NAVIGATING ADOPTION IN INDIA: LEGAL FRAMEWORK AND CHALLENGES

AUTHOR: RAISA DUTTA, FAIRFIELD INSTITUTE OF MANAGEMENT AND TECHNOLOGY, GGSIPU.

This article deals with the legal framework and the challenges surrounding adoption in India. It looks into the key legislation, such as the Hindu Adoption and Maintenance Act, the Juvenile Justice Act, and the role of CARA in regulating the adoption process. The article includes eligibility criteria, procedural complexities, and challenges encountered by prospective adoptive parents; these include bureaucratic hurdles, delays, and return of adopted children. It underscores support structures for adoptive families in counselling, financial facilitation, and community support. This article sums it all by pointing out how adoption brings to children much-needed love, focusing on the streamlining of this process as the challenges experienced today are better appreciated as only temporary while the system will continue to take its fair course.

Keywords 

Adoption, Legal Framework for Adoption In India, Hindu Adoption and Maintenance Act

A parent-child relationship begins in the womb of the mother. As the child grows, the bond deepens further and grows stronger. Such parent-child relationships are biological. However, some couples wish to become parents by following a process different from the natural one. What is that process, you wonder? Adoption.

Sometimes, surrounding circumstances such as medical reasons, family pressure, etc., necessitate couples to opt for Adoption. Not only couples but even unmarried, divorced, and widowed persons can consider Adoption.

There are more than 30,000 children in India waiting for Adoption, and there are only 2000 Hindu’s every year. The legal and procedural complexities often slow down the procedural formalities, strengthening the need for awareness. Since Adoption brings a ray of new hope to the prospective parents and enriches their lives along with that of the adopted child, let us understand the legal aspects and curveballs that the former has to deal with in India. 

As can be seen, the road to adoption is filled with obstacles. These obstacles delay the adoption process and bring the lives of interested parties to a standstill. Let's have a look at these challenges at length:

⦁ Complex Procedure

Adoption is a time-consuming and complex procedure in India. With the numerous steps involved in approving an application, years pass before orphaned, surrendered, or abandoned children find a home to live happily. The data collected from the CARA signifies the grim reality- out of 30,000 applications to adopt a child, only 2,131 children are eligible to be freely adopted. A significant portion of the orphaned children have special needs that remain unmet.

⦁ Returning Children Post Adoption

A trend of returning children post-adoption in India has been observed in the last decade. In 2020, CARA disclosed that close to 1,100 adopted children were returned by their adoptive parents in five years. This practice is scary, to say the least. Not only does it wreak havoc on a child's mental and physical well-being, but it defeats the intent behind allowing the scope of adoption. Parents should not step back from their responsibility once the decision has been made.

Disability affecting the Adoption stage of the children available for Adoption needs due to their disabilities. Such disabilities dilute their chances of getting adopted since prospective parents wish to adopt healthy and fit children. Children with special needs suffer heavily owing to this without any fault of theirs.

⦁ Manufactured Orphans and Child Trafficking

Children are adopted illegally by agencies and trafficked to remote corners of the world for prostitution, slavery, child marriage, etc. Several agencies also take advantage of the vulnerabilities of biological parents and push them to abandon their children in exchange for money or lucrative offers, either in the form of a lavish lifestyle or fancy compensation.

Support Systems and Resources for Adoptive Parents

While the framework of law and procedures are of utmost importance, the support and resources available to prospective adoptive parents are also very important.

Legal Framework for Adoption in India

The process of Adoption is very ancient because the biological parent’s hand over the child and transfer his rights to the new parents. However, in most cases, biological parents do not have a say, as many children are abandoned right after birth by their biological parents and placed in the orphan category. These children are raised in an orphanage or foster homes unless a couple wishes to adopt them.

In India, there is a regulatory framework for dealing with matters related to Adoption. Regulations governing the welfare of the adopted child have been structured along with clear guidelines for adoptive parents. These include the following key components of the regulatory framework:

Hindu Adoption and Maintenance Act, 1956

The Hindu Adoption and Maintenance Act (HAMA) was enacted after independence with the legislative intent of modernizing Hindu law. With the prevalence of discriminatory provisions depriving individuals of their right to Adoption based on their sexes, this Act was a welcome change towards removing many such provisions and abiding by the principles of equality. This Act throws light on Adoption in its entirety under Hindu law by listing who can adopt, the prerequisites of Adoption, the effect of Adoption, etc. However, the Act consists of one major flaw - a wife is not allowed to adopt a child even after obtaining her husband's consent. It reflects the existing biases in the minds of legislators while setting out to diminish the discrimination line that existed before the enactment of this Act.

