ADOPTION- DOOR TO PARENTAGE
Author: Ms. Chhaya Lalwani, LL.B.(H), Law College Dhanbad.
CHILDREN – The most wonderful creation of God
Children are considered as a bundle of joy and happiness on whom the future of the country depends, while some of the children are fortunate enough to have the basic means to lead their life, whilst there are still children in India who are deprived even from such basic essentials. Some of such abandoned children fall prey of the vicious circle of human trafficking and acts of sexual violence etc while few are taken to an adoption agency, from where their new life starts. IT can be said that adoption gives to such unfortunate children to lead a better life with all the means and facilities. It is a boon both for the child who and parents who are desperate for a child. Adoption makes the deprived children available shelter and serves as a key to a happy life ahead.
The concept of Adoption is very old prevalent in ancient India but earlier it was understood as a curse in India but now the concept of adoption is growing faster and spoken freely in the society. It is always advised to get adopted children through any agency so as to assure safety and to avoid any future problems regarding parenthood. Legal adoption should always be preferred.
CONCEPT OF ADOPTION
Adoption is a legal terminology determining the act of taking something as of your own. Here it is used in the context of the child. It is a process whereby a person or persons jointly assumes parenting of usually a child from that person’s biological parents or parent. It differs from GUARDIANSHIP, unlike guardianship here the status of the child is permanently transferring all the legal rights and obligations toward the child from the biological parents to the adoptive parents.AN adopted child is given the same status as that of an own child. Law creates no difference between adopted and natural own kids.
Legislations governing adoptions in India:
Basically in India law relating to adoption is contained in the following regulations. A short note o those legislations are provided herewith as the main motto this research paper is to make awareness regarding the procedure of adoption in India.
- HINDU ADOPTION AND MAINTENANCE ACT, 1956
The Hindu Adoption and Maintenance Act were passed after Independence as part of modernizing and codifying Hindu Law. The Act to some extent reflects the principles of equality and social justice by removing several (though not all) gender-based discriminatory provisions.
This Act deals with topics such as the capacity to adapt, the capacity to give in adoption, the effect of adoption, gender bias and such others.
- THE GUARDIAN AND WARDS ACT 1890
This was a law to supersede all other laws regarding the same. It became the only non-religious universal law regarding the guardianship of a child, applicable to all of India except the state of Jammu and Kashmir. This law is particularly outlined for Muslims, Christians, Parsis, and Jews as their personal laws don’t allow for full adoption, but only guardianship. It applies to all children regardless of race or creed.
- THE JUVENILE JUSTICE (CARE AND PROTECTION) ACT OF 2000, (JJ ACT)
The Juvenile Justice Act is meant mainly for the care and rehabilitation of children in conflict with the law. But under this Act, there is a provision for the adoption of children who are in conflict with the law, as it is opined that rehabilitation of these children should be within the family structure and providing them with a better environment would be for the welfare of these children.
WHO CAN ADOPT CHILD?
- The prospective parents shall be physically, mentally and emotionally stable, financially capable and shall not have any life-threatening medical condition.
- Any prospective adoptive parents, irrespective of his marital status and whether or not he has a biological son or daughter, can adopt a child subject to following, namely:-
- the consent of both the spouses for the adoption shall be required, in case of a married couple;
- a single female can adopt a child of any gender;
- a single male shall not be eligible to adopt a girl child;
- No child shall be given in adoption to a couple unless they have at least two years of a stable marital relationship.
- The prospective parents should not be suffering from any life-threatening disease
- The age of prospective adoptive parents, as on the date of registration, shall be counted for deciding the eligibility and the eligibility of prospective adoptive parents to apply for children of different age groups as specified by CARA.
In the case of a couple, the composite age of the prospective adoptive parents shall be counted.
- The minimum age difference between the child and either of the prospective adoptive parents shall not be less than twenty-five years.
The age criteria for prospective adoptive parents shall not be applicable in case of relative adoptions and adoption by step-parent.
- Couples with three or more children shall not be considered for adoption except in case of special need children as defined in sub-regulation (21) of regulation 2, hard to place children as mentioned in regulation 50 and in case of relative adoption and adoption by step-parent
The above guidelines are specified by CARA THE ELIGIBILITY CRITERIA FOR ADOPTING A CHILD.
WHO CAN BE ADOPTED
- AS per the guidelines of the central Government of India, any orphan, abandoned or surrendered child declared legally free for adoption by child welfare committee is eligible for adoption.
