Child Adoption in India

CA SOCIAL ISSUES

Child Adoption in India

  • Recently, the Supreme Court agreed to hear a plea seeking to simplify the legal process for child adoption in India.
  • In 2021, Adoption (First Amendment) Regulations, 2021 was notified which allowed Indian diplomatic missions abroad to be in charge of safeguarding adopted children whose parents move overseas with the child within two years of adoption.

 

What are the Laws to Adopt a Child in India?

  • The adoption in India takes place under Hindu Adoptions and Maintenance Act, 1956 (HAMA) and the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act).
  • HAMA, 1956 falls in the domain of Ministry of Law and Justice and JJ Act, 2015 pertains to the Ministry of Women and Child Development.
  • As per the government rules, Hindus, Buddhists, Jains, and Sikhs are legalized to adopt kids.
  • Until the JJ Act, the Guardians and Ward Act (GWA), 1980 was the only means for non-Hindu individuals to become guardians of children from their community.
  • Personal laws of Muslim, Christian, Parsis and Jews do not recognise complete adoption so if a person belonging to such religion has a desire to adopt a child can take the guardianship of a child under section 8 of the Guardians and Wards Act, 1890.
  • This statute only makes a child a ward, not an adoptive child. According to this statute, the movement child turns to the age of 21, he is no longer consider as a ward and treated as individual identity.
  • Guardians and Wards Act, 1890 remains silent about the adoption of orphans, abandoned and surrendered children. Juvenile Justice (Care and Protection of Children) Act, 2015 deals with adoption in such category of the child.
  • Section 58 of this Act defines that any Indian citizen of India, irrespective of their religion, if interested to adopt an orphan or abandoned or surrendered child.

Eligibility criteria for prospective adoptive parents

  • The prospective adoptive 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 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 stable marital relationship.
  • In case of 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, hard to place children and in case of relative adoption and adoption by step-parent.

Issues Related to Child Adoption in India?

  • There is a wide gap between adoptable children and prospective parents, which may increase the length of the adoption process.
  • Data shows that while more than 29,000 prospective parents are willing to adopt, just 2,317 children are available for adoption.
  • Between 2017-19, the Central Adoption Resource Authority (CARA) faced an unusual upsurge in adoptive parents returning children after adopting.
  • According to the data, 60% of all children returned were girls, 24% were children with special needs, and many were older than six.
  • The primary reason these ‘disruptions’ occur is that disabled children and older children take much longer to adjust to their adoptive families.
  • This is primarily because older children find it challenging to adjust to a new environment because institutions do not prepare or counsel children about living with a new family.
  • Only 40 children with disabilities were adopted between 2018 and 2019, accounting for approximately 1% of the total number of children adopted in the year.
  • Instances like manufactured orphans and child trafficking are becoming increasingly common as the pool of children available for adoption shrinks and waitlisted parents grow restless.
  • The child trafficking rackets usually source children from poor or marginalised families, and unwed women are coaxed or misled into submitting their children to trafficking organisations.
  • Despite the constant evolution of the definition of a family, the ‘ideal’ Indian family nucleus still constitutes a husband, a wife and daughter(s) and son(s).
  • The invalidity of LGBTQI+ marriages and relationships in the eyes of the law obstructs LGBTQI+ persons from becoming parents because the minimum eligibility for a couple to adopt a child is the proof of their marriage.

Way forward

  • Need to prioritise children’s welfare- CARA and the ministry must accord attention to the vulnerable and invisible community of children silently suffering in our institutions.
  • The adoption ecosystem needs to transition from a parent-centric perspective to a child-centric approach.
  • There is a need to adopt an inclusive approach that focuses on the needs of a child to create an environment of acceptance, growth, and well being, thus recognising children as equal stakeholders in the adoption process.
  • The process of adoption needs to be simplified by taking a close relook at the various regulations guiding the procedure of adoption.