CHAPTER-I

INTER COUNTRY ADOPTION: AN INTRODUCTION

The child cannot wait,
Right now is the time his bones are being formed,
His blood is being made and
His senses are being developed.
To him we cannot answer tomorrow
His name is today.
-Nobel Laureate Gabriel Mistral
CHAPTER-I
AN INTRODUCTION TO INTER COUNTRY ADOPTION
1.1 THE BACKGROUND
Adoption involves the creation of the parent-child relationship between individuals who are not
naturally so related. The adopted child is given the rights, privileges, and duties of a child and
heir by the adoptive family. 1 According to Section 2(3) of Draft Guidelines Governing Adoption
of Children, 2014 as well as Section 3 of the Guidelines Governing Adoption of Children,
2015,2“Adoption” means a process through which the adopted child is permanently separated
from his biological parents and becomes the legitimate child of his adoptive parents with all the
rights, privileges and responsibilities that are attached to the relationship; 3According to Black
laws dictionary, Adoption means, “the act of one who takes another's child into his own family,
treating him as his own, and giving him all the rights and duties of his own child. Adoption is a
juridical act creating between two persons certain relations, purely civil, of paternity and
filiation. 4 It is a two way process, in one way a childless parents has a child to call their own and
in the other way child with or without family has a new family in which the child is obliged with
all the legal rights and duties as a natural one. Adoption is an act by which the legal relation of

1
The free dictionary, available at: http://legal-dictionary.thefreedictionary.com/Adopting+parents
2
Adoption Procedure, Chapter-I, Preliminary, The Guidelines Governing Adoption of Children, 2015.available at:
http://cara.nic.in/InnerContent.aspx?Id=72#
3
Section 2 (3) of Draft Guidelines Governing Adoption of Children, 2014, available
at:http://www.wcd.nic.in/CARA%20_Guidelines_for_Website_2014.pdf.
4
Black's Law Dictionary, 2nd Ed, available at: http://thelawdictionary.org/adoption/
Parent and child is created.5 However, the Juvenile Justice (Care and Protection of Children) Act,
2000, 6did not define „adoption‟ but by the amendment of 2006 that the meaning thereof came to
be expressed in the following terms: “2(aa)-“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”. 7Adoption is the act of legally taking a child to be taken care of as your own.8
Adoption is a way in which the following acts happened: to choose and bring into a certain
relationship; especially, to take into one's own family by legal process and up bring as their own
child.9The meaning of adoption in strict sense could be defined as: to take on the legal
responsibilities as parent of (a child that is not one's biological child). 10

Adoption is the act of lawfully assuming the parental rights and responsibilities of another
person, usually a childunderage18. 11Adoption refers to the act by which an adult formally
becomes the guardian of a child and incurs the rights and responsibilities of a parent. At the
conclusion of the formal process, a legal relationship between child and guardian will have been
formed. The legal relationship results in the adoptee becoming the legal heir of the adopter and
terminates any legal rights then in existence with the natural parents.12The Cambridge dictionary
provides that an adopted child is when a child has been legally taken by another family to be
taken care of as their own child. Also an adopted country is one where someone chooses to live
although they were not born there.13Meanwhile, Henry Campbell Black, in Black's Law
Dictionary (Second Edition), re-echoed the definition of adoption as an act of one who takes
another's child into his own family, treating him as his own, and giving him all the rights and

