This post has been written by Parishkriti Atri, a first year law student pursuing LL.B. (H) from Amity Law School, Noida.
ADOPTION UNDER INDIAN LAW
“Your world may not change if you adopt a child, but the world of the child will change if you adopt them.”
Adoption under Indian law comes under the purview of personal law wherein Hindu, Buddhist, Jaina or Sikh by religion can make a legal adoption under Hindu adoption and maintenance act, 1956. In India, adoption is not recognised by Muslims, Christians and Parsis, so they have to approach court under the Guardians and Wards Act, 1890 for legal adoption. The Juvenile Justice (Care and Protection of Children) Act of 2015, includes the rehabilitation and social reintegration for orphaned children.
Section 2 of the Juvenile Justice (Care and Protection of Children) Act, 2015defines adoption as the “process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of his adoptive parents with all the rights, privileges and responsibilities that are attached to a biological child”
- Central Adoption Resource Authority (CARA) – CARA ensures smooth functioning of the adoption process from time to time, issues Adoption Guidelines laying down procedures and processes to be followed by different stakeholders of the adoption programme.
- State Adoption Resource Agency (SARA) – State Adoption Resource Agency acts as a nodal body within the State to promote and monitor adoption and non-institutional care in coordination with Central Adoption Resource Authority.
- Specialised Adoption Agency (SAA) – Specialised Adoption Agency (SAA) is recognized by the State Government under sub-section 4 of section 41 of the Act for the purpose of placing children in adoption.
- Authorised Foreign Adoption Agency (AFAA)- Authorised Foreign Adoption Agency is recognised as a foreign social or child welfare agency that is authorised by Central Adoption Resource Authority on the recommendation of the concerned Central Authority or Government Department of that country for coordinating all matters relating to adoption of an Indian child by a citizen of that country.
- District Child Protection Unit (DCPU) – District Child Protection Unit (DCPU) means a unit set up by the State Government at district level under Section 61A of the Act. It identifies orphan, abandoned and surrendered children in the district and gets them declared legally free for adoption by the Child Welfare Committee.
CRITERIA FOR ADOPTION-PARENTS
The eligibility criteria for prospective adoptive parents as mentioned by CARA and Adoption Regulations 2017, are:
- Physical, mental and emotional stability, financially capable and not having any life-threatening medical condition.
- Required to have at least two years of stable marital relationship and a mutual consensus to adopt.
- A single male cannot adopt a girl child but a single female can adopt a child of any gender.
- A child up to 4 years of age can be adopted by a couple having a combined age of 90 years (maximum), for a child above 4 and up to 8 years of age the maximum age (combined) of the couple shall be 100 years, and for a child of age above 8 And up to 18 years the maximum combined age of the couple shall be 110 years.
- The minimum age difference between the child and either of the prospective adoptive parents should not be less than 25 years.
CRITERIA FOR ADOPTION-CHILDREN
Under the guidelines of the Central Government of India, any orphan, abandoned or surrendered child, declared legally free for adoption by the child welfare committee is eligible for adoption.
A child is said to be an orphan when the child has no legal parent or a guardian or the parents are incapable of taking care of the child anymore.
A child is considered abandoned after being deserted or unaccompanied by parents or a guardian and the child welfare committee has declared the child to be abandoned.
A surrendered child is one who has been relinquished on account of physical, social and emotional factors which are beyond the control of parents or the guardian and is so declared by the child welfare committee.
In order to be adopted, a child needs to be “legally free”. On receipt of an abandoned child, the District Child Protection Unit puts up an alert with the child’s photograph and details in state-wide newspapers and requests the local police to trace the parents. The child is considered legally free for adoption only after the police have given a report stating that the parents of the child are non-traceable.
CHOOSING YOUR CHILD
An adoptive parent can list their preferences in a child. For example a parent may ask for a child of a certain age, gender (if it is the first child in the family), skin colour, religion, health condition(They can choose to adopt a child with a disability), etc. However, more the specifications, greater difficulty there is to find a child who conforms to them. This restricts the pool of children available for adoption.
Children are scrutinised to find a suitable match based on the desired details of the adoptive parent. When a child with the desired characteristics is found, she/he is shown to the prospective parents. In case the parents are unhappy with the selection, about two more children with the same characteristics may be presented to the parents.
