Mr. Pragya Jain , Ms. Ritika Mehta and Ms. Ria Jain ,
Parental Rights and Adoption Laws,
4 (2) IJLMH Page 475 - 492 (2021), DOI: http://doi.one/10.1732/IJLMH.26087
What if you come to know that the baby you were waiting for months born out as stillborn? Moreover, what if after few years you know that the same child is alive and living with another family? The question which will arise would be how did the child get their? What could be the possible reason for this? Who was lying the family or the hospital staff? What could justify the pain of those who were waiting for the little one for months? This article will aim to highlight the adoption process in India and other countries, which are part of Hague convention. Further, this Article will throw light on the process of adoption, factors to be considered before adopting a child and the laws applicable to the process of adoption in India. Moreover, this article will throw light on how the adoption process turns into trafficking process and authorities responsible to avoid trafficking. This article will also try to gather expert opinions of the parents who have adopted a child or is considering adoption, what challenges they might had/have to face through the adoption process.
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Adoption is a widely used process to establish relationship of parent-child between such persons who are not related by birth. In its simplest of senses, adoption is a process whereby a person assumes the parenting responsibility of a child, and in doing so, permanently transfers all the rights and responsibilities from his biological parents to himself/herself.
As per Merriam-Webster dictionary, legal adoption means, “to take voluntarily, (a child of other parents) as one’s own child especially in compliance with formal legal procedures”.
Adoption can be defined in both legal and illegal terms. Under the Indian legal adoption system, it is considered as a coalition between the party, who is willing to adopt the child and the child, which forms the subject matter of either ‘personal law’ or ‘general law’. Since, India is a diverse country with diverse religions, Hindus, Sikhs, Buddhist and Jains, by religion can make legal adoption under the Hindu Adoption and Maintenance Act, 1956. However, Muslims, Christians and Parsis have no separate adoption law and they have to approach the court under the Guardians and Wards Act, 1890.
Since, adoption is considered legal and valid, let us understand what ‘LEGAL ADOPTION’ is?
According to Section 2(2) of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2015, “Adoption means the process through which the adopted child is permanently separated from his biological parents and become the legitimate child of his adoptive parents with all the rights, privileges and responsibilities that are attached to the relationship”.
Adoption, being mostly like other social institutions, is a product of essential evolutionary and historic process. The reason why adoption was brought was to give right to family, to orphans, abandoned and surrendered children. In order to give family life to the child who is deprived of his biological family, adoption was considered as the best means.
Many conventions on the human rights specifically mentions the duty to protect and provide assistance to the children. Example of such convention is the Convention on Rights of Child, 1989 that provides for various rights concerning the children.
Children, in any country are the future of that country, which not only brings bundle of joys but also brings revolutionary changes. On one hand, children are being pampered, given all the love and affection, and are given all the necessities necessary for their development, some children are not fortunate enough to receive all such things. Every year more than 60,000 children are abandoned in India. Moreover, in many cases, these children become victims of either sexual violence or human trafficking.
Nevertheless, in some fortunate cases, these children are taken by various adoption agencies0, where they hope for a better life by waiting to be adopted. By being adopted, these children are given a second life and for this reason, adoption is on the rise. This paper will trace the evolution of adoption process through its roots being traced back to the English law. Along with that, a brief description of the history of adoption and how it has developed into modern laws as we know now. This paper will also highlight many other jurisdictions where adoption laws are being touched upon.
After that, it will throw light on the legal framework, which governs the adoption laws in India. This paper will also discuss the need for adopting the uniform civil code for the adoption laws and will try to bring out the comparison in the adoption laws for different religions. It will also highlight the adoption laws in different countries and on the inter-country adoption.
Then, this paper will try to evaluate the opinions of different experts in the industry by presenting the graphical representations of such opinions. The data will show us, to the extent the adoption laws have evolved and the shortcomings it has faced or is going to face. Lastly, it will evaluate the need for adoption laws, to what extent we have come so far and the way ahead.
