population, led to an increased rate of childlessness. Western
societies then turned to Third- World countries with high birth rates for a
solution to the dearth of healthy infants in the West. This led to
evolution of the concept of ICA. [8] Considering the statistics, it is the
United States ranks first among the receiving nations, accounting for
over half of all ICAs worldwide. ICAs from developing countries happen
primarily with the demand for children increasing in developed countries
and the supply rising commensurately from the developing countries. [9]

On adhering together, the related feathers it can be said that ICA is the
process by which a person:

Adopts a child from a different country , through legal means; and

Bring the child to the home country to live permanently with.

Through ICA, the legal transfer of parental rights from birth parent(s) to
another parent (s) takes place.
Indian Perspective
Although there is no general law of adoption, yet it is permitted by a statute
amongst Hindus and by custom amongst a few numerically insignificant categories
of persons. Since adoption is legal affiliation of a child, it forms the subject matter of
personal law. Muslims, Christians and Parsis have no adoption laws and have to
approach court under the Guardians and Wards Act, 1890. Muslims, Christians and
Parsis can take a child under the said Act only under foster care. Once a child under
foster care becomes major, he is free to break away all his connections. Besides, such
a child oes not have legal right of inheritance. Foreigners, who want to adopt Indian
children have to approach the court under the aforesaid Act. In case the court has
given permission for the child to be taken out of the country, adoption according to
a foreign law, i.e., law applicable to guardian takes place outside the country. So
following is the brief analysis of Indian laws governing adoption and also the
provisions relating to ICA.

