Article and Research by Our Indian Correspondent.

General Information and Background :

Inter-country adoption of homeless Indian children is governed by an extensive set of rules which are basically drawn up with the intent of safeguarding the interest of the child.  While there is a whole infrastructure in place to assist in inter-country adoption, in-country adoption is encouraged most.

It might be interesting to note that there are agencies all over India covering a whole gamut of metros (Bombay, Calcutta, Bangalore, Delhi, Madras) and townships (ranging from Mangalore and Cochin to Ahmedabad and Cuttack).  Even so the largest number of inter-country adoptions have been from the Missionaries of Charity in Calcutta (174 up to June, 2000) followed variously by the Delhi Council of Child Welfare (77), the Nirmala Shishu Bhavan also in Delhi (61), the Bal Vikas Shishu Bhavan in Bombay (62), Calcutta's Indian Society for Rehabilitation of Children and Pune's Bharatiya Samaj Seva Kendra (58 each) and the International Mission of Hope (India) Society (50).  These figures are only a comment on the general statistical trend - there are a large number of other listed agencies which are considered no less reputed, perhaps just less accessed.

Why things are done the way  they are done :
(the intent behind the legislation and procedures)

The Government's Outlook :

A series of judgments were laid down by the Supreme Court of India which agreed that adoptions offer the most comprehensive and compassionate venue for the care of abandoned, destitute, neglected and orphaned children both in terms of their physical requirements and in terms of their emotional needs.  Besides giving a forsaken child the chance to realize his/her true potential secure in the love of a family, it also prevents the victimization of children from the ugly spectre of abuse, exploitation, ill-health, malnutrition and the attendant maladjustment of being pushed out of mainstream society.

The thrust of the National Policy for the Welfare of Children is summed up as follows: "The nation's children are a supremely important asset.  Their nurture and solicitude are our responsibility. Children's programme 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 motivations needed by society.  Equal opportunities for development to all children during the period of growth should be our aim, for this would serve our large purpose of reducing inequality and ensuring social justice."

The role of CARA (Central Adoption Resource Agency) :

The Central Adoption Resource Agency (CARA), set up in 1990 with the specific intent of dealing with all matters concerning adoption in India, allows inter-country adoption only after ensuring no Indian child is given for it without the child being considered first by Indian families, residing in India.  CARA is headquartered in Delhi, is headed by a committee comprising members from all institutions involved in the adoption procedure, is reviewed and funded by the government and acts as the nodal centre of all information pertaining to the adoption of each and every child in or from India. At the end of every quarter, a list is submitted by the recognized Indian agencies regarding the number of children given for in-country adoption, the number of children given for intra-country adoption and the number of children awaiting adoption.  CARA safeguards the guidelines issued in May 1995 following the directions given by the Supreme Court, which guidelines are amended and updated from time to time, always trying to protect the interests of the adopted child.

The Role of Non-Government Organizations :

Towards the achievement of the lofty ideals laid out by the Supreme Court and supported by the National Policy for the Welfare of Children, the role of voluntary organizations has also been greatly stressed.  Under pressure from the lack of resources and infrastructure, the Government understands that it can do better by assisting (via legislation, policy decisions and funding) the voluntary, Non-Governmental, charitable organizations and their work.

Subsequent to the adoption of the Declaration of the Rights of the Child in the General Assembly of the United Nations in 1989, the subject of the welfare of a child has been repeatedly and universally discussed and debated besides being ably supported and reported upon by  the world media.

Why Adoption is the Best :

It has been agreed that the family or an environment as close to the family as possible is the best for a child.  But since the family sometimes doesn't survive either due to natural causes or social changes, it becomes the responsibility of the community, the society and the State to ensure a child is given the best non-institutional alternative to a natural family - the Government of India recognizes adoption as the best non-institutional support which can possibly be arranged for a child.

Why In-Country Over Intra-Country : 

Given that adoption is the best manner of providing all-round care for the destitute child, it has been accepted that

(a) A child's best interests are served by allowing him/her to be nurtured in his/her natural social milieu.