II. Historical background
The earliest evidence in the Modern Era of documented adoption date back to the second half of the nineteenth century, when many state legislatures of United States of America started enacting adoption laws which further suggest that adoption as a practice must have been there before such legislatures were even passed since law is a mirror of society as per the general jurisprudence. In 1851, the first ever codified law of adoption was passed in the State of Massachusetts, United States of America, which was called “The Massachusetts Adoption of Children Act, 1851”. The western countries waited for seventy-five years to have a similar law, in the form of “Adoption of Children Act, 1926”.
In India, adoption is considered to be a part of personal laws and hence is governed separately for Hindus per law and other religions which is also why there is no uniform code for the same. Adoption for Hindus, Sikhs, Jains, Buddhists and Sikhs follow the Hindu Adoption and Maintenance Act, 1956 whereas, Muslims, Christians, Parsis and Jews are governed by the Guardians and Wards Act 1980, according to which they cannot adopt a child and give it their family name however they can become the guardian of the child as per the law. Hindu Law is the only law that treats an adopted child as an equivalent to a natural born child the reason for which has been explained in the previous sections. According to then old Hindu law, only male issues could be adopted and orphans couldn’t be adopted since there was permission required from the patriarchs of both the families and the consent or lack thereof of women was immaterial and even after this, there were restrictions on the caste of the adopting parents and the adoptee. However, such feudalistic pattern of law was changed with due time since as per the modern Hindu law, every Hindu, male or female has the capability to adopt provided they are of the age of majority and are of sound mind.
III. Who can adopt and who can be adopted?
A child can be adopted if s/he is:
An orphan abandoned or surrendered (OAS) child who has been declared legally free for adoption by the Child Welfare Committee (CWC).
A child of a relative (a relative means the child’s paternal uncle or aunt, a maternal uncle or aunt or paternal and maternal grandparents).
A child or children of spouse from earlier marriage surrendered by the biological parent(s) for adoption by the stepparent. (Section 38 and 56 of the JJ Act, 2015 and Regulation 4 of Adoption Regulations)
Further, not only who can be adopted but also age and marital status are also factor, which will decide adoption, and the same are discussed below:
Prospective adoptive parents (PAP): who are physically, mentally and emotionally stable, financially capable and who do not have any life threatening medical conditions are eligible to adopt.
The minimum age difference between the child and parent shall not be less than twenty-five years
Married couples with at least 2 years of stable marital relationship
Both spouses must consent for adoption in case of a married couple.
The composite age of the married couple does not exceed 110 years
Single persons with or without biological or adoptive children can adopt provided they satisfy the following:
(a) A single female can adopt a child of any gender
(b) A single male is not eligible to adopt a girl child
(c) Age of a single parent does not exceed 55 years.
(d) Must have less than four children unless they are adopting a child with special needs, a hard to-place child, a relative’s child or a step-child.
The age of child in ration to that of the prospective parent should be:
Age ratio of child
Maximum age of composite parent (Husband and wife)
Maximum age of single parent
4 to 18 years
8 to 18 years
After so many guideline and restriction to be followed, there is another factor, which is nationality.
Indians: A decree of court will be required,
Any Non-Resident Indian, Overseas Citizen of India or foreign prospective adoptive parents: Living in a country which is a signatory to the Hague Adoption Convention and wishing to adopt an Indian child, can approach the Authorised Foreign Adoption Agency or the Central Authority concerned, as the case may be, for preparation of their Home Study Report and for their registration in Child Adoption Resource Information and Guidance System
In case, there is no Authorised Foreign Adoption Agency or Central Authority in their country of habitual residence, then the prospective adoptive parents shall approach the Government department or Indian diplomatic mission concerned in that country for the purpose.
IV. Why regulating adoption is important?
Now after all the understanding of law and guidelines the question comes that why crime like child trafficking for adoption, prostitution, forced labour and the ongoing list continues?
How does these children get engulfed in these vicious circles?