5
Definition of Adoption, available at: http://encyclopedia2.thefreedictionary.com/adoption
6
The Juvenile Justice (Care and Protection of Children) Act, 2000 (Act No. 56 of 2000)
7
Section 2(aa)- Define Adoption, The Juvenile Justice (care and Protection of Children) Act, 2000 (Act No. 56 of
2000), available at: http://wcd.nic.in/childprot/jjact2000.pdf
8
Cambridge Dictionaries Online, available at: http://dictionary.cambridge.org/dictionary/british/adopt
9
Webster's New World Law Dictionary, 2010 by Wiley Publishing, Inc., Hoboken, New Jersey, available at:
http://www.yourdictionary.com/adoption
10
American Heritage Dictionary of the English Language, Fifth Edition, 2011 by Houghton Mifflin Harcourt
Publishing Company, available at: http://www.thefreedictionary.com/adoption.
11
Medical Dictionary, 2012 define Adoption, available at:
http://medical-dictionary.thefreedictionary.com/Adoption,
12
Wex Legal Dictionary Encyclopedia, Legal Information Institute (LII), available at:
https://www.law.cornell.edu/wex/adoption.
13
Cambridge Advanced Learner's Dictionary, available at: http://dictionary.cambridge.org/dictionary/british/adopt
duties of his own child.14Explanatorily, adoption is „a Court procedure by which an adult
becomes the legal parent of someone who is not the adult's biological child. An adoption decree
creates a parent-child relationship recognized for all legal purposes including child support
obligations, inheritance rights, and custody. An adult can also adopt another adult under certain
circumstances‟.15Adoption is a two-step judicial process in conformance to state statutory
provisions in which the legal obligations and rights of a child toward the biological parents are
terminated and new rights and obligations are created between the child and the adoptive parents.
Adoption involves the creation of the parent-child relationship between individuals who are not
naturally so related. The adopted child is given the rights, privileges, and duties of a child and
heir by the adoptive family. 16

According to Baker's Evangelical Dictionary of Biblical Theology; adoption is that privilege,

bestowed upon those who are united with Christ, and justified by faith, by which they are
admitted into the family of God, adopted as his children, and made joint heirs with his own Son.
Although it has legal connotations, adoption is distinguished from justification.17Adoption is an
act of leaving one's natural family and entering into the privileges and responsibilities of another.
In the Biblically, adoption is one of several family-related terms used to describe the process of
salvation and its subsequent benefits. 18It is pertinent to know the Latin meaning of the word
„adopt‟ which is 'adoptare', meaning to choose, to take by choice into a relationship; especially to
take voluntarily (a child from other parents) as one's own child. Adoption is the act of legally
placing a child with a parent or parents other than those to whom they were born. It can be
defined as the statutory process of terminating a child's legal rights and duties towards the natural
parents and substituting similar rights and duties towards adoptive parents by establishing a
parent-child relationship between persons not so related by the birth of the child. For the

14
Henry Campbell Black ,Black's Law Dictionary (Second Edition ), available at:
https://books.google.co.in/books?id=AqCAAwAAQBAJ&pg=PA63&lpg=PA63&dq=Adoption+is+an+act+of+one
+who+takes+another%27s+child+into+his+own+family,+treating+him+as+his+own,+and+giving+him+all+the+rig
hts+and+duties+of+his+own+child&source=bl&ots=yTRb4w3Dd0&sig=Qtw3bcB3knPrbBtHMPx2aGSvaYQ&hl=
en&sa=X&ei=GOtKVYTGNZHluQTV4YGwBw&ved=0CCoQ6AEwAw#v=onepage&q=Adoption%20is%20an%
20act%20of%20one%20who%20takes%20another's%20child%20into%20his%20own%20family%2C%20treating
%20him%20as%20his%20own%2C%20and%20giving%20him%20all%20the%20rights%20and%20duties%20of%
20his%20own%20child&f=false.
15
Nolo's Plain-English Law Dictionary, available at:http://www.nolo.com/dictionary/adoption-term.html.
16
West's Encyclopedia of American Law | 2005, available at: http://www.encyclopedia.com/topic/adoption.aspx
17
Theopedia define Adoption, available at: http://www.theopedia.com/Adoption
18
Baker's Evangelical Dictionary of Biblical Theology, available at:
http://www.biblestudytools.com/dictionary/adoption/
parentless or the abandoned child, adoption means a balanced physical and psychological family
environment and to the desirous parents, chances to become parents and experience family
growth.19 More also, Adoption can be described as “the institutionalized social customary
practice through which a person, belonging by birth to one family or relationship group, acquires
new family or kinship ties which are socially defined as equivalent to biological ties and which
supersede the old one, either wholly or in part”.20 Adoption is the process whereby a court
irrevocably extinguishes the legal ties between a child and the natural parents or guardians and
creates analogous ties between the child and the adopter‟s. For abandoned children adoptive
parents are the next best substitute for the biological parents and it is of great help in alleviation
of the sadness of the deprived children. However, adoption has always been regarded as a
wonderful opportunity to give the child with home and to adoptive parents a loving child. It is
apposite to note that it in the early days, the practice of adoption was covered in secrecy, which
was regulated in the traditional family. That means, the traditional mind set of that time was that,
the issueless couple adopts a child with a view to ensure that continuity of tradition and to avoid
alienation of property. However, in the early seventies the professional intervention 21of child
welfare agencies on the process of adoption made or played a significance role which began the
changes in social attitude and concept of adoption generally. This has enhanced the rate of the
adoption and today, child emerged as the fundamental of the family and more and more couple is
coming forward to adopt a child as soon as it is known that it is not possible for them to have
their biological child. 22

