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Overview of the various Adoption Acts , Procedures of Adoption in India

Adoption can be a most beautiful solution not only for childless couples and single people but also for homeless children. It enables a parent-child relationship to be established between persons not biologically related. It is defined as a process by which people take a child not born to them and raise it as a member of their family.Sadly, in India, this beautiful relationship is given only limited encouragement by law. Only Hindus are allowed to legally adopt. Other communities can only act as legal guardians to the children they adopt. The adopted children do not receive the status of children; they only attain the status of wards. The law is still more parent-oriented than child-oriented. It does not recognise the right of every child to a caring family environment. In the case of Hindus, it is the spiritual motive that the law recognizes. Children, the true beneficiaries of adoption, are given short shrift.

The UN Convention on the Rights of the Child, 1989The United Nations Convention on the Rights of the Child, 1989, recognizes a child's right to an identity and family.Article 21 of the Convention states that:State parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:

a. Ensure that the adoption of a child is authorized only by competent authorities who determine in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child's status concerning parents, relatives and legal guardians, and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counseling as may be necessary;

b. Recognize that inter-country adoption may be considered as an alternative means of child care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child's country of origin;

c. Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption;

d. Take all appropriate measures to ensure that, in intercountry adoption, the placement does not result in improper financial gain for those involved in it;

e. Promote, where appropriate, the objectives of the present article by concluding bilateral or multilateral arrangements or agreements, and endeavor, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs. Thus, this Convention views adoption as a means of providing alternative care for a child deprived of his or her family environment and places this obligation on the State.

The Hindu Adoptions and Maintenance Act
The Hindu Adoptions and Maintenance Act (HAMA), 1956, provides for adoption of Hindu children only. Other communities (Muslims, Christians and Parsis) have recourse to Guardians and Wards Act, 1890, wherein they become guardians of children. But the child does not have the status it would have had, had it been born to its adoptive parents.The unfairness in the laws does not end here. The law contains a number of clauses that are biased against women. The Hindu wife does not have an independent right of adoption. She has no right to adopt during her husband's lifetime even with his consent. She can do so only if her husband is dead, or her marriage has been dissolved or he has completely and finally renounced the world or he has ceased to be a Hindu or has been adjudged as a person of unsound mind. But the Hindu husband can adopt with the consent of his wife. This is a clear instance of gender bias.Another bias is that no Hindu person can adopt a son or daughter, if they already have a child of that sex.Often the intentions behind the law are good, but the methods adopted fall short. The HAMA provides that there should be an age difference of twenty-one years between the adoptive parents and the adopted child whenever they are of opposite sex. This is intended to prevent sexual abuse. What the law fails to realize is that a mere difference of age is hardly likely to deter a pedophile. Besides, the law takes absolutely no note of the same danger existing in same-sex relationships.But despite these failings, it manages to muddle on. Widows, widowers, single women, divorced and deserted women can adopt children too, provided they are Hindus.Under this law, the adopted child has the right of collateral succession both on his adoptive mother's side and adoptive father's side. All persons are entitled to succeed him as if he is a natural born child of that family. He can claim maintenance against his adoptive parents and he is also liable to maintain all those persons whom a natural child has an obligation to maintain.

The Guardians and Wards Act

The Guardians and Wards Act, 1890, is indirectly invoked by other communities, such as Christians, Parsis, Muslims etc., to become guardians of the child during minority. The statute does not deal with adoption as such but mainly with guardianship. The process makes the child a ward, not an adopted child.Under this law, when children turn 21 years of age, they no longer remain wards and assume individual identities. They do not have an automatic right of inheritance. Adoptive parents have to leave whatever they wish to bequeath to their children through a will, which can be contested by any `blood' relative.

Adoption procedure

1. The parents approach the voluntary coordinating agency or the child welfare agency in their area.

2. They register themselves at the agency

3. Preliminary interview with the couple to assess their basic motivation for adoption, emotional health, quality of marital life, family background, attitude towards adoption and scrutiny of application and relevant documents.

4. The placement agency is identified; so is a suitable child.

5. A home study report is prepared.

6. The prospective parents meet the identified child.

7. A doctor selected by the prospective parents medically screens the child.

8. The parents make a final decision and file the relevant papers through their lawyer.

9. The child is taken in pre-adoptive foster-care.

10. A court hearing takes place.

11. The court issues a decree and the adoption is sealed.

12. Post-adoption follow-up

Attempts to formulate a general law on adoption

The religion-specific nature of adoption laws is a very retrograde step. It reinforces practices that are unjust to children and hinders the formation of a Uniform Civil Code.

Article 44 of the Constitution declares that:
The State shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India.Over the years, attempts to formulate a general law on adoption have failed on account of a number of reasons.