In India there are several cases where children are either kidnapped for trafficking either to be sent to slave houses or for adoption. Where a statistics available at www.nhrc.nic.in suggesting the number of victims and survivors prosecution of traffickers and other exploiters and changes proposed in Immoral Traffic (Prevention) Act (ITPA).
Highlights of the Report:
5% of the victims of CSE are in the age group of 22 to 35 years.
3% entered prostitution by the age of 18.
5% of victims had been convicted earlier on charges of soliciting.
2% of rescued victims had health problems.
5% of the prostitutes’ clientele are married.
6% of the clients never encountered police in the brothels.
7% were victims of CSE before becoming brothel owners.
90% of the traffickers were Indians.
60% of the cases of trafficking go unreported as stated by police officers.
40% of the police officials interviewed were unaware of trafficking.
V. Laws Applicable
Adoption in India is considered under the part of personal laws as has been explained in the aforementioned section of Historical Significance. The personal laws can be broadly described as the Hindu Law and the Non-Hindu law as has been defined under Section 2 of the Hindu Adoption and Maintenance Act whereby a Hindu is defined as a person who:
Is a Hindu by religion in any form, be it an Arya Samaji or Radhaswami etc.,
Is either a Buddhist, Jain or a Sikh,
Took birth to Hindu parents,
Is not Parsi, Christian, Muslim or Jew and is not governed under Hindu law,
Any other person domiciled in India and is not Parsi, Christian, Muslim or Jew.
The act expressly excludes some religions. The Supreme Court defined who is a Hindu in the case of Shastri vs. Muldas and held that Satsangis, Arya Samaji and Radhaswami etc. belong to the Hindu religion as they originated under one main Hindu philosophy.
There are separate statutes which govern the separate communities, for Hindus per law; there is Hindu Adoption and Maintenance Act, 1956 which was adopted after the independence in an attempt to modernise and codifying the Hindu law. The act in attempt to promote gender equality and social justice removed some olden laws which were discriminatory against a particular gender. For the non-Hindu society, there was a separate law needed keeping in mind the personal laws of the other communities, which became the reason for the creation of Guardians and Wards Act of 1890. This law was particularly charted for Muslims, Christians, Parsi and Jews because their personal laws do not allow for complete adoption, hence only guardianship was allowed and it is applied to all children regardless of race or creed. It does not confer the Parent and Child relationship between the adopter and the adoptee.
(A) Hindu Adoption and Maintenance Act, 1956
The Hindu Adoption and Maintenance Act, 1956 was introduced as a part of the whole “Hindu
Code Bills” which were introduced in the 1950s to standardize and codify the existing Hindu Law. The provisions of this act dealt particularly with the legal procedure of adoption of children by the adopters. It clearly defined and answered many questions as to what were the requirements to adopt a child, what was the effect of the adoption, who could be adopted and the other conditions necessary for adoption.
According to this act, only after fulfilment of certain criteria can a Hindu person adopt a child. The prerequisites of a person to be able to adopt a child are that the person needs to be either a Hindu male or a female; the law lacks when it comes to the inclusion of the non-binary genders. The capacity of the males and females are describe under sections 7 and 8 of the act.
For a Hindu male to adopt a child, he needs to have:
Reached the age of majority,
A sound mind,
Must have a wife, whose consent is imperative for the adoption unless her consent cannot be considered valid due to reasons like insanity etc.,
In case of multiple wives, the consent of all the wives is imperative unless for the reasons stated above. (Bhola & Ors. Vs. Ramlal & Ors.)
If a male wants to adopt a female child under this act, he must be at least twenty one years of age or older than the child he wishes to adopt along with all the above mentioned conditions.