1.2 HISTORICAL DEVELOPMENT OF ADOPTION LAW

Adoption in Roman law was a very ancient institution having its root in ancestor worship. The
maintenance of the family “SACRA” observance in honour of the ancestor of the family, was
regarded as the highest significance and when a man was old and was likely to die without a
child to carry on those observance, he was permitted to abrogate some other independent person

19
Law teachers, Inter Country Adoption & Private International Law, available at: http://www.lawteacher.net/free-
law-essays/family-law/an-analysis-of-inter-country-law-essays.php.
20
Law reform, Report on Aspects of Inter-country Adoption Law, available at:
http://www.lawreform.ie/_fileupload/reports/radoption.pdf.
21
E.L. Johnson, Family Law, 121 (Sweet and Maxwell, London 1965)
22
HariDevKohli, “Supreme Court on Hindu Law”, (Universal Law Publishing Co. Pvt. Ltd., Delhi 2010)
“a peter families and thereby make him a son”. 23 Thus under Roman law adoption is the way to
continue the family. By the influence of Roman law the institution of adoption extended to
different countries which birth it civilization. In simplicity adoption is a way of forming family,
involving the placement of a child with the adoptive parents, followed by legal process, which
establish a child as if he or she was born to those adoptive parents. In addition the concept of
adoption was not unknown in Vedic times,24 in AitareyaBrahamanVIII 3 the legend of
Sunahseparefers to his father having sold him in adoption to King Harish Chandra and to its
subsequent adoption by the sage Vishwamitrawho had asura son of his own. 25 In Ganga
Sahaiv.Lekhraj Singh, Mahmood J. observed 26 that- “Adoption in Hindu law, being in the nature
of gift, three main features constitutes its elements apart from the questions of form which are:
the capability to give, the capability to take and to be the subject of adoption. These conditions
are presumed to be essential for the legitimacy of the transaction which is beyond the province of
the doctrine of factum valet”. Significantly variations can be witnessed in the legal, practical and
social level of adoption programmed with processes best suited to the children. In a wider sense
adoption may be termed as regularised social practice through which an individual belonging by
birth to one family acquires new family ties that are ethically and socially defined equivalent to
biological/natural ties and which succeeds the old ones either wholly or in part.

Haven defined adoption ineptly, it is essential to see how adoption evolves as a social
establishment. One of the oldest codes of the world, the codex Hammurabi way back in (18th
century) also contained provisions of the adoption of children with particular findings. However
the first primacy for a child is to be „cared for‟ by his or her own parents which can enshrine by
the Article 327, which states that „everyone has the right to life, liberty and security of person‟.28

23
Ibid.
24
Manu 22, Baudhayana 23, Yajnavalkaya and Vasistha: he laid down the following three propositions:

(i) The competency of both parents united is the principal;