Guardians and Wards Act, 1890

Guardians and Wards Act of 1890 was enacted with the intent to grant adoption rights to individuals hailing from different religions - Parsis, Jews, Christians, and Muslims. Unlike Hindus, no other religion has personal laws that grant them adoption rights. However, it must

Note that, unlike the Hindu Adoption and Maintenance Act of 1956, this Act does not entirely confer adoption rights. Instead, it entrusts the interested parents with the guardianship rights of the concerned child. The Court or competent authority shall only have the final say in determining the Guardian of the minor. Moreover, minors can have more than one guardian until they reach the age of majority.

The Juvenile Justice (Care and Protection of Children) Act, 2015

The Juvenile Justice (Care and Protection of Children) Act, 2015 seeks to integrate the laws for two categories of children-

⦁ The ones requiring care.

⦁ The ones in conflict with laws.

The Act strives to ensure well-being for children hailing from both categories. Moreover, the Act throws light on the Adoption of orphaned and other children who fall into the care of the JJ Act. Further, the Act lays down the capacity of adoptive parents under Section 57 of the Act. It ensures the safety of children by mandating that a single male cannot adopt a female child. The Act sheds light on the adoption procedure by stating that to adopt an orphaned, abandoned, or any other child, an application must be submitted to a Specialized Adoption Agency.

In cases where there is a conflict between the laws of JJ Act, 2016 and HAMA, 1956, the court shall give precedence to general legislation, that is, JJ Act, 2015, and that court shall draw a harmonious construction between the two. This Act was further amended in 2021. The key change empowered District and Additional District Magistrates to issue adoption orders. It was to be done under Section 61 of the said Act.

Central Adoption Resource Authority

Central Adoption and Resource Authority (CARA) oversees the process of Adoption of orphaned, abandoned, and surrendered children in India. Founded in 1990, it has been established as a statutory body under the Ministry of Women and Child Development. CARA regulates the adoptions happening across the length and breadth of India and monitors inter-country adoptions. In line with 1993 Hague Convention provisions relating to inter-country Adoption, CARA was identified as the authority by the Government of India. The ratification took place in 2003. CARA works as a statutory body under the prevailing 

Juvenile Justice Act of 2015.

The Guardians and Wards Act 1890

This Act governs all Indian communities and presents the legal background on which minors' guardianships are appointed. Though it's more of a guardianship piece of legislation, it does carry a part that pertains to Adoption. It appoints the Guardian through court proceedings for children up to adulthood; hence, it is significant for unmentioned communities other than the 

Hindu Adoption and Maintenance Act.

The Hague Convention on Intercountry Adoption

India is a signatory to the Hague Convention on Intercountry Adoption, which comes with safeguards so that intercountry adoptions are conducted in the child's best interest. This Convention also aims to prevent the abduction, sale, and trafficking of children. CARA governs intercountry adoptions as per the guidelines from the Hague Convention.

Adoption Procedures and Challenges

• Eligibility Criteria

Adoptive Parents: Adoptive parents should be physically, mentally, and financially sound to care for a child. They should be at least 25 years of age, and there must be an age gap of at least 21 years between the child and the adoptive parents.

Children: The child to be adopted must legally be free for Adoption. This means that the child should have been either abandoned, surrendered, or relinquished, and all legal formalities to declare a child free for Adoption have been completed.

• Registration and Home Study report

First, the potential adoptive parents must register with an agency or via CARA's online portal. A social worker thereafter prepares a Home Study Report to evaluate the suitability of the adoptive parents. HSR comprises information concerning the family background, financial security, living conditions, and the couple's preparation towards Adoption.

• Matching and Referral

Once the HSR is approved, the CARA or the adopting agency brings in a suitable child for the prospective parents. The agency provides the adoptive parents with the profile of the child, their medical background, and social background. The adoptive parents may accept or refuse the referral based on the information they receive.

• Judicial Process

Adoptive parents, after accepting the case, need to submit a petition in court to get the legal order of Adoption. The documents, which include the HSR and background of the child, are checked by the court to verify if all the steps for legal background checking have been followed. If everything goes well, the court will give the order of Adoption.

Challenges and Issues

⦁ The adoption process is lengthy and involves many procedures in India, and it may even take months or years to finalize. The whole procedure is irritating for the parents who are seeking a child to adopt.

⦁ Bureaucratic Hurdles: The legal and regulatory requirements can be complicated and strict, leading to bureaucratic hurdles that may delay Adoption.

Current Developments: Adoption Regulations, 2022

Adoption Regulations were notified in September 2022 to ease the adoption of orphaned children by step-parents or relatives.

The Ministry of Women and Child Development has introduced new adoption rules, transferring the authority to issue adoption orders from the judiciary to District Magistrates. These rules mandate pre- and post-adoptive counselling sessions conducted by the National Institute of Mental Health & Neuro Sciences (NIMHANS)-trained counselors for prospective adoptive parents.