For a Hindu female to adopt a child of the act, she needs to:
Have attained the age of majority,
Be of sound mind,
Be either divorced, widowed or unmarried
If a female wants to adopt a male child under this act, she must be at least twenty one years of age or older than the child she wishes to adopt along with all the above mentioned conditions. There exists a huge gender bias in this law whereby men are given more leverage than the women and the non-binary gender is not even considered. A married woman is not able to adopt even after the consent of the husband unless the husband is of unsound mind or has renounced the world or has converted to another religion or dies, however a man can adopt a child after the consent from his wife/ wives. This discrimination can be observed in the case of Malti Roy Choudhary vs. Sudhindranath Mazumdar in which the appellant was the daughter adopted by the mother and after her death, became the single heir to the property left behind. The court held that since a Hindu woman cannot adopt by her own capacity, and it was established that the appellant was indeed adopted by the mother and not by the father, hence she could not be considered as the heir to the property since the adoption was invalid per law.
(B) Guardians and Wards Act, 1890
The Guardians and Wards Act, 1890 was introduced to supplant all other laws of adoption and was applicable to all the states of India except Jammu and Kashmir. It was particularly delineated for Muslims, Christians Parsi and Jews since adoption was not provided for in their personal laws because only guardianship was provided in the same. It was made in order to protect the rights of the guardians and safeguard the interest of the minor who was to be adopted. A minor under this law was a child under the age of eighteen as was established in the Indian Majority Act of 1875. A guardian under this law is a person under whose care the minor and its property are and a ward is a minor under the guardianship of a guardian who looks after its property. A person maybe appointed as the guardian of a child after either abandonment or death etc. of the biological parents after an application by the person willing to undertake guardianship in the court and unlike the Hindu Adoption and Maintenance Act, a minor (ward) and its property may have more than one guardian. Under this law, the courts had the authority to exercise its discretionary powers to keep in mind the welfare of the minor and its property keeping in mind its age, gender, religion, the minor’s preference etc.
(C) Muslim Law
According to the Muslim Law, Adoption is not possible however there can be the relation of guardian and ward. The Islamic term which is somewhat similar to the general concept of adoption is “Kafala”. The Islamic scholars like Ameer Ali and Abdul Rahim claim that adoption as a concept in Hindu law where the relationship of parentage is created is not recognised in the Muslim/ Mohammedan law, however, the concept of guardianship is neither forbidden nor foreign. The Holy Quran mentions an incidence of adoption when Prophet Mohammad himself took Zaid, who was the son of Haris in adoption. Often, Surah Al-Ahzab [33:4-6] is quoted as a contention that adoption is not allowed in Muslim law. However, simple interpretation of the law clarifies that in order to avoid confusion and mixing of family lineages. There are few rules in the “Kafala”, that are to be kept in mind that are as under:
An adopted child must retain his/ her own biological family name and does not change his/ her family name
An adopted child will inherit from his biological parents and not from his adoptive parents unless specially provided for
If the adopted child gets property from his biological parents, adoptive parents are supposed to safeguard the property and not consider or even mix it as their own. They are supposed to be mere executors.
These rules build on the foundation that the child is not becoming their own but they are only guardians of someone else’s child.
(D) Christian law and Parsi law
The personal laws of these communities also do not give recognition to adoption and adoption for these communities is done through Guardians and Wards Act of 1890 whereby the interested parties for adoption must apply with an application to adopt a child in the court. They can adopt from an orphanage or an NGO as with due process as well. Christians can also adopt under Section 41 of the Juvenile Justice (care and protection of children) Act as well however, in 2006, the Supreme Court held that the Juvenile Justice (care and protection of children) is a secular law and includes all religions (Shabnam Hashmi vs. Union of India).
(E) Juvenile Justice Care Law
Applicable to all citizens, the Juvenile Justice (care and protection of Children) Act 2006 enables the adoption of two children of the same gender and endows the relationship of parent and child instead of guardian and ward. The main motive of this law was to rehabilitate children who have had conflicts with law and are in need of special care and protection up to the age of eighteen.