(ii) That of the father alone independently of the mother is the mediocre, and
(iii) That of the mother, depending as it does on the assent of her husband, is an inferior alternative.
25
Mahendra Tiwari, “Human Rights and The Rights of Child In India”, XXXVI, Journal of Legal Studies 215
(2006)
26
Ganga Sahai v. Lekhraj Singh, (1887) ALL 253
27
Article 3 of U.N. Declaration, (United Nations General Assembly Declaration on social and legal principles
relating to the protection and welfare of children, with special reference to foster placement and adoption nationally
and internationally) provides that everyone has a right to life liberty and security of person.
28
The Universal Declaration of Human Rights, available at: http://www.un.org/en/universal-declaration-human-
rights/
Section 10629 provides that before a man can adopt foundling he must look for the child‟s parents
and if he finds them must return the child to them. It was a myth in ancient Rome that „to provide
a son and heir to a childless man as a means by which the family line was saved from extinction
was of paramount consideration in adoption‟. Several Roman emperors were adopted for this
purpose. The adoption for the child not reached puberty was earlier prohibited but later allowed
but only under strict condition. Under Hindu Law son-ship has a great importance. So to have a
son was considered a must for every Hindu family. It is one remarkable feature of Hindu
jurisprudence that throughout the Hindu period right from the Vedic age to this date Hindus have
always desired to have an aurasa i.e. natural born legitimate son, for the spiritual benefit and the
continuation of the family. 30 Since adoption was primarily a spiritual act in ancient Hindu law
adoption of daughter was not favoured so also the women did not have the right to adopt.31
Consequently, it can be concluded that adoption was surrounded by many conditions. Now it is
maintained and regulated by the Hindu Adoption and Maintenance Act, 1956. 32

Islamically, the practice of adoption varies widely across the globe from one country to another
due to cultural diversification but it is an exception under the Islamic Law and societies.

29
The Codex Hmmurabi (18th BC), available at:
https://books.google.co.in/books?id=mjMRSOxutuUC&pg=PA211&lpg=PA211&dq=section+106+that+before+a+
man+can+adopt+foundling+he+must+look+for+the+child%E2%80%99s+parents+and+if+he+finds+them+must+re
store+the+child+to+them.&source=bl&ots=VdGcoLFE3x&sig=0Nz90ao9yp2um5OxKtW6q8HyIbY&hl=en&sa=X
&ved=0ahUKEwjF9urP657LAhUOwI4KHWYaAY8Q6AEIGzAA#v=onepage&q=section%20106%20that%20bef
ore%20a%20man%20can%20adopt%20foundling%20he%20must%20look%20for%20the%20child%E2%80%99s
%20parents%20and%20if%20he%20finds%20them%20must%20restore%20the%20child%20to%20them.&f=false
30
In early 17th Century Dattaka-mīmāmsā considered to be the classical work on the topic of Adoption and
subsequently used by the British authorities as Hindu law. Later it was translated by Sutherland in 1821. Another
renowned work Dattaka- chandrika is attributed to Kuvera. The main points, according to the Dattaka-Chandrika,
are as follows: there are two motives in adopting a son; viz.

(i) to perform obsequial rites is honor of the adoptive father and his ancestors,
(ii) to be the successor of the adoptive father. Any sonless man may adopt a son; 'sonless' implies the
absence of son, grandson and great-grandson.
Except for a Sudra, one cannot adopt a daughter's son or a sister's son. A person's single son cannot be given in
adoption. A woman cannot give away a son without the permission of her living husband. If the husband is dead, she
can do so in the absence of prohibition by the husband. An adopted son is placed on equal footing with a natural son.
In the Commentaries and Digests, while the father‟s power of giving in adoption is universally recognized, the same
power is denied or doubted to the mother. The learned writer of the DattakaMinansa quotes the following text of
Saunaka, “By one having an only son the gift of a son should not be made; by one having many Sons the gift of a
son should anxiously be made, and comments since the masculine gender is used in the compound word „by one
having many Sons‟ the gift of a son, by a woman is prohibited, available at:
http://webcache.googleusercontent.com/search?q=cache:http://ietd.inflibnet.ac.in/bitstream/10603/4130/11/11_chapt
er%25203.pdf.
31
J.C. Hall, “Sources of Family Law”, 87 (University Printing House, Cambridge 1966)
32
The Hindu Adoption and Maintenance Act, 1956 [Act No.78 of 1956] [21st December, 1956]
According to the interpretation of the Koran it introduced the prohibition of artificial creation of
family ties (Nasab) by tabbanni. The Koran explicitly specifies that the adopted sons shall not be
treated as natural one and shall not be named after their adopters. Due to this fact, numerous
Islamic countries are illustrated by the expression For example Kuwait on an early draft of the
UN declaration: “with regard to the paragraphs concerning adoption, posited and re-emphasized
the practice which is well known that adoption is forbidden because of confusion of lineage that
it poster show case. These paragraphs therefore cannot be accepted while some features of
adoption are to be found in our laws. They are included in the system of foster care which
performs its role in the psychological, health, social and educational care of the child with the
aim of securing a better life for him the in the future and granting him the nationality as a basic
pre condition”33. As this passage brings out the crucial point which is the creation of artificial
filiations bonds and is not tolerated but donate that a child who is raised by another family other
than his biological one remains legally unprotected. This takes us to the code of Napoleon of
1804 which marked the beginning of modern legislative concerns with adoption. This code
abolished the adoption of minors but strictly permits the adoption of adults who in their youth
had been cared for by the adopters for six years. 34 The adopters had to be 50 years of age and be
without descendants. The adoption was a contract that must be approved by the Court however
the Court asses the substantive condition and reputation of the adopter. Also, in1960 United
Nation sponsored one Leyzin seminar35 which is said to have inspired legislative work on
adoption both on international sphere and at national level.