(b) The facilities available within India have proven to be inadequate to handle the care of the growing legion of children needing care.

(c) There is a  pressing need to curb private/extra-legal/unsupervised/motivated-by-profit adoption activities alongside the need to make the best use of the available resources.

(d)  The Government's role has been therefore defined as the authority which takes up the onus of facilitating in-county adoption and regulating intra-county adoption.

(e) It is required of an Indian placement agency to find homes within the country for at least 50% of its children, annually - the only exceptions allowed being with handicapped children, those with urgent/critical medical problems, those over 6 years of age and siblings.  The following priority system is followed when giving children for adoption: 

a. Indian families in India.

b. Indian families abroad.

c. One parent of Indian origin abroad.

d. Totally foreign.

e. An Indian family living abroad will be considered Indian from the origin of adoptive parents point of view (that is the same as in-country cases) and be entitled to the same preferential overview.  But the manner in which they apply and the procedural system (given elsewhere below as under the "steps taken" segment) will remain the same as for foreigners.

The Procedural Requirements :

CARA lists approximately 290 foreign agencies across the world who are primarily authorized to sponsor specific, prospective adoptive parents to those agencies within India which have been empowered by CARA as recognized placement agencies.  The foreign agencies will forward valid applications, supported by the relevant documents to a suitable Indian agency who will then expedite the acquisition of a clearance from CARA besides a final court order to complete the procedure.

The Documents Needed :

The following is the list of documents required from foreign adoptive parents and Social or Child Welfare Agency enlisted by Government Of India for consideration of an inter-country adoption application of Indian Child:

a. Home Study Report of the foreign adoptive parents prepared by a professional worker.

b. Recent photographs of the adoptive family.

c. Marriage certificate of foreign adoptive parents.

d Declaration concerning health of adoptive parents.

e. Certificate of medical fitness of adoptive parents duly certified by a medical doctor.

f. Declaration regarding financial status of foreign adoptive parents along with supporting documents including employers certificate, where applicable.

g. Employment certificate, if applicable of foreign adoptive parents.

h. Income Tax Assessment order of foreign adoptive parents.

i. Bank references.

j. Particulars of the properties owned by the foreign adoptive parents.

k. Declaration from foreign adoptive parents stating willingness to be appointed guardian of the child.

l. Undertaking from the social or child welfare enlisted agency sponsoring the foreigner to the effect that child would be legally adopted by the foreign adoptive parents according to the law of the country within a period not exceeding two years from the time of arrival of the child and as soon as the adoption is effected.  Social or child welfare enlisted agency will send three certified copies of adoption order each to the social or child welfare agency in India through which the application for guardianship is processed for filing in the Court and one copy to Central Adoption Resources Agency, Ministry of Welfare.

m. Undertaking from the foreign adoptive parents that adopted child would be provided necessary education and upbringing according to the status of adoptive parents.

n. Undertaking from the social and child welfare enlisted agency that report relating to progress of the child along with his/her recent photograph would be sent quarterly during first two years and half yearly for the next three years in the prescribed performa through Indian's Diplomatic Missions abroad.

o. Power of Attorney from foreign adoptive parents in favour of offices of the social or child welfare agency in India which will be required to process the case and such Power of Attorney should authorise the Attorney to handle the cases on behalf of the foreigner in case the foreigner is not in a position to come to India.

p. Certificate from the enlisted social or child welfare agency sponsoring application of the foreigner to the effect that adoptive parents are permitted to adopt a child according to the law of their country.

q. Undertaking from the social or child welfare enlisted agency to the effect that in case of disruption of the family of the foreigner before legal adoption has been affected, it will take care of the child and find a suitable alternative placement for the child with the approval of Central Adoption Resource Agency.  After seeking the necessary approval from CARA it will report alternative placement to the concerned court handling guardianship proceeding in the foreign country.  And such information shall be passed on by the court to the Central Adoption Resource Agency.