The Adoption of Children Bill, 1972, was not approved as the Muslims opposed it. The Adoption of Children Bill, 1980, aiming to "provide for an enabling law of adoption applicable to all communities other than the Muslim community," was opposed by the Bombay Zoroastrian Jashan Committee, which formed a special committee to exempt Parsis from the bill. The National Adoption Bill, tabled twice in Parliament in the seventies, has yet to enter the statute books.The Adoption of Children Bill, 1995, was passed by both Houses of the Maharashtra legislative assembly, but is still awaiting presidential assent.The Christian Adoption and Maintenance Bill of 1993 too has not been passed.
Any law on adoption must be centered on the following premises:
ˇChild's interest is the primary consideration and it outweighs all other considerations.
ˇAdoption is primarily a child-welfare service.
ˇAdoption, which is the most desirable form of substitute for childcare, should be provided as early as possible.
ˇThe primary object of adoption is to provide a home, to the child. If the child gets a home with love and affection, inheritance and property rights will follow; they are secondary.

Requisites of a valid adoption

According to the Adoption of Children Bill, 1995,An adoption will be valid only if:1. The person adopting is competent to adopt;2. The person giving in adoption is competent to do so;3. The person adopted is capable of being taken in adoption;4. Consent where necessary is obtained.5. The adoption is made in accordance with the other provisions of this bill and rules framed therein.
ˇ Any person above 25 years of age and of either sex may adopt a child, provided each of the adopters is at least eighteen and at the most fifty years older than the child.
ˇ If the person wishing to adopt is married, s/he should be living with the spouse and should have been married for at least five years. In this case, the adoption would be by both the spouses. However, this condition can be waived in the best interests of the child.
ˇ Persons who are not spouses cannot jointly adopt a child. This condition will be waived only if the spouse is living in an unknown place or is of unsound mind. As an exception, one person can adopt the spouse's child as his or her own child.
ˇ If a widow/widower has an adopted child from the previous marriage, the new spouse occupies the same position as if he/she has adopted the child.
ˇ A person will have the right to adopt more than one child of the same sex, even if the person already has a child of that sex
.ˇ A person who is eighteen years old can also adopt a child, if the child is his/hers or that of a spouse or such an adoption is in the best interests of the child.
ˇ If a husband or wife adopt a child of the other spouse, the child obtains the legal status of a mutual legitimate child of the spouses.
ˇ The court will not allow a male to be the sole applicant for adoption of a female child unless it is satisfied that the circumstances demand that an exception be made. Not everyone is allowed to give a child for adoption.
i) In the case of a child born to unmarried parents, only the mother.

ii) When both the biological parents are living together, they must jointly give the child in adoption, unless the court is satisfied that it is in the interest of the child that only one of them gives the child in adoption.

iii) Only one biological parent can give a child in adoption if the other biological parent is dead, missing, or of unsound mind and it is in the interest of the child, that the consent of the other biological parent is dispensed with.

iv) Legal guardian(s) of the child if the parents are dead or they cannot be traced in spite of best efforts.

v) The recognized institution to which the child is surrendered.Apart from these, the consent of certain persons needs to be obtained.

1) In the absence of a surviving parent, any relative of the child who has demonstrated a settled intention for the welfare of the child.

2) Any recognised institution or social welfare agency having legal custody of the child by court order if the parental rights have been judicially terminated because the parents are declared 'unfit persons' of unsound mind and mentally deficient in accordance with Section 16 of the Juvenile Justice Act, 1986.

3) The recognised institution or agency in which any abandoned child from a public place or a hospital/nursing home has been referred to and the mother is absconding. Certain conditions, however, need to be fulfilled.

 i) The case must be immediately registered at the nearest police station.

ii) The institution has made every effort to trace the parents or guardians of the child within six months of the date on which the child came into their custody.

iii) Six months have passed from the date when the child had been referred to the agency.

iv) If upon the date of the entry of the decree, the child to be adopted has reached the age of ten years, the adoption may be made after taking into consideration his/her wishes.This consent should not have been obtained through fraud, duress, coercion or undue influence.

Who can be adopted?
A child for adoption must be under 18 years of age and unmarried and legally free for adoption.

Adoption is a beautiful means by which the court can act positively to enhance the lives of children and parents alike. The law should take definite steps to cut back on the bureaucratic hassles and increase the speed at which adoption applications are processed. Adoptive mothers should be given maternity leave to enable them to bond with their children. Also, birth certificates must be automatically given after adoption, thus saving adoptive parents the hassle of making affidavits signed by social workers. Simple steps like these will ensure that more people are encouraged to look upon adoption not as an option in case of childlessness, but as an attractive choice.

Cynthia Rodrigues

URL:- http://www.womenexcel.com/law/adoption.htm