1.3 KINDS OF ADOPTION

Adoption can be broadly categorized into two i.e. inter country and intra country, let‟s discuss
them in detail.

33
SudeepSaket& Rahul Soni, “A Conceptual study based on inert-country child adoption vis-a vis Human Rights of
Children” available at: http://ijsard.org/index.php/a-conceptual-study-based-on-inter-country-child-adoption-vis-a-
vis-human-rights-of-children/
34
M.V. Pradhan,” Supplement to the Law Relating to Minors”, 118, N.M. Tripathi Ltd Law publisher, Bombay
1954
35
A regional seminar in which only European States participated and which focused on international adoption
between European States, Supra note 33.
1.3.1 Intra-country or Domestic adoption
Domestic adoption is the placing of a child within the same country as the child‟s birth .this may
be achieved through a private agency or the state such as foster care Domestic adoption is a legal
process which a child who will not be raised by his birth parents become a full and permanent
member of another family. In most jurisdictions, domestic adoption begins with decision of
blood parents to place them with another family. Birth parents may play an active role in the
adoption process and may be involved in selecting an adoptive family. There are several ways in
which birth family and adoptive families connect, such as through personnel contact or an
adoptive professional agency. Private arranged adoption through facilitator is illegal in some
jurisdiction. In a private adoption, birth parents may have the option of choosing an open, semi
open or confidential adoption and birth parents may be given profile of waiting adoptive parents
to look at and choose from. In doing so, they become active participants in the adoption process
and may experience greater confidence in their adoption plan. In the alternative, birth parents
may request assistance from their adoption professional in choosing in adoptive family.

1.3.2 Inter country adoption

Inter country adoption is the process by which one can adopt a child from a different country
other than his own through permanent legal means and bring that child to his own country to
live with them permanently. Through inter country adoption, the legal transfer of parental rights
from births parents to another parent‟s takes place. In the inter country adoption a child and the
parents belongs to different nations.

1.3.3 Difference between Domestic and Inter Country Adoption

a) Nationality-the first major difference between domestic and inter country adoption is the
nationality. In the domestic adoption both the parents and child and adopted parents
belong to one country. But on the other hand in the inter country adoption the child and
the parents belong to different countries.
b) Trans-culture relationship-another important difference between these two is that they
have character of Trans-culture difference. In the domestic adoption the child and the
parents belong to the same culture because they are from one single country but on the
other hand in the inter country adoption the child and the parents belong to two different
culture which are totally different from one another. Procedure-of adoption-in the intra
 country adoption could be done within the country according to the law which is
available within the country but in the inter country adoption the adopted parents could
be appointed as the guardian of the child and the child will be adopted according to the
laws of the country of the adopted parents. Inter country adoption is a type of adoption in
which an individual or couple becomes the legal and permanent parents of child that is a
national of a different country. Generally, the prospective adoptive parents must meet the
legal adoption requirement of their country of residence and those of the country whose
nationality the child holds.
Such requirements are ascertaining the age of the child, fees, expenses and the amount of travel
time required in the Child‟s birth country because this varies from country to country due to the
fact that, each country sets its own rules, timelines and requirement surrounding adoption and
there are also rules that vary within the United States for each state36. However, the first effort
still always is to find the adoptive parents for children within the country itself to prevent any
problem of assimilation of the child in the family of the adoptive parents. This principle stems
from the fact that inter country adoption may involve trans racial, trans-cultural and trans-
national aspects which would not arise in case of adoption within the country and the first
alternate should therefore always be: to search adoptive parents for the child inside the country. 37

