Adoption is the beginning of a beautiful journey where hearts find their homes. But behind this joy lies a maze of laws, paperwork, and challenges that can overwhelm even the strongest.
Understanding the process of adoption is crucial for all, from prospective adoptive parents facing delays or disputes to a birth parent navigating emotional and legal complexities to ensure clarity and fairness.
What is Adoption?
Adoption is a process by which a person becomes a parent of a child without any blood relation. Unlike guardianship, this process permanently transfers all the rights and responsibilities of the child to the adoptive parents.
It is considered very significant in India as it provides children with a loving and secure family environment. It is not merely a legal process but also includes emotional complexities.
Legal frameworks governing adoption
Various laws regulate adoption in India:
Hindu Adoptions and Maintenance Act, 1956 (HAMA):
It falls under the Ministry of Law and Justice.
Juvenile Justice Act, 2015 (JJ):
It comes under the Ministry of Women and Child Development. The Juvenile Justice Act, 2015 outlines the procedures and practices for adopting children in need of care and protection, including provisions for inter-country adoption.
- Central Adoption Resource Authority (CARA) serves as the nodal agency overseeing the adoption process and maintains a comprehensive database of prospective adoptive parents and children eligible for adoption. The Central Adoption Resource Authority (CARA) has been established to streamline, standardize, and regulate the adoption process for both domestic and international cases.
Central Adoption Resource Authority (CARA):
It is also part of the Ministry of Women and Child Development and regulates inter and intra-country adoption.
Who is Eligible to Adopt children?
The following are the important criteria to be fulfilled for adoption:
- A person of any gender or marital status can adopt.
- The adoptive parents should be of an age as per the CARA guidelines to be eligible for adoption.
- If the person is married, the husband and wife must have completed 2 years of stable marriage and there should be consent of both parents to adopt.
- There must be an age gap between the adoptive parents and the child of at least 25 years.
- Adoptive parents must be emotionally, financially, and physically fit. They should not be suffering from any chronic, life-threatening illness.
- Parents who already have two or more children are not allowed to adopt and may only be considered in the case of a child with special needs or children that are hard to place otherwise.
- A single female can adopt any child but in the case of a single male, a girl child cannot be adopted.
- A single parent looking to adopt must not be more than 55 years. The total age of adoptive parents should not be more than 110 years. The maximum age limit for prospective single adoptive parents is outlined in Regulation 5 of the Adoption Regulations, 2022, and varies between 40 and 55 years based on the age of the child being adopted.
The Madras High Court recently held that the marital status of a woman cannot be a determining factor while considering her child’s adoption.
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Steps To Adopt a Child
In India, Procedures for adoption by an Indian citizen, NRI, or foreign citizen are different. However, certain common crucial steps involved in the child adoption process include:
- Registration: The adoptive parents must register with an authorized agency. The process of registration includes paperwork and different formalities.
- Home Study and Counselling: A social worker conducts a home study at the adoptive parents’ residence to understand their motivations and strengths. Counselling sessions can also assess the parents’ readiness for adoption.
- Referral of the Child: The parents are notified of a child’s availability, and information like medical reports is shared.
- Acceptance of the Child: The documents are then signed confirming their acceptance of the child.
- Petition: After the documents are submitted to the lawyer, he then prepares a petition to present in the court which is signed by the adoptive parents.
- Pre-Adoption Foster Care: The child is taken to a Pre-Adoption Foster Care by the parents to understand the child and his habits.
- Court Hearing: In the court hearing that is to be attended by the parents, the judge asks questions and inquires about the investment to be done on the child. Thereafter, the judge gives child adoption orders.
- Follow-up: Follow-up reports are submitted by the agency to the court about the well-being of the child for 1-2 years.
The District Magistrate passes an adoption order after an application is filed within 2 months. This provision applies to all, i.e., resident Indians, non-resident Indians, and OCI Card holders and Foreign Nations. Thereafter, final custody of the adopted child is sought from the agency.
In the case of inter-country adoptions, all the essential steps of approvals and permissions must be taken from the receiving country to ensure that the adoption process is recognized and legitimate. For instance, a certificate under the Hague Adoption Convention must be taken.
According to the Adoption Regulations 2022, a certificate of no objection is essential to be issued by CARA which must be done within 10 days of receiving the certificate under the Hague Adoption Convention and forward it to the Authorized Foreign Adoption Agency.
An exception is carved out to allow adoption directly from the biological parents when the adoption is to be done by relatives. This is allowed under the Juvenile Justice Act.
How to Adopt a Child from a Relative?
The Juvenile Justice Act includes provisions for the adoption of a child by a relative, governed by the Adoption Regulations 2022. This process is allowed regardless of the religion or faith of the parties involved. Notably, the maximum age criteria for prospective adoptive parents do not apply in cases of relative adoptions.
- Registration: Prospective adoptive parents must register on the designated portal and submit the required documents, including written consent from the biological parents.
- Verification: The District Child Protection Unit (DCPU) conducts a verification of the prospective adoptive parents.
- Pre-Approval: The State Agency refers the case to CARA for approval, following which the State Agency issues a pre-approval certificate.
- Application Review: The DCPU reviews the application and submits it, along with the necessary documents, to the District Magistrate of the child’s ordinary residence for an adoption order.
- District Magistrate’s Assessment: The District Magistrate ensures that the child’s consent is obtained if the child is 5 years or older, and that no payment, reward, or consideration has been exchanged for the adoption.
- Final Adoption Order: Once the adoption order is granted, a copy is uploaded on the designated portal, notifying the prospective adoptive parents.
Inter-Country Adoption
Inter-country adoption is governed by the Juvenile Justice Act and the Hindu Adoptions and Maintenance Act, with procedures outlined in the Adoption Regulations 2022 by CARA. The process applies to both resident and non-resident Indian parents.
- Initial Steps: Prospective parents must approach an Authorized Foreign Adoption Agency (AFAA) or Central Authority to prepare a Home Study Report, which evaluates their social, economic, and family background. Following this, they are registered on the designated CARA portal.
- Child Referral: After document scrutiny, eligible parents receive child profiles. Once a child is reserved, they can visit the agency to meet the child.
- Pre-Adoption Foster Care: With a No Objection Certificate (NOC) from CARA, prospective parents may temporarily care for the child until the adoption order is finalized.
- Adoption Order: The District Magistrate issues the adoption order within two months of the application, ensuring legal validity.
- Final Custody: Upon receiving the adoption order, passport, and visa, parents gain final custody of the child.
- Post-Adoption Monitoring: Foreign adoption agencies monitor the child’s well-being for two years, reporting quarterly in the first year and semi-annually in the second.
Relative Adoption Across Borders
- AFAA prepares the Home Study Report for prospective adoptive parents, which is uploaded to CARA’s portal.
- The District Child Protection Unit (DCPU) prepares a family background report for the child.
- Required permissions under the Hague Convention are secured before CARA issues an NOC.
- After filing with the District Magistrate, an adoption order is issued upon satisfactory verification.
Adoption by Indians Permanently Residing Abroad
- The adoption authority in the receiving country prepares the Home Study Report, followed by online registration with CARA.
- If parents are temporarily in India, they must approach the relevant embassy or high commission to proceed with the adoption process.
Inter-Country Adoption Under Hindu Adoption and Maintenance Act (HAMA)
- Eligibility: Hindus, including Buddhists, Jains, and Sikhs, who are adults, of sound mind, and have spousal consent, may adopt under HAMA, provided the child is under 15 years old.
- Process: NRI or OCI prospective parents residing abroad must coordinate with an AFAA or Central Authority. The DCPU and District Magistrate handle child background verification. CARA issues an NOC after verifying compliance, concluding the adoption.
Direct Adoptions from Biological Parents
Under the Juvenile Justice Act, adoptions outside CARA’s framework are restricted to relative adoptions. However, HAMA allows direct adoptions from biological parents through a registered deed, provided all eligibility criteria are met.
Factors governing adoption
Some of the significant principles that govern adoption of a child are:
- Child’s best interests: The child’s overall well-being, interests, security, and happiness are prioritized first.
- Finding an Indian family: It is ensured that adoptive families are found within India to ensure cultural continuity and a familiar environment for the child.
- Maintaining records: All adoptions are recorded with a fully secure system to ensure confidentiality and safeguard the privacy of both child and adoptive parents.
Although the adoptive parents cannot request a particular child to be adopted, the parents are permitted to express certain preferences like age, health, gender, skin color, and religion of the child. Mostly, it takes two to four years for the child adoption process to be completed.
Documents for Adoption
Different documents required for the child to be adopted are:
- Adoption application
- 4 copies of the husband and wife together
- Marriage certificate and age proof
- Latest HIV and Hepatitis B report of the couple
- Reason to adopt
- Income certificate
- Residence proof
- Investment details
- Reference letters: from 3 people
- Any other document as required by the agency or the court.
In India, if a child has been adopted officially, the matter of return lies with the court. They get to decide if the child can be returned. It’s a long winding process and differs from case to case.
Challenges and Way Forward
While adoption procedures have been streamlined, delays and bureaucratic hurdles remain prevalent, discouraging prospective parents and affecting children in need of care.
Courts have emphasized the need to address such delays, and aggrieved parents may seek legal recourse to expedite the process.
Conclusion
Child adoption should be a joyous journey, not a stressful ordeal. If you’re struggling with legal complexities, disputes, or delays in the adoption process, then you may move to the constitutional courts and seek appropriate decisions from the concerned and ensure that the process is timely concluded as although child adoption is regulated by several legislations, the practical enforcement is lacking.
For seeking personalised information regarding the legal remedies available get in touch with Ashwarya Sinha at: info@ashwaryasinha.com and office@ashwaryasinha.com
