Inter-country Adoption

In one line

A child goes abroad only after sixty days in which no Indian family could be found, and only through a chain of agencies designed in 1984 by a court that had no statute to work with.

In the wording a student can write in an exam: inter-country adoption means, in the words of section 2(34) of the Juvenile Justice (Care and Protection of Children) Act 2015, the adoption of a child from India by a non-resident Indian, a person of Indian origin, or a foreigner. Before any statute governed it, the Supreme Court in Lakshmi Kant Pandey v. Union of India laid down the safeguards: every application by a foreigner must be sponsored by a social or child welfare agency recognised or licensed by the government of the country of residence, no Indian agency may entertain a foreigner's application directly, a home study report is essential, and an agency in the receiving country must be responsible for supervising the child. Those safeguards are now in section 59, together with the SIXTY-DAY rule: where an orphan, abandoned or surrendered child could not be placed with an Indian or non-resident Indian prospective adoptive parent within sixty days of being declared legally free, the child becomes free for inter-country adoption. Section 68 makes the Central Adoption Resource Authority the Central Authority under the HAGUE CONVENTION on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993, which India ratified in 2003.

Lakshmi Kant Pandey

Facts. Lakshmi Kant Pandey v. Union of India, (1984) 2 SCC 244, decided 6 February 1984 by Bhagwati J with Pathak and A.N. Sen JJ. A letter from an advocate alleging malpractice by social organisations and voluntary agencies offering Indian children to foreign parents, and the neglect and exploitation of those children, was treated as a writ petition. No statute governed inter-country adoption; a foreigner could take a child abroad only as a GUARDIAN under the Guardians and Wards Act 1890.

Held. The Court laid down a code of safeguards, of which the first is the important one: every application by a foreigner to adopt an Indian child must be SPONSORED by a social or child welfare agency recognised or licensed by the government of the country in which the foreigner resides, and no application by a foreigner may be entertained DIRECTLY by an Indian agency, institution or home.

The three reasons the Court gave, and they should be quoted. First, it reduces PROFITEERING AND TRAFFICKING, because a foreigner approaching an Indian agency directly may, in anxiety to secure a child, be induced to pay any unconscionable amount demanded. Second, without a sponsoring agency there is no proper HOME STUDY REPORT, and the court cannot satisfy itself that the applicant is a suitable parent able to provide a stable family life and to handle the TRANS-RACIAL, TRANS-CULTURAL AND TRANS-NATIONAL problems such an adoption raises. Third, there would be no authority in the receiving country responsible for SUPERVISING the child's progress and ensuring the adoption is completed in accordance with law.