1.4 INTER COUNTRY ADOPTION

1.4.1 Introduction
Inter Country Adoption is an adoption of a child of another country. It can also refer to
transnational adoption which denotes the process which an individual or couple becomes the
legal and permanent parents of a child that is a national of different country. In furtherance,
prospective adoptive parents must meet the legal adoption requirements of their country of

36
US legal, „Inter-country Adoption Law & Legal Definition‟ available at:
http://definitions.uslegal.com/i/intercountry-adoption/
37
L K. Pandey v. Union of India, “in fact, the Draft Guidelines of Procedures Concerning Inter- Country Adoption
formulated at the International Council of Social Welfare Regional Conference of Asia and Western Pacific held in
Bombay in 1981 and approved at the Workshop on Inter Country Adoption held in Brighton, U.K. on 4th
September, 1982, recognize the validity of this principle in Clause 3.1 which provides : "Before any plans are
considered for a child to be adopted by a foreigner, the appropriate authority or agency shall consider all alternatives
for permanent family care within the child's own country", available
at:http://www.unodc.org/res/cld/caselaw/ind/1984/lakshmi_kant_pandey_case_1_html/Lakshmikant_Pandey_SC_Ju
dgment_-_1.pdf
residence and those of the country whose nationality the child holds. For example: adoption of an
Indian child by foreign parents. In this kind of adoption the child must have left for the other
country with the prior permission of his own country and will get the citizenship of that country
to which he is adopted parents belong.

Notably in India there is no enacted law governing inter-country adoption. Inter-country

adoption defines under section 2 (18) of CARA38‟s guidelines of 201539 in the following words
“Inter-country Adoption” means adoption of a child or children by persons having status of Non-
Resident Indians or Overseas Citizens of India or Persons of Indian Origins or Foreign
Nationals; An inter-country adoption is seen as one that involves a change in the child‟s habitual
country of residence, whatever the nationality of the adopting parents. An international adoption
applies to an adoption that involves parents of a nationality other than that of the child, whether
or not they reside and continue to reside in the child‟s habitual country of
40
residence. International adoption involves the transfer of children for parenting purposes from
one nation to another which presents an extreme form of what is often known as “stranger”
adoption, by contrast to relative adoption. 41

In New Brunswick, the term Inter-country Adoption has three general meanings:

 a person or couple adopting a child from another country;

