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No child's play: Problems faced by NRIs to adopt children
6 Mar, 2008, 0213 hrs IST, TNN

Many non-resident Indians and people of Indian origin (PIO) who wish to adopt Indian children face a lot of hurdles.

The Guardians and Wards Act, 1890 (GWA), a 116 year old Indian law, plays spoiltsport for the 12 million orphaned children in India who need parents by not allowing Muslims, Christians, Jews and Parsis to become a child’s adoptive parents.

They can only be appointed as ‘guardians’. Even the more liberal Hindu Adoption and Maintenance Act, 1956 (HAMA) does not allow non-Hindus to adopt a Hindu child. The process is tedious and hemmed in with restrictions.

The result - non-Hindus and foreign nationals can at most become guardians but cannot adopt children from India, even after they comply with the cumbersome procedure.

The procedure of adopting Indian children is extremely complicated for NRIs, even if they are Hindus. Section 16 of HAMA gives a conclusive status to an adoption deed recording an adoption in compliance with the provisions of this Act.

So a Hindu NRI - who having executed an adoption deed under the said Act, approaches the American, British or any European embassy or high commission, for immigration of the adopted child to its new home country - is faced with big disappointment.

The adoption deed is not enough. The foreign rules stipulate that the adoptive parents have to now obtain ‘guardianship orders’ from a ‘guardian judge’ under the Hindu Minority and Guardianship Act, 1956 (HMGA) for Hindus and a similar order under the GWA for non-Hindus. Genuine transfer of parental responsibility does not help.

The fact that a valid adoption under HAMA is not acceptable for immigration purposes, unless supported by a guardianship order either under GWA or HMGA, is somewhat of a legal paradox.

However, such problems do not always deter the NRI community living around the world, who sometimes use their ingenuity to find alternative means of achieving their parental dream.

The latest answer is surrogacy where genetics helps retention of biological ties with the child. India has become a prime destination for in vitrio fertilisation, at the reported rate of Rs 65,000 - Rs 90,000 per case. Rented wombs are said to be available at Rs 1 to 3 lakh.

In the US, a surrogate mother would reportedly have to be paid $15,000 and in the UK the whole process would cost over 30,000 pounds. Thus India is turning out to be far more cost-effective for surrogacy, specially for NRIs and PIOs.


Strangely, there is no law in India to govern surrogacy. The Indian Council of Medical Research had laid down some guidelines in 2005 to regulate surrogacy.

However, their utility, enforcement and adaptability to current trends leaves much to be desired. A law governing surrogate motherhood, hiring of wombs in India and sperm banks needs to be enacted immediately.

The abuse of this process for exploiting women and misusing children born in surrogacy, for commercial considerations, must be stopped forthwith. India is a signatory to the United Nations Convention on Rights of the Child and the Hague Convention on Inter-country Adoption, but there is scant regard on giving effect to them as there exists no parallel Indian law to implement these international rules.

A code of rights for Indian children going abroad is thus overdue.

Genuine adoptive foreign and NRI would-be parents too face an insurmountable wall. Child adoption in India is a complicated issue.

It is over-burdened with knotty legal processes and complicated procedures for those who want to give a new home and a new life to an Indian orphan.

In fact, it’s a pity that even after 60 years of Independence, India does not have a comprehensive adoption law applicable to all its citizens, irrespective of the religion they profess or the country they live in as NRIs, PIOs or OCIs.

Those who cannot adopt by law and can only be appointed as guardians under personal Indian laws, turn to options of IVF clinics or rent surrogate wombs.

It is in this perspective that India now needs to enact another law to turn into reality the dreams of those who live abroad. Or, people are likely to sometimes indulge in unethical practices.

Three years ago, the Indian Council for Medical Research laid down guidelines for assisted reproductive technologies (ART) prepared by an expert committee.

Till date, there is no Indian legislation on the subject. At the moment, we do not have any legislation on legal parentage as a result of surrogacy arrangements, even though parts of Gujarat have acquired the reputation of being major hubs of surrogacy in India.

The Registration of the Births and Deaths Act, 1969 does not contain any provision regarding parentage as a result of surrogacy arrangements.

Equally baffling is the situation for any foreign embassy in India when processing an immigration application of a child born out of surrogacy to an NRI couple in India who wish to take their child to their foreign home. Does the child have to be adopted?

Is the child of Indian or foreign nationality? Does the child need indefinite leave to live with its parents in their foreign parental home? Will the child need a parental order in its new home?

Even the regulations of foreign missions do not contain answers in the basic substantive immigration rules. Probably with the passage of time, practices may be developed to pave the way for genuine and realistic rules if the requisites of a valid Indian adoption did not find favour.

Our analysis and collective reading leads us to think that the preference for adoption by immediate blood relatives, which has been the common South Asian phenomenon, is what most NRIs and PIOs are looking for.

Mechanics of inter-country adoptions, stringent adoption procedures, insurmountable technicalities, high refusal rates of visas and inordinate delay in Indian court procedures have been a deterrent to adopt a child from India.

So what do the Indian authorities need to do? Where is the change desired? Maybe a general law of adoption in India enabling any person, irrespective of his religion, race or caste to adopt a child would help.

Further, keeping in view the repeated guidelines of the Supreme Court of India in adoptions by foreign nationals to prevent trafficking of children and to protect their welfare, a uniform streamlined statutory procedure acceptable to foreign jurisdictions would also serve the purpose better to mitigate the plight of the adopted child.

Anil Malhotra and Ranjit Malhotra

(The authors have LL.M degrees from the University of London and are fellows of the International Academy of Matrimonial Lawyers).
 
Source: http://economictimes.indiatimes.com/rssarticleshow/msid-2841488,prtpage-1.cms
 


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