It draws upon a careful review of related literature in the form of scholarly research articles, legal journals, government reports, and policy documents on adoption in India. Most importantly, main legislation-the Hindu Adoption and Maintenance Act, Juvenile Justice Act, and the guidelines issued by the Central Adoption Resource Authority-CARA-have undergone extensive analysis. The article will engage secondary sources based on the adoption of a particular case and article reports coming directly from nongovernmental organizations involved with a child welfare association. In effect, information within this essay presents a general sense of an Indian adoption overview-it is neither official legal or professionally oriented.

This methodology will ensure that the article is informative about the legal framework, procedures, and challenges in the adoption process in India and based on sound research principles.

Adoption is a noble and life-changing process. Adoption allows children to grow up in a loving and nurturing environment. A comprehensive health check, overseen by the child's district's Chief Medical Officer (CMO), is now part of the adoption process. Prospective adoptive parents can choose from their home state or region under the new rules, reflecting changes in the Child Adoption Resource Information and Guidance System (CARINGS) online platform.

Children who haven't found families within their initial referral cycles are now offered to Indian residents, NRIs, and OCI card holders, regardless of seniority, instead of being referred to foreign prospective parents. Additionally, the new regulations stipulate that if a child adjusts well to a foster family, Adoption after 2 years, a significant reduction from the previous 5-year requirement.

A significant increase has been noticed in the registrations of prospective adoptive parents with CARA. Interestingly, numerous applications denote the adoption of children by step-parents or relatives. 

Adoption is a very fulfilling journey for every parent, but it is also a challenging one, and the proper support can make a difference. Here are some key resources and support systems:

1. Adoption Agencies

The adoption process is made more accessible through agencies. They counsel and guide adoptive parents as they go about the process, ensuring that it is as easy as possible for them. Because they are certified by CARA, all requirements are met as they focus on the child's best interest, and they can also provide follow-up support in case the families need it for adjustment. Accredited by CARA, these agencies ensure that all legal requirements are met and that the child's best interests are prioritized. They also offer post-adoption support to help families adjust to their new dynamics.

2. Support Groups and Networks

Support groups and networks are beneficial to adoptive parents. These help them share experiences, gain insight, and seek emotional support from others who have been through the same journey. Or sharing experiences, gaining insights, and receiving emotional support from others who have gone through similar journeys. Online forums, social media groups, and local meet-ups can create a sense of community and belonging for adoptive families.

3. Counseling Services

Adoption can bring about emotional and psychological challenges for both the child and the adoptive parents. Counselling services offered by professional counsellors and psychologists can help address these challenges. Pre-adoption counselling prepares prospective parents for the responsibilities and changes that come with Adoption. Post-adoption counselling supports families in dealing with adjustment issues and emotional concerns.

4. Educational Resources

Various educational resources are available for adoptive parents, including books, articles, webinars, and workshops. These resources include valuable information on topics such as parenting adopted children, attachment and bonding, dealing with identity and heritage issues, and navigating the legal aspects of Adoption. These resources can be found on CARA's website and in adoption-related organizations.

5. Financial Assistance

While adoption is an expensive process, there are financial assistance options available to help ease the burden. Some state governments and non-governmental organizations offer adoptive parents grants, subsidies, and financial aid. Certain employer benefits and tax deductions may also be available to support adoptive families.

6. Healthcare Support

Adopted children may need special healthcare attention. In cases of traumatic experiences or medical conditions, the child would require special attention. Healthcare support is necessary in the form of pediatricians, specialists, and therapists. Some adoption agencies also provide medical check-ups and health assessments as part of the adoption process.

7. Legal Assistance

The legal aspects of adoption are very complicated, and seeking the help of lawyers can ensure that all procedures are followed correctly. Legal professionals specializing in adopting prospective parents through documentation, court procedures, and compliance with regulations. They can also address any legal challenges that may arise during the process.

Building a Supportive Environment

Adoptive parents can find out the ways their child has learned to survive until now, even with all their support systems available and resources behind them. All in all, Adoption is so much more than a legal paper; it represents a lifelong bond of nurturing and caring for this child through whatever development or evolution they will follow.

By leveraging the available support systems and resources, adoptive parents can navigate the adoption journey more smoothly and provide a loving and supportive home for their adopted child. Adoption is not just a legal process; it is a lifelong commitment to nurturing, caring, and supporting a child as they grow and develop.

Prospective parents must think thoroughly before signing up for Adoption; even the government should take proactive measures to streamline and expedite the adoption process and create awareness amongst the general public so that more people will consider adoption. Adoption soon. The role does not end with a successful government that must set up an independent agency that checks on the well-being of the adopted child and provides healthcare facilities and counselling sessions to overcome the challenges that adoptive parents and adopted children may face in the journey.

Adoption is a beautiful and thoughtful step towards uniting a child with a suitable family. If you feel the absence and need of a child and wish to complete your family, do consider Adoption alternatives. You will open the door to a world of joy for yourself and your spouse.