r. Undertaking from the social or child welfare enlisted agency that it will reimburse all expenses to the concerned Indian Social or Child Welfare agency as fixed by competent court towards maintenance of the child and processing charge fees

Additional Important Instructions :

1. The Home Study Report should broadly include information in regard to the various matters set out in Annexure "A" (discussed further below) though it need not strictly adhere to the requirements of the Annexure.  It should also contain an assessment by the social or child welfare agency as to whether the foreigner wishing to take a child in adoption is fit and suitable and has the capacity to parent a child coming from a different racial and cultural milieu and whether the child will be able to fit into the environment of the adoptive family and the community in which it lives.

2. All the above Certificates and declaration documents must accompany the application of the foreigner for taking a child in adoption should be duly notarised by a Notary Public whose signature should be duly attested either by an officer of the Ministry of External Affairs on Justice or Social Welfare of the country of the foreigner or by an officer of the Indian Embassy or High Commissions or Consulate in that country.

Procedural Safeguards :

I. The Role of the Indian Diplomatic Missions :

To assure itself that no child is taken overseas and then subjected to abuse/neglect/malnutrition/exploitation the CARA, besides various other measures (discussed further under the "what happens after surrender" below) also requires every potential foreign adoptive parent to report his contact specifics ASAP or compulsorily at the end of every quarter.  The intention is to ensure "unobtrusive supervision". 

II. Periodical Review :

All the placement/voluntary coordinating / scrutinizing agencies meet every year under the aegis of CARA to discuss and smoothen out glitches in the existing apparatus.

III. Special (additional) Proviso for Intra-Country Adoption :

1. No Personal Contact with Placement Agencies :

Every application from a foreigner has to be sponsored by a social or child welfare agency recognized by the government of which the foreigner is a resident and appearing on the list (given elsewhere in this article) maintained by CARA.  Direct personal interaction between the individual overseas with any Indian agency involved in adoption is forbidden.

2.  The Home Study Report and the Importance of Documentary Evidence :

The Home Study Report being a crucial document is required to be sent by the foreign approved agency along with copies of all the prescribed documents, attested by a Notary Public residing in that country, to the CARA as well (other than to the Indian liaising agency).  The HSR must include:

a. Social Status and family background;

b. Description of Home;

c. Standard of living as it appears in the Home.

d. Current relationship between husband and wife;

e. Current relationship between the parents and children (if any children);

f. Development of already adopted children (if any).

g. Current relationship between the couple and the members of each other's family;

h. Employment status of the couple;

i. Health details such as clinical test, hear condition, past illness etc. (medical certificate etc.)

j. Economic status of the couple;

k. Accommodation for the child;

l. Schooling facilities;

m. Amenities in the Home;

n. Reasons for wanting to adopt an Indian child;  

o. Attitude of grant-parent and relatives towards Adoption;

p. Anticipated plans for the adoptive child;

q. Legal status of the prospective adoptive parents.

3. The NOC :

Even after the above documentation is in place the placement agency will proceed only after getting the case-specific NOC (No Objection Certificate) from CARA (usually done within 5 weeks of the CARA receiving the documents).  Reasons for rejection, if such rejection takes place, are usually given to the Indian placement agency by CARA.

4. The following sequence of events then takes place :

a. After they receive the relevant documents the Indian placement agency will register the name of the potential foreign parents in a register meant for them.

b. They will compare the Home Study Report with the Child Study Reports they maintain and secure suitable matches.

c. Once a match is found the placement agency will seek the clearance from the Voluntary Coordinating Agency.

d. With the clearance in hand they will then send across the Child Study Report together with the photograph of the child, his/her medical report to the foreign placement agency for the approval of the prospective parents.

e. Once their approval is in place, CARA's role begins - they will now have to clear that particular child for inter-country adoption after ensuring that all the efforts made to find that child a home in India have failed.  The recognized placement agency will provide all the necessary information along with a clearance from the Voluntary Coordinating Agency - these should be adequate to convince CARA that inter-country adoption is in the best interests of the said child.