RIGHTS OF THE ADOPTED CHILD
A child adopted under the Hindu Adoption and Maintenance Act, 1956 can take the name of their parents or inherit their property by right. However, the Guardians and Wards Act, 1890 confers only a guardian-ward relationship. This legal guardian-ward relationship exists until the child completes 21 years of age. Foreigners who seek to adopt an Indian Child, do so under this Act to assume legal Guardianship of the child, after giving an assurance to the court, that they would legally adopt the child as per the laws of their country, within two years after the arrival of the child in their country.
- Current family photograph/ photograph of the couple or person adopting a child
- PAN Card of the prospective adoptive parents
- Birth certificate/Proof of date of birth of the prospective adoptive parents
- Proof of residence (aadhar card/ voter card/ passport/current electricity bill/telephone bill)
- Proof of income of last year (salary slip/income certificate issued by Govt. department/income tax return)
- Certificate from a medical practitioner certifying that the prospective adoptive parents do not suffer from any chronic, contagious or fatal disease and they are fit to adopt (In case of married couple, upload Medical Certificate of both the applicants)
- Marriage certificate
- Divorce Decree/Declaration from the competent court or affidavit on oath pertaining to divorce in case of divorce governed by personal law where decree of divorce is not mandatory/Death certificate of spouse in case of single prospective adoptive parent (if applicable).
- Two reference letters from acquaintances or relatives in support of adoption.
- Consent of the older child/children in the adoptive family (if more than 5 years)
Source: Documents Required-CARA
PROCEDURE OF ADOPTION
1) Registration: The adoptive parents have to register themselves with an adoption agency closest to their residence which are Recognized Indian Placement Agencies (RIPA) and Special Adoption Agency (SAA). The registration form has to be filled, along with the necessary documents, upon which they will be provided with a registration slip. This process can also be done online through the website of CARA. Once their request has been processed, their name will be added to the waiting list of the centre.
An application needs to be made to the SAA if they want to adopt a child from a child care centre other than the one they have registered. For adoption from another state, the State Adoption Resource Agency (SARA) or Adoption Coordinating Agency (ACA) of the concerned state have to be approached.
2) Pre-Adoption Process: The concerned authorities will guide them with all the procedures that are involved in adopting a child. They will also get counselling from experienced counsellors on adoption and parenting.
3) Home Examination: A home examination will be done by a competent social worker within a maximum period of 2 months from the date of registration. They will be required to furnish a medical examination report, which should not be more than 1 year old at the time of referral of the child.
4) Assigning a Child: An Adoption Committee will look into the eligibility of the prospective adopting parents and find a child who matches the requirements provided by them. On finding a suitable child, the SAA will allow them to visit the centre and see the child. If they are ready to adopt the chosen child, then they will have to give their acceptance by signing the medical examination report and the child study report that is furnished by the SAA. They will need to provide their local contacts to the agency and follow all the rules laid down by the authorities and the courts. Before a full-fledged adoption, the child may be placed in foster care with adoptive parents. Once the governing authority is satisfied with their ability to adopt, the child will be legally placed in their care and they will become the new parent of the child.
IF PARENTS AND CHILD ARE UNABLE TO ADJUST
In such cases, the Specialised Adoption Agency or District Child Protection Unit arrange a counselling session for the adoptive parents and adoptee. Non-adjustment of the child with the family despite efforts through counseling can lead to disruption (the child being unmatched from the adoptive family due to problems in adjustment of the child with them, before the legal process of adoption is completed) or dissolution (Non-adjustment of the child after the court decree for the adoption) of adoption.
- Agrawal,Romit, Adoption: Under Hindu, Muslim, Christian And Parsi Laws – Requirements for a valid adoption, Legal services India, www.legalserviceindia.com/articles/hmcp_adopt.htm
- Overview of Child Adoption process in India, Vikaspedia, https://vikaspedia.in/social-welfare/women-and-child-development/child-development-1/child-adoption/adoption
- Central adoption resource authority, cara.nic.in/Parents/eg_ri.html
- Arora, Mahak, Child adoption in India: rules, process and laws, first Cry Parenting, (August 6,2019), https://parenting.firstcry.com/articles/a-complete-guide-to-child-adoption-in-india/
- Choudhary, Disha Roy, Girl child is adopted more in India. All you need to know on adoption, from CARA, The Indian Express, (December 13,2019), https://indianexpress.com/article/parenting/family/child-adoption-cara-india-girl-all-you-need-to-know-6153189/
- Adoption Rules in India, India Parenting, https://www.indiaparenting.com/adoption/4_1347/adoption-rules-in-india.html
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