- A child is said to be an orphan when the child is without a legal parent or guardian or the parent is not capable of taking care of the child anymore
- A child is considered abandoned on being deserted or unaccompanied by parents or a guardian and the child welfare committee has declared the child to be abandoned.
- A surrendered child is one who has been relinquished on account of physical, social, emotional factors that are beyond the control of parents or the guardian and is so declared by the child welfare committee.
- In order to be adopted the child needs to be “ legally free”.On receipt of an abandoned the District Child Protection Unit puts up an alert with the child photograph and details in state vide newspapers and requests the local police to trace the parents. The child is said to be legally free after the police have given a report that parents of the child are not- traceable.
FUNDAMENTAL PRINCIPLES GOVERNING ADOPTION
Following fundamental principles shall govern adoptions of children from India namely,
- Child’s best interest is the topmost criteria or condition while processing any.
- Preference shall be given to placing the child in adoption with citizens and with due regard to the principle of placement of the child, in his own socio-cultural environment, as far as possible.
- All adoptions shall be registered on Child adoption resource information and guidance system and the confidentiality of the same shall be maintained by the authority.
STAKEHOLDERS IN ADOPTION PROCESS
CENTRAL ADOPTION RESOURCE AUTHORITY(CARA)
CARA IS A STATUTORY BODY OF MINISTRY OF WOMEN &CHILD DEVELOPMENT, GOVERNMENT OF INDIA
It ensures the smooth functioning of the adoption process from time to time, issues adoption guidelines laying down procedure and process to be followed by different stakeholders of the adoption
STATE ADOPTION RESOURCE AGENCY(SARA)
It acts as a nodal body within the state to promote and monitor adoption and non-institutional care in coordination with central adoption resource authority.
SPECIALISED ADOPTION AGENCY(SAA)
It is recognized by the state government under subsection 4 of section 41 of the Act for the purpose of placing children in adoption
PROCESS OF ADOPTION IN INDIA
The procedure for adoption of a child in India can be understood in the following ways:
Parents wanting to adopt a child have to get registered with the authorized agency.RIPA(RECOGNISED INDIAN PLACEMENT AGENCIES
), SPA(SPECIAL ADOPTION AGENCY) are the agencies allowed to make such registrations
- HOME STUDY AND COUNSELLING
A social worker visits the home of the prospective parents for the home study as per the guidelines of CARA the home study must be completed within 3 months from the date of registration.
- REFERRAL OF CHILD
The agency shall intimate the interested couple whenever their child is ready for adoption. Agency will share the medical reports, physical examination reports with the coup and allows them to spend time with the child once they are comfortable with the details shared.
- ACCEPTANCE OF CHILD
Once the parents are comfortable with the child, they will have to sign a few documents pertaining to the acceptance of the
- FILING OF PETITION
All necessary documents are submitted to a lawyer who prepares a petition to be presented to the court
- PRE-ADOPTION FOSTER CARE
Once the petition is signed in the court the adoptive parent can take the child to a pre-adoption foster care center and understand the habits of the child from staff before taking the child home
- COURT HEARING
The parents have to attend a court hearing along with the child. The hearing will be held in a closed room with a judge.
- COURT ORDER
Once the investigation over the judge shall pass adoption orders
- FOLLOW UP
Post completion agency needs to submit follow up reports to the courts on child well-being. This may continue for 1-2 years.
HOW LONG DOES IT TAKE TO COMPLETE ADOPTION PROCESS IN INDIA
For most families adoption may be a long way process as it takes between two and four years. The largest contributing factor to the adoption process in India is the long wait. However, CARA has made sufficient changes in its norms so that the time gap during the process is minimized so as to speed up the process. Parents can also reduce their wait times by being open to special needs on adopting a specific gender etc
BENEFITS OF LEGAL ADOPTION
Legal adoption is irrevocable and provides an extended security ring for the adopted child. It ensures the status of the child similar as to the biological child would have secured in the family of adopted children. It ensures the status of the child in the adoptive family. A legally adopted child can enforce his / her rights in the court of law whereas no such right is created against informal adoptions. Informal adoptions do not carry any legal sanctions and are gross violations of the law of the land.
“WE BELIEVE EVERY CHILD HAS RIGHT TO FAMILY “and there is no better measure for parentless homeless children then ADOPTION
“PARENTHOOD REQUIRES LOVE NOT DNA”
PROMOTE ADOPTION– SAVE CHILDREN-SAVE FUTURE -SAVE OUR COUNTRY