Inter-Country Adoption

What are the considerations kept in mind by the judiciary while certifying an adoption?

The welfare of the child is of paramount importance. It is no longer religious act to adopt; the Act has categorically made it secular. In Chandrasekhara v. Kulandaivelu, (AIR 1963 SC 185) the Supreme Court stated that the validity of the adoption has to be judged by spiritual rather than temporal consideration and that the devolution of property is of secondary importance. In Inder Singh v. Kartar Singh (AIR 1966 Punj. 258), the Court held that the main purpose of adopting is to secure spiritual benefit for the adopter, though the secondary objective is to secure an heir. The emphasis on the spiritual benefit was again reiterated in Venkalakshmi Amal v. Jagannanathan (AIR 1963 Mad 316.)

Increasingly with time, the Supreme Court has ruled that the primary purpose of adoption is for the welfare of the child, and that procedural or spiritual matters are only secondary.

What is the specific step-wise procedure to be followed?

As laid down by the Courts, a typical adoption/appointment of guardian should follow these broad guidelines:

  • Need for adoption, felt by the prospective adoptive parent;
  • Parents should approach a voluntary co-ordinating agency in their area;
  • Registration at one agency;
  • The placement agency is identified and a suitable child is also identified;
  • Home study report is prepared;
  • Meting with the adoptive child;
  • Medical screening of the child with a doctor of your choice;
  • Decision is final. The relevant papers have to be filed by the lawyer;
  • Child is taken into pre-adoptive foster care;
  • Court hearing;
  • Court decree, deed of adoption;
  • Post-adoption follow up.

I am a foreign national and would like to adopt a handicapped child. What is the procedure to be followed in this regard?

For a handicapped or older child all possible information on the child is sent to an agency abroad; who in turn select the family based on a number of social considerations. This procedure is exactly the opposite for what is followed for adoption of a normal infant.

What has been the opinion of the courts in India on inter-country adoption or the appointment of foreign guardians?

The Courts have recommended that an application for adoption be accompanied by a home study report from a recognized social welfare agency in the applicants’ country, as well as documents, providing the sustainability and eligibility to adopt.

The Supreme Court in Laxmi Kant Pandey v. Union of India (AIR 1986 SC 272) and other judgements has laid down certain guidelines and procedures to be followed:

  • Any inter-country adoption can be routed only through a welfare agency, recognised by the state government. The application for appointment of a foreigner as guardian of the child shall be made only in a court;
  • For children above the age of 7 years, their preferences have to be taken into account;
  • A security bond will have to be executed by the foreign parents. By this bond, the foreign parent as guardian would be accountable to the concerned court in India for the welfare of the child and for its repatriation to India, if so ordered by the Indian Court;
  • Parenthood should only be granted two years after obtaining guardianship of the child;
  • Quarterly or half yearly reports on the progress of the child may be submitted by the foreign child welfare agency to the concerned social welfare agency in India.

I am a foreign national and would like to be appointed as the guardian of a child. What procedure do I have to follow?

A foreign national has to make an application either to the district court or to the family courts within the jurisdiction of the residence of the minor. The court than verify the application to check if the adoption would be for the welfare of the child. For this, the age, sex, religion of the minor, the capacity and character of the person, adopting, would be taken into account. If the minor is able to form an intelligent opinion, the court would also consider that.

On being satisfied that the appointment of the guardian was indeed for the welfare of the child, an order, appointing the guardian would be made in any of the three forms:

  • a simple order, where no security is asked for;
  • an order, appointing a person as guardian and, asking him to furnish security within a specified time;
  • an order, appointing a guardian on the condition that he should furnish security.

An order, appointing a person as guardian under section 7 of the GWA,1980, amounts to the termination of the guardianship of all persons, who have had the care of the child, his/her person and property. In passing the order of guardianship, the court can also order or issue directions in respect of collateral matters, also.

What are the Laws, relating to adoption by foreign nationals?

There is no law, providing for the adoption of an Indian child by a foreign parent. The only way that this can be done is under the Guardians and Wards Act, 1890. The Act applies to all minors, irrespective of caste, creed, etc. One person is appointed as the guardian of a minor, irrespective of the fact whether the minor is a Hindu, Muslim or subject to any personal law. Such guardian will be subject to the provisions of the GWA, 1890.

The foreign nationals, wishing to adopt, have to apply to the court, having jurisdiction over the child”s domicile, for leave to be appointed as guardians and, to take the child outside the country for the purpose of adoption in their own country as per their laws.