(F) English law
The English law recognised adoption only in the early twentieth century, as the “Adoption of Children Act 1926” was introduced. The major purpose of this act was to stop the biological parents of an adopted child to claim the child back. After this law, another act was pass that was more comprehensive in nature 1950, which was further improvised in 1958. Now, the law that governs adoption is “Adoption and Children Act 2002”. According to the English law, adoption creates the relation of the adopting parent and the adopted child to be that of a parent and a biological child born from a marriage. Anyone who is twenty-one years old or older can adopt a child, as there is no upper age limit to the same. In addition to this, anyone can adopt a child irrespective of their relationship status, i.e., anyone can adopt even if they are single, married, living in together, civil partnership, unmarried couple (regardless of same or opposite sex) or even if they are the partner of the child who is being adopted. Adoption is not limited to only British citizens however they or their partner must have a permanent home in the United Kingdom and they or their partner must have lived in the United Kingdom for at least a year prior to the application of adoption. The English law also provides for overseas adoption and includes the local body from where the child is being adopted.
(G) American Law
America was the first country to codify their adoption laws. Currently, its adoption system is govern and facilitated by multiple laws major two of which are the Family First Prevention Services Act and the Preventing Sex Trafficking and Strengthening Families Act. Adoption in America is of four types: (i) By family members, (ii) Via the Foster Care system, (iii) International Adoption and (iv) Local agencies and NGOs.
Family members do most adoptions in the United Sates, i.e., a stepparent who is married to a birth parent or by any other relative. This kind of an adoption is known as the “Second parent adoption”. There is also a foster care system, which is made for the well-being of the children who cannot live with their biological parents due to multiple reasons. This system many times saves the child from domestic abuse and other multitudes of hardships as well. If any prospective adopters do not adopt a child and his custody is not given back to the biological parents, the child is made to leave the foster care after its eighteenth birthday. There is a central database for adoption agencies to help with the adoption of children who are awaiting homes. International Adoption enables adoptive parents to adopt from another country; this is also known as inter-country adoption.
(H) Hague Adoption Convention
The Hague Convention on Protection of Children and Co-operation in respect of inter country adoption 1993 is an international convention which aims to stop child laundering and child trafficking and promote and regulate International adoption in order to safeguard children from abuse and exploitation which accompanies international adoption.
In the preamble of the constitution, it is stated that:
“Intercountry adoptions shall be made in the best interests of the child and with respect for his or her fundamental rights and to prevent the abduction, the sale of, or traffic in children and each State should take, as a matter of priority, appropriate measures to enable the child to remain in the care of his or her family of origin.”
The Hague Convention for adoption has multiple requirements. The adoption process involves the establishment of a “Central Authority” the purpose of which is to serve as the country’s main contact in adoption processes. The adoption laws of both the countries shall be verified and used to sanction the adoption process. Article III of the convention gives out the complete responsibilities that the central authority designated by both the states must authorize the whole process.
The Implementation and Operation of the 1993 Intercountry Adoption Convention: Guide to Good Practice, prepared by The Hague Conference on Private International Law (HCCH), provides further support to the process, use and construal of the whole Convention.
VI. Survey and comments of industry experts
A Survey was conducted via questionnaire made on Google forms. This survey had 50 participants and was used to gather information and the views from public. The following is Questionnaire of the Survey
Are you aware of the procedure of adoption followed in India?
Whether you or someone you know has adopted?
Do you plan to adopt or have you adopted?
Yes, I plan on adopting
No, I do not plan on adopting
Maybe, I might adopt
Haven’t considered adoption
Is it important to keep the adopted child connected to their culture?
Should the child be given a prior opportunity to live with the adopting parents like a trial run for adoption?
Do you believe that instead of having separate personal laws for different communities in India, there should be a law applicable to all the citizens altogether?
Prefer not to say
According to the Hindu law of adoption, if you have a living son, grandson or great-grandson, in case of adoption of a son or a daughter or granddaughter, in case of adopting daughter, you cannot adopt.
Whether, the requirement of minimum age difference of 21 years between adopting father and daughter, and adopting mother and son, justified or not?
Do you feel that the current laws in India are sufficient and updated enough to be able to handle adoption?
