Inter-country adoption is an increasingly common form of family formation. 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.
Over the last 10 years, the numbers of children who are adopted by families who live outside of the child’s birth country has more than tripled. Our increasingly globalize world is blurring the edges of racial, ethnic or national identity. No where is this phenomena more actualized than in the act of building a family through inter-country adoption.
The adoption of Indian children by foreign nationals is a controversial issue. To some people it is incomprehensible why Indian children should be sent abroad at all. This situation arises because adoption is still a bit of a stigma in India. Indians are not very open to the idea of adoption.
In foreign countries, there is the opposite problem where children are in short supply for adoption. While there are innumerable cases of Indian orphans being given a secure and loving home in another country, newspapers have reported a number of cases where the child has gone to an alien land only to be mistreated. Such children have been used as domestic servants, beggars and even for prostitution. In other cases, so-called adoption agencies have demanded exorbitant amounts from foreign nationals in consideration of giving a child in adoption and often this is under the label of maintenance charges and medical expenses supposed to have been incurred for the child. It is these cases that leave a bad taste in the mouth and make people wary of adoption by foreign nationals. In the matter of L.K. Pandey vs. Union of India, the Supreme Court of India 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.
A foreign national adopts an Indian child under the provisions of the Guardian and Wards Act, 1890. The Indian court will appoint the foreigner as the child’s guardian. The foreign national will take the child to his own country and adopt him or her as per the laws of his country.
PROCEEDURE FOR INTER-COUNTRY ADOPTION
The Supreme Court of India has laid down that every application from a foreigner/NRI/PIO (as applicable) desiring to adopt a child must be sponsored by a social or child welfare agency recognised or licensed by the Government or a Department of the Foreign Govt. to sponsor such cases in the country in which the foreigner is resident. The foreign agency should also be an agency ‘authorised’ by CARA, Ministry of Social Justice & Empowerment, Govt. of India. No application by a foreigner/NRI/PIO for taking a child in adoption should be entertained directly by any social or child welfare agency in India.
Criteria for Foreign Prospective Adoptive Parent/s (FPAP):
- Married couple with 5 years of a stable relationship, age, financial and health status with reasonable income to support the child should be evident in the Home Study Report.
- Prospective adoptive parents having composite age of 90 years or less can adopt infants and young children. These provisions may be suitably relaxed in exceptional cases, such as older children and children with special needs, for reasons clearly stated in the Home Study Report. However, in no case should the age of any one of the prospective adoptive parents exceed 55 years.
- Single persons (never married, widowed, divorced) up to 45 years can also adopt.
- Age difference of the single adoptive parent and child should be 21 years or more.
- A FPAP in no case should be less than 30 years and more than 55 years.
- A second adoption from India will be considered only when the legal adoption of the first child is completed.
- Same sex couples are not eligible to adopt
Foreign nationals living in India
In case of foreigners who have been living in India for one year or more, the HSR and other connected documents may be prepared by the RIPA which is processing the application of such foreigners for the guardianship of the child. An undertaking should be given by the concerned Embassy/High Commission that the child will be legally adopted in that country and also mention an agency/orgn. who would send the progress reports and take care of the child in case of any disruption as and when the child is taken abroad. However a certificate is required from the competent authority in the country of permanent residence of the FPAP indicating that the child shall be allowed to enter the country and get adopted in due course.
Rights of the child taken abroad
When the Court makes an order appointing adoptive parents as the guardians of the child, the order shall contain an undertaking of the adoptive parents that they shall protect and safeguard the best interest of the child and that the child would be legally adopted in the receiving State not later than two years from the date of the order. On such adoption in the receiving State, subject to the Laws of the country the child would have all rights recognized under International Law.
The required documentation for adoption cases dealing in foreign nationals is as follows:
The prospective adoptive parent(s) have to submit the required supporting documents along with their application like a recent family photograph, his marriage certificate, a declaration of the applicants’ physical fitness duly certified by a medical doctor, a declaration of the applicants’ financial status with corroborating documents such as an employment certificate, income-tax returns, bank references, and particulars of property owned by them.
Another important annexure to the application is a declaration of willingness. This document will state that the foreigner is willing to be appointed as the child’s guardian. He will also haveto furnish an undertaking that he will adopt the child in accordance with the law of the country in which he resides at the earliest, but not later than two years from the date of the child’s arrival in his country. The applicant must also declare that he will maintain the child and provide it with necessary education and upbringing according to their status. The foreign national is also required to sign an undertaking that states that he will send the Indian agency and the court a progress report and a photograph of the child monthly in the first year, quarterly in the second year, and half yearly up to five years. In addition, the foreigner is expected to sign a power of attorney in favour of an officer of the Social or Child Welfare Agency in India so that the officer can process the case.
All the certificates, declarations and documents that are attached to the foreigner’s application are required to be duly notarized by a Notary Public. The notary’s signature, in turn, will have to be duly attested either by an officer of the Ministry of External Affairs or Justice or Social Welfare of the country of which the foreigner is a resident. An officer of the Indian Embassy or High Commission or Consulate in that country can also attest the notary’s signature.
Role of the foreign welfare agency is also crucial. The Social and Child Welfare Agency sponsoring the application of the foreigner must certify that the foreigner seeking to adopt a child is permitted to as per the laws of his country. The agency must undertake to ensure the adoption of the child by the foreigner according to the law of his country within a period of two years. Once the adoption procedure is complete, it is the duty of the agency to send two certified copies of the adoption order to the Social and Child Welfare Agency in India through which the application for guardianship was processed. One copy of the adoption order will have to be filed in court and the other will remain with the Indian agency for their records. The agency sponsoring the guardianship application must also agree to send progress reports of the child to the Indian agency. These reports will be quarterly in the first year and half yearly in the following years till the adoption has been effected. The foreign agency will also have to undertake that in the event of the disruption of the adopting family before the completion of the adoption procedure, it will take care of the child and find a suitable alternative placement for it with the approval of the Indian agency. In the case of an alternative placement becoming necessary, this development will be reported to the court handling the guardianship proceedings and this information will be passed on by the court and the Indian agency to the Secretary, Ministry of Social Welfare, Government of India, New Delhi.
Leges Juris Associates ( Law Offices).. 