 a person or couple adopting a relative child living in another country; and
 A New Brunswick child being adopted by a person or couple outside of Canada. 42
Adoption is when a child is permanently placed with a parent or parents other than his or her
birth parents, and parental rights and responsibilities are transferred from the biological parents
to the adoptive parents. International adoption takes place when the adoptive parents live in
38
Central Adoption Resource Authority (CARA) is an autonomous body under the Ministry of Women & Child
Development, Government of India. It functions as the nodal body for adoption of Indian children and is mandated
to monitor and regulate in-country and inter-country adoptions. CARA is designated as the Central Authority to deal
with inter-country adoptions in accordance with the provisions of the Hague Convention on Inter-country Adoption,
1993, ratified by Government of India in 2003, available at; http://www.cara.nic.in/
39
Adoption Procedure, Chapter-I, Preliminary, The Guidelines Governing Adoption of Children, 2015.available at:
http://cara.nic.in/writereaddata/UploadedFile/NTESCL_635760082361561985_english%20guidelines.pdf.
40
UNICEF(United Nations Children's Fund International Child Development Centre Florence), “Inter-country
Adoption”, Innocenti Digest, available at: https://www.unicef-irc.org/publications/pdf/digest4e.pdf
41
Elizabeth Bartholet, ed, Lori Askeland, “International Adoption, chapter in "Children and youth in Adoption,
Orphanages and foster care”, Greenwood Publishing Group Inc., (2005) ISBN 0-313-33183-9
42
New Brunswick, Canada, “Adoption – Inter-country Adoption”, available at:
http://www2.gnb.ca/content/gnb/en/services/services_renderer.200846.Adoption_-Intercountry_Adoption.html.
another country and the child is moved to that country. 43Explanatory, Inter-country adoption is
the practice in which children in a position of need, and in the absence of their biological parents,
are sent from their country of origin to an awaiting adopting family usually in the developed
world. This form of adoption can engage children of all ages; infants to teenagers have been sent
abroad to live with a new family through this system. 44
Hypothetically, a State statute defined the term "inter-country adoption" is as the adoption of a
foreign-born child for whom federal law makes a special immigration visa available. It also
includes completion of the adoption in the child's native country or completion of the adoption in
this state”.45 For clarity, adoption is of this type involves a child habitually resident in one State
(the State of Origin) who is moved to another State (Receiving State) as a result of adoption by a
person or persons habitually resident in the Receiving State. However, the actual adoption can
occur in the Country of origin prior to the move or in the Receiving State after the move. 46 In
summation it could be deduced from all the definitions from different authors state, statue etc
that Inter-country adoption is the process by which you: Adopt a child from a country other than
your own through permanent legal means; and. Bring that child to your country of residence to
live with you permanently.

1.4.2 Historical Review of Inter Country Adoption

Inter country adoption flourished after the Second World War. World War II or the Second
World War was a global military conflict lasting from 1939 to 1945, which involved most of the
world's nations. After WWII two factors combined to increase interest in the adoption of infants.
In America the development of formula feeding allowed for the raising of infants without a ready
supply of breast milk, and psychological theory and research about the relative importance of
training and conditioning in child rearing eased the concerns of childless couples about potential
bad seeds. Because of the burgeoning interest in infant adoptions, many States legislatures
investigate for prospective adoptive parents and require for an approval from Court, prior to
finalization of the adoption. Americans began adopting orphan children from Japan and

43
International Adoption, Save Child policy brief, 2010, available at:
http://www.crin.org/docs/International%20Adoption%20FEBB%20edit%2018_01_10.pdf.
44
Scott Christian, Inter-country Adoption, available at:
http://www.lawreview.upeace.org/index.cfm?opcion=0&ejemplar=25&entrada=96.
45
Cal Fam Code § 8527, Supra 36.
46
ARC Adoption, available at:
https://arcadopt.wordpress.com/information-centre/what-is-intercountry-adoption/.
European countries. Additional war time conflicts in Greece, Korea and Vietnam increased inter-
country adoptions. Social upheaval and poverty were the reasons for the increase in international
adoptions. 47 Latin America, China and Eastern European Countries all have a large amount of
inter-country adoptions on a yearly basis. This scenario can be discussed as in 1945s post WWII
and post 1970s with special reference to America.

1.4.2.1 Scenario After 1945

Until about mid-century the balance of infant supply and parent demand was roughly equal in
United States of America. However during the 1950s the demand for healthy white infants began
to outweigh the supply. Agencies began to establish matching criteria in an attempt to provide
the best fit between characteristics of the child or biological parents and the adoptive parents,
matching on items such as appearance, ethnicity, education, and religious affiliation.