The Hindu Adoptions and Maintenance Act,

1956 (HAMA)
It is the only statute in force governing adoption of children and its ambit is confined
to Hindus in India. There is a legal vacuum as regards adoption by or of other
communities in India. Indian citizens who are Hindus, Jains, Sikhs, or Buddhists are
allowed to formally adopt a child. The adoption is under the Hindu Adoption and
Maintenance Act of 1956. This act is the only statute in force governing adoption of
children and its ambit is confined to Hindus [14] . Under this act a married man, a
widow, a widower, single women, or a divorced or deceased women has the capacity
to adopt, if they are Hindus [15] .
Adoption laws of India for Foreign
Nationals:
Adoption of Indian children by foreign nationals or
International Adoption is a controversial issue. In foreign
countries there are innumerable cases of Indian Orphans
being given secured and loving homes. But on the other
hand some of the children have been used as domestic
servants, beggars and even for prostitution. In the
matter of L.K. Pandey v. Union of India, [17] SC has laid
down certain guidelines that have to be followed in the
case of foreign adoption in an attempt to safeguard the
interests of the children. Foreign Nationals adopt an
Indian child under provisions of the Guardian and wards
Act, 1890. Indian Court will appoint the foreigner as the
Childs guardian. The foreign National will take the child
to his country and adopt him or her as per laws of his
country.
COMPARATIVE
ANALYSIS OF
THE LEGAL
PROVISIONS
India
In India there is paucity of
legislations regarding ICA.
The main laws regulating ICA
derives its
authority and validity from
Judicial Pronouncements and
CARA Guidelines. The
Government of
India, in pursuance of its
constitutional mandate, has
evolved a National Policy for
the welfare of
children. The thrust of this
policy is summed up in the
following words: “The
Nation’s children
are a supremely important
asset. Their nurture and
solicitude are our
responsibility. Children’s
programmes 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."
There is no express provision
regarding ICA and India is
now a signatory to Hague
Convention
of 1993. India has signed the
treaty in 2003
The “Revised Guidelines for
the Adoption of Indian
Children-1995" were issued by
the Govt. of
India on 21st May’1995 and it
has now been decided to
further revise this Guidelines
keeping in
view the developments such as
the ratification of the Hague
Convention on Inter-country
Adoption-1993 by India on
06.06.2003 etc. since then. [
COMPARATIVE
ANALYSIS OF
THE LEGAL
PROVISIONS
India
In India there is paucity of
legislations regarding ICA.
The main laws regulating ICA
derives its
authority and validity from
Judicial Pronouncements and
CARA Guidelines. The
Government of
India, in pursuance of its
constitutional mandate, has
evolved a National Policy for
the welfare of
children. The thrust of this
policy is summed up in the
following words: “The
Nation’s children
are a supremely important
asset. Their nurture and
solicitude are our
responsibility. Children’s
programmes 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."
There is no express provision
regarding ICA and India is
now a signatory to Hague
Convention
of 1993. India has signed the
treaty in 2003
The “Revised Guidelines for
the Adoption of Indian
Children-1995" were issued by
the Govt. of
India on 21st May’1995 and it
has now been decided to
further revise this Guidelines
keeping in
view the developments such as
the ratification of the Hague
Convention on Inter-country
Adoption-1993 by India on
06.06.2003 etc. since then. [
COMPARATIVE
ANALYSIS OF
THE LEGAL
PROVISIONS
India
In India there is paucity of
legislations regarding ICA.
The main laws regulating ICA
derives its
authority and validity from
Judicial Pronouncements and
CARA Guidelines. The
Government of
India, in pursuance of its
constitutional mandate, has
evolved a National Policy for
the welfare of
children. The thrust of this
policy is summed up in the
following words: “The
Nation’s children
are a supremely important
asset. Their nurture and
solicitude are our
responsibility. Children’s
programmes 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."
There is no express provision
regarding ICA and India is
now a signatory to Hague
Convention
of 1993. India has signed the
treaty in 2003
The “Revised Guidelines for
the Adoption of Indian
Children-1995" were issued by
the Govt. of
India on 21st May’1995 and it
has now been decided to
further revise this Guidelines
keeping in
view the developments such as
the ratification of the Hague
Convention on Inter-country
Adoption-1993 by India on
06.06.2003 etc. since then. [
COMPARATIVE
ANALYSIS OF
THE LEGAL
PROVISIONS
India
In India there is paucity of
legislations regarding ICA.
The main laws regulating ICA
derives its
authority and validity from
Judicial Pronouncements and
CARA Guidelines. The
Government of
India, in pursuance of its
constitutional mandate, has
evolved a National Policy for
the welfare of
children. The thrust of this
policy is summed up in the
following words: “The
Nation’s children
are a supremely important
asset. Their nurture and
solicitude are our
responsibility. Children’s
programmes 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."
There is no express provision
regarding ICA and India is
now a signatory to Hague
Convention
of 1993. India has signed the
treaty in 2003
The “Revised Guidelines for
the Adoption of Indian
Children-1995" were issued by
the Govt. of
India on 21st May’1995 and it
has now been decided to
further revise this Guidelines
keeping in
view the developments such as
the ratification of the Hague
Convention on Inter-country
Adoption-1993 by India on
06.06.2003 etc. since then. [
conclusion
There has always been a tussle between the two acts & their legitimacy.
The recent legislative modifications bring provisions with regards to
adoption via introducing more universally acceptable adoption law
instead of the earlier rigid Hindu Adoptions & Maintenance Act, 1956
and Guardians of the Ward Act, 1890.

There were many challenges under HAMA regarding the inter-country

adoption process. It was an arduous and laborious process to get a
NOC from the court when adoptive parents got a job in a different
country and because of the delays in NOC, it was difficult for them to
shift in time. The Ministry of Woman & Child Welfare stated that they
have made this process easier by transferring the NOC authority from
the court to CARA, and they can further ensure the other monitoring
factors for child custody as well.
Adoption Amendment Regulations, 2021 streamlines adoption
procedures for orphans, abandoned & surrendered children, and the
existing Central Adoption Resource Authority. Also, as per the
guidelines of the ministry, we are looking forward to the new
framework regulations under Hindu Adoptions & Maintenance act by
CARA. This legislative framework would certainly bridge the gap
between different adoption laws in India and will harmonize the law
regarding inter-country adoption.