Yes, the current laws are sufficient as it is
Yes, but the current laws need to be amended a tad bit
No, the laws need to be completely changed
The following is the Graphical Representation of the answers from the respondents of the above questionnaire. The results are quite
Expert Opinions on Adoption Laws
According to the United Nations Children’s Fund, India, have 29.6 million orphaned and abandoned children.
SOS Children Village conducted a study in 2011 and concluded that approximately 4% of Indian child population is orphan.
Another figure provided by Child Line India Foundation showed that out of 30 million children, only 470,000 children were in institutionalized care.
These statistics shows that there is a need for readjustment in adoption policies and laws because currently millions of children future is wasted and they are denied future opportunities because of complex adoption laws.
An adoption counselor at Families of Joy Foundation comments that more than 50% of prospective adoptive parents who come to them, have exhausted all other options and then come to them for adoption.
The Government’s Central Adoption Resource Authority statistics shows that while in 2010 5,693 children were adopted, only 3,276 children were adopted in 2017-18. In our country, where more than 30 million children are either orphaned or abandoned, not even 10,000 children gets adopted.
A survey from Department of Community medicine, Armed Forces medical college, Pune shows that only 8% of the parents have knowledge of adoption process.
Therefore, the first major problem in Indian adoption legal system is that parents consider it the last resort and not the primary source of having the child. Parents are ready to spent lakhs of rupees to conceive through IVF or other medical facilities but decline to adopt a child and if they do not find any way to conceive, then they think about adoption.
Another problem is that even if parents are willing to adopt, they are not aware of legal procedure of adoption. Moreover, those who are aware, still have to face many problems in adopting a child, from either lawyers or the organizations, which makes it difficult for parents to think for adoption.
Adoption, being widely regarded as a noble cause, which tends to change not only one life but also many lives. It tends to bring happiness to kids, who are either orphaned or abandoned. At the same time, it tries to fills the void in the life of parents, who yearned for kids.
As rightly said, “Adopting a child will not bring change in the world, but it will bring to the whole world of that child.” adoption tends to benefit the child who will be treated as a natural born and will be given all the love, care and affection, thereby giving chance for humane side to shine through.
That being said, adoption should be performed at large scale, as in country like India with population of more than a billion, there are huge number of unwanted children and that number is increasing day by day. And as seen in the past few years, both the agencies and the parents have shown more interest in adopting girl child over boys, which can be seen as a positive step towards controlling female feticide and infanticide problem as well.
Therefore, there is a tremendous improvement in the adoption laws for Hindus. However, the position of Muslims and its women tends to remain the same due to lack of uniform civil code on adoption for them. Because of this drawback, they have to go through rigorous procedure to adopt a child, where some might fell that they cannot legally adopt a child.
Therefore, lack of willingness and lack of knowledge are the two of the major reasons of declining adoption rate in India. Adoption, in way tend to harm the welfare of the child, and tries to provide new life to the child. By providing parents, comfort, nourishment adoption brings a bundle of joy for the child as well as parents. The adopted child will be able to get proper care and protection and will be having better chance at a good future.
Therefore, only by adapting uniform civil code, other religions also will be able to adopt child, which will not only improve the health and mind of child but of childless parents as well. No doubt, it will be a complex procedure and the road is not going to be easy, however there is still a long way to go.
 Merriam-Webster, Meaning of the word ‘Adoption’, Merriam-Webster Dictionary, (Mar. 5, 2020 6:40 PM.), https://www.merriam-webster.com/dictionary/adoption.
 More on Section 2 of Juvenile Justice Amendment Act, 2015, Ministry of Law and Justice (Jan. 1, 2016 9:45 AM), http://cara.nic.in/PDF/JJ%20act%202015.pdf.
 Government of India, More on Section 2 of Hindu Adoption and Maintenance Act, 1956, Ministry of Law and Justice (Mar. 20, 2020 18:45), https://tcw.nic.in/Acts/Hindu%20adoption%20and%20Maintenance%20Act.pdf
 Shastri v. Muldas, (1959) 61 BOMLR 1016 (India).