1.4.2.2 Scenario After 1970

By the 1970s in America, it was not uncommon for parents to wait 3-5 years after their initial
application to a private adoption agency before they had a healthy infant placed with them. These
trends resulted from a decrease in the numbers of infants surrendered for adoption following the
increased availability of biological control, the legalization of abortion, and the increasingly
common decision of unmarried mothers to keep their infants. In response to this dearth of
healthy, same-race infants, prospective adoptive parents turned increasingly to international and
trans-racial adoptions. Children from Japan and Europe began to be placed with American
families by agencies after WWII, and since the 1950s Korea has been the major source of
international adoptions (except in 1991 with the influx of Romanian children). The one child
policy of the Chinese government has provided a new source of infants to American families,
and recently many adoptees have come from Peru, Colombia, El Salvador, Mexico, the
Philippines, and India.
The Civil Rights Movement of the 1960s was accompanied by an increase in the number of trans
racial adoptions involving black children and white parents. These adoptions peaked in 1971,
and one year later the National Association of Black Social Workers issued a statement opposing
Trans-racial adoption. They argued that white families were unable to foster the growth of

47
Julie Hampton, „International Adoption Facts‟, available at: http://www.livestrong.com/article/87467-
international-adoption.
psychological and cultural identity in black children. Trans-racial adoptions now account for a
small percentage of all adoptions and these most frequently involve Korean born children and
white American families. It began with the adoption by the families in the United States of
children from Europe in particular from Italy Germany and France. U.S. troops came in contact
with orphaned children and with the families who could not feed their children and decided to
surrender them for adoption abroad. With the exception of the migration of Korean children
towards US around 1960 the year in which the ninth session of Hague Conference decided to
prepare a convention on the private international law aspect of adoption, the trend was towards a
concentration of migration of children within Europe. At the end of 60‟s however the picture
started changing radically. Instead of reducing itself to an intra-European problem as was
expected in the early 1960‟s inter country adoption started turning into a world scale trend.
In addition the UN Convention on the Rights of the Child (UNCRC), 1989 acknowledges that
the family is the most desirable environment for the development and well-being of children, that
parents have primary responsibility for the upbringing of the child, and that the child has, as far
as possible, the right to know and be cared for by his or her parents. At the same time, it foresees
the appropriate use of substitute care for cases where the children are deprived of their family
environment or, in their best interests cannot be allowed to remain in that environment and, in
such situations it anticipates recourse to institutional placement as a measure of last resort.48

Also, The Hague Convention on Inter-country Adoption-1993 stipulates rights and safeguards
for all orphans, abandoned and surrendered children. Juvenile Justice (Care and Protection of
Children) Act 2000 (amended in 2006) and its Model Rules (2007) is the basic law for child
related matters including rehabilitation of orphan, abandoned and surrendered children. The
Model Rules have stipulated childcare standards for institutionalized children, their rights and
safeguards. Based on this convention, the Government of India has evolved several programmes
to ensure the betterment of children and their development in a wholesome manner including the
„Integrated Child Protection Scheme‟. The Ministry of Women and Child Development, Govt. of
India has been mandated with the welfare of children in difficult circumstances and those

48
Article 3 of the UNCRC talks about best interests of the child: The best interests of children must be the primary
concern in making decisions that may affect them. All adults should do what is best for children. When adults make
decisions, they should think about how their decisions will affect children. This particularly applies to budget, policy
and law makers, available at: http://www.unicef.org/crc/files/Rights_overview.pdf
considered most vulnerable. 49 The rehabilitation of such children through adoption is one of the
major plans of the Ministry‟s policies for children. It recognizes the family as the central fulcrum
around which both mental and physical development of a child is given full opportunity to
blossom. In order to facilitate the implementation of the norms, principles and procedures
relating to the adoption of children laid down by the Honourable Supreme Court in their
judgments dated the 6th Feb. 1984, 27th Sep. 1985 and 3rd Dec. 1986 in the Writ Petition of L.
K. Pandey v. Union of India (NO. 1171) of 1982, the Government of India issued Guidelines
vide Ministry of Welfare Resolution No. 13-33/85-CH (AC) dated the 4th July 1989. The
Government of India issued the Revised Guidelines for Adoption of Indian Children vide
notification dated the 29th May 1995 after examining subsequent directions laid down by the
Supreme Court of India and the recommendations of the Task Force constituted under the
Chairmanship of Justice P. N. Bhagawati, former Chief Justice of Supreme Court of India.
Subsequently, the Government of India converted the Central Adoption Resource Agency into an
autonomous body with effect from the 18th March, 1999. It was designated as Central Authority
by the Ministry of