f. Now the placement agency will get the case processed by court to award the custody of the child to the foreign national.  For this a scrutinizing agency has to clear the case after going through all the relevant documents and circumstances to ensure that inter-country adoption is in the best interests of the child.  The relevant competent court then awards the guardianship of the child to the foreign parents, within the stipulated time and based on the testimony of the scrutinizing agency.

g. The placement agency then seeks a passport from the Regional Passport Office for obtaining a valid Indian Passport for the child.  Then a visa is secured from the relevant Embassy/High Commission of the concerned country for the child, prior to the departure of the child to the new country of residence either with an escort or with the new parents.

5. Children with Special Needs :

In the case of handicapped children or those needing urgent medical care or those over 6 years of age, the NOC from CARA is issued within a week.  The concerned placement agency can apply to CARA without waiting for locating prospective adoptive parents and also begin the search for responsible families by initiating correspondence with recognized foreign agencies.  The Supreme Court guidelines keep the procedural requirements just the same but authorize the need to expedite matters with greater urgency.  The one additional documentary evidence required to be procured by the placement agency will be a certificate from the Chief Medical Officer of a Government Hospital giving details of the health of the child.

6. In the Absence of a Listed Agency Overseas :

If there is no recognized foreign placement agency of a particular country in CARA's lists the prospective parents from that particular country should interact directly with CARA who refers them to a suitable Indian placement agency - the rest of the procedure remains the same.

IV What happens when the child is surrendered and how :

1. The role of the biological parents and the protection of their rights

The procedure of the surrender of the child begins by informing the biological parents of the effects of their agreeability to the adoption of their child and also to counsel them on the alternative venues of care available should they wish to change their mind.

- It becomes the duty of the placement agencies to ensure that they are not coerced/compelled in anyway, nor paid any compensation of any kind by any agency concerned. 

- Their preference for the religious upbringing of the child may be respected but should not come in the way of what is ultimately the best possible option for the child.

- They are given 60 days to think over their decision even after the signing of the surrender document.  Within this time they may change their mind and reclaim their child but after the lapse of the 60 days the agency becomes free to hand over the child for in or inter country adoption.

- As far as possible the surrender document should be executed on stamped paper and in the presence of two re-callable witnesses.  The onus of proving the authenticity of the surrender document lies on the placement agency.  The agency can best do this by getting both the parents to sign the relinquishment document and get the death certificate if one of the parents is dead.  For a child born out of wedlock, only the mother has the right to surrender the child.  If the surrender is done by a person other than the biological parents then the surrender is treated the same way as in the case of an abandoned child [here every effort is made by the police authorities to locate the biological parents even as the agency which found/was given the child moves the Juvenile Board/Court to release the child for adoption - a procedure expedited with police consent (within 6 weeks for a child under 2 years and within 3 months in the case of a child over that age) if the authorities have been unable to locate the child in spite of all the efforts required to be taken by the law].

2. The Relevance of the Birth Certificate:

Ordinarily, every child must have a birth certificate.  In the case of abandoned children the birth certificate is applied for by the placement agency after adoptive parents are found.  All evidence (including a medical assessment by the Chief Medical Officer of a Government Officer) pertaining to the age of the child is handed over to the relevant Magistrate after being attested by a responsible person belonging to the Agency.  Based on the Magesterial order the birth certificate is issued by the relevant authority. This way the name of the adoptive parents appears in the birth certificate document.

For a child who is already three and not yet adopted and may never be so accepted, the agency  may choose to keep a certificate ready by having one or more responsible individuals of the agency acting as parents (for the purposes of documentation) till such time the child is adopted or attains maturity, whichever may be earlier.  The court which passes this first order will pass a second one including the names of the adoptive parents once the child is successfully placed for adoption.

3. The Costs to be Borne by the Adoptive Parents for Inter-Country Adoption :

The placement agencies are approved voluntary organizations run on no-profit lines alone.  They, however, do have the right to recover the cost of adoption/procedures thereof from the adoptive parents, which could be as follow s:

a. Medical costs for the treatment of the child against duly certified vouchers and bills.

b. The procedural costs of certification/documentation - legal expenses, administrative expenses, passport and visa costs, preparation of reports, photographs, conveyance costs and such other moneys not exceeding Rs. 10,000/-.  Anything more than this will have to be approved by the Supreme Court of India.  Maintenance/medical costs can be recovered at the rate of Rs.100/- per day from the date on which the child is selected by the adoptive parents till such time they are appointed as guardians and take the custody.
c. The cost of travel of the child from India, along with the cost of an escort if the agency is not able to provide for it, can be charged to the adoptive parents.  But this happens only if they do not come in person and take the child themselves, as per their personal arrangements.

d. If for some reason the adoption gets disrupted, the cost of repatriating the child to India has to be borne by the adoptive parents or their estate, if no suitable alternative could be found in the same foreign country, with the agreement of the Indian agency.

e. Agencies on both the ends found to be charging excessively will be given a chance to explain  themselves but should they be found to be erring/profiting monetarily from the adoption efforts, they will be de-listed by CARA.

4. How the rights of the child are protected once its sent abroad and what is required to be done by the foreign adoptive parent together with the foreign enlisted agency :

a. The child is understood to acquire the same rights as a natural born child (including nationality, succession and inheritance) of the adoptive parents, once it has been adopted by that foreign citizen.

b. If for some reason the child is not legally adopted in the country to which it is taken within two years of the order being passed by the Court in India, due either to some unforeseeable disruption or due to the inability of the family to adjust with the child, the foreign agency is required to immediately withdraw the child from the designated family and find an alternative placement for the child, caring for it in the meanwhile.

c. All the recognized foreign agencies are required to send a copy of their annual report to CARA every year.

d. The foreign agency will have to send photos of the child along with follow-up reports via Indian Diplomatic Missions every quarter for the first two years and on a half-yearly basis for the next three to CARA and to the Court which awarded the guardianship and to the Indian placement agency (an yearly photo album of the child with the new parents will have to be sent as well to CARA).

e. The foreign agency should maintain contact with the adoptive family even after the adoption is legalized, providing support and counseling, respecting both the need of the family for privacy and the need of the child for someone watching out for it.

f.  The foreign agency should co-operate and assist in enabling the Indian Diplomatic Mission to arrange get-togethers (likely on 15th August - the Indian Independence Day, 14th November - Children's Day, 2nd October - Gandhi Jayanti, 26th January - Republic Day and so on in which functions CARA may also participate) for enabling the child to keep in touch with his/her Indian ethos.

These are the areas of the foreign agency functions where the individual adoptive family becomes directly involved.  The reason for these elaborate procedures is not to question the legitimacy of the intentions of the adoptive family or their commitment to the noble cause of giving a forsaken child a secure home. It is only to ensure that just because a child has no biological relative responsible for it, it should not fall prey to irresponsible individuals or shabby/hurtful treatment, that too, quite literally, in a land so far away.  The adoptive family is warned that the procedure can frequently be tedious and trying but there is definitely a pot of gold (brimming with challenges and achievements, contentment and happiness) at the end of this many hued rainbow.

Conclusion :

I once attended a lavish first year birthday party for a child who had been adopted - by friends who had tried but were told they may never have a family of their own.  Little Anamika was all of three months old when she came into the life of her new parents and they were soon left wondering what a pointless existence they had been living without her lively presence in their home.  Soon thereafter, by some impossibly improbable miracle, Anamika's new Mom was expecting her biological baby...did she feel remorse?...was she wondering at Anamika's presence with mixed feelings?  When asked she said, "Not at all...my first child brought me the luck of a second one!"  Once she had been saved from a life of destitution by her new family, Anamika was now doing them as much a favor by the sheer joy of her being.  That is the very essence of adoption - though no trophies are awarded, everyone wins.



© The Law Office of Sheela Murthy, P.C.