Get Yourself Informed On The Updated Laws And New Rules For Adoption In India

Prospective adoptive parents need to prepare themselves and get informed on the new Indian adoption rules and procedures.

For people interested in adopting a child from India, there are two main areas of preparation: understanding the impact of adoption on everyone concerned and the legal procedure related to adoption.

The impact of adoption on all parties concerned

Adoption is one way to build a family. However, in our society, this way of building a family comes with unique challenges and responsibilities.

Adoption starts with grief and loss – biological mothers/fathers have taken a tough decision to not parent this child for reasons of their own.

Adoptive families end up making decisions that biological ones don’t think twice about – disclosing the fact of adoption to the child in an age appropriate manner, dealing with family attitudes and pressures, stigma related to the child’s origins, etc. These are areas that require thought and informed personal view points.

Once a person/couple is sure that adoption is the way forward for them, the procedural aspect gains importance.

You can also watch this video on the joys and challenges that come with adopting a child.

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Laws related to adoption

In India, there are three laws that govern adoption – The Hindu Adoption and Maintenance Act (HAMA), 1956, The Guardians and Wards Act (GWA), 1890 and The Juvenile Justice Act (JJ Act), 2015.

The passing of the Juvenile Justice Act in 2000 heralded a holistic view of ‘children in need of care and protection’ and brought adoption into the scope of this Act. This Act was amended twice in 2006 and 2011 to change different provisions and was in the process of being repealed in 2014. Amendments were requested from NGOs and civil society participants and the process of making our laws more progressive was continuing when the Act was repealed in a knee jerk reaction to the Nirbhaya case in 2015.

In that process, advances made in adoption thought and language have been set back by a decade. A new set of rules framed by the Central Adoption Resource Agency (CARA) impacts the procedure followed by aspiring adoptive parents.

New adoption rules and procedures

Eligibility of prospective adoptive parents

There are no changes to who is eligible to adopt. Adoptive parents may be couples or single persons:

• who are physically, mentally and emotionally stable, financially sound and motivated to adopt a child;
• without a life threatening medical condition,
• with a minimum of two years of a ‘stable marital relationship’ for couples, with or without biological children
• with a minimum age difference of 25 years between parents and child

Single/divorced men are eligible to adopt a male child while single/divorced women may adopt a child of either gender. Couples parenting more than 4 children are not eligible to adopt. The composite age for eligibility on the date of registration on the CARINGS system is as follows:

Non-resident Indians are now considered at par with resident Indians in terms of priority for adoption of Indian children, a major difference from previous regulations.

While the Act and its rules do not specifically prohibit LGBT individuals from adopting, the provisions do not specifically allow them to adopt. Since a same sex marriage is not recognized in India, a gay couple would not be able to jointly adopt a child. How agencies use their discretionary powers in the case of LGBT individuals who declare their sexual orientation is unclear. It is surmised that a single LGBT person could adopt but his/her partner would not have any legal rights over the child as our laws stand today.

Adoption procedure for resident Indians

The following flowchart shows the current procedure for adoption by resident Indians. Registering online is a big difference in procedures through the new adoption rules.

Previously, there was a significant human element involved with a matching up of the child to the parents through pictures. The idea was to try and ensure that a complete stranger would not wonder if the child belongs to the family purely on the basis of looks.

Once the child is matched to a family, he/she is placed in pre-adoptive foster care. Since the legal process to formalize the adoption takes time, adoptive parents are allowed to take their child home after an order for pre-adoptive foster care is issued by the courts.

If prospective adoptive parents do not ‘select’ a child among those shown to them, they lose their seniority in the online queue and go to the bottom of the list.

A formal adoption order is issued by the courts before the entire process is completed.

Timeframe

The timeframe is a variable factor. While timelines have been provided for specifically in the rules, prospective adoptive parents need to be aware that these are usually not strictly followed in practice. While the Central Adoption Resource Agency continues to try to streamline processes and shorten the time taken for a child to be physically placed in a family, these rules have only guidance value on the ground.

Currently, the process can take anywhere from 8 months – 2 years, depending on how many children are legally clear to be adopted. The fact that India’s adoption statistics is only around 4,000 children or less per year gives us an idea of the kind of delays that adoptive parents need to be prepared for.

Source: CARA website

Procedure for International Adoption

Given the complexities of processes when two countries’ governments are involved, international adoptions take longer and requirements change based on the countries involved. The usual rule of thumb is that prospective adoptive parents get a home study done in their country of residence and then register in India online, through their agency.

The standard procedure is given in the CARA rules here. International prospective parents will need to consult immigration specialists and adoption specialists to get an idea of what the procedures will entail for them. More information is available here on adoption for non-resident Indians specifically.

Points to note

• The Government is the custodian for all children who are not placed in families. This means that no one other than specialized adoption agencies are authorized to place children in adoption, after a legal process is followed. This process ensures that the parental rights of the biological parents have been legally terminated. Parents whose children are given to them by hospitals, doctors or other personnel have not gone through the legal process, leaving them open to potential custody issues later, if biological parents trace the child. The need to follow the legal procedures cannot be emphasized enough.

• Since the Government is the custodian, ethical adoption mindsets have always held that it is their duty to see that a family is found for a child. While this has not been changed through the laws, current adoption rules have ended up contravening this in practice to find ‘a child for a family’. It is of concern to see that prospective adoptive parents can view up to 6 children and ‘reserve’ a child for 48 hours. Child rights activists continue to petition the government on the ethics of these specific provisions.

Placing a child in a family at the earliest is the ideal scenario for optimal growth and development of India’s children. The use of technology leading to a reduction in delays and the streamlining of processes is a laudable step by CARA. However, a lot more thought needs to be given to the child’s rights and dignity before we can be completely satisfied with our adoption laws, rules and procedures.

Images credit: Sangitha Krishnamurthi.

Header image source: Indian couple with daughter by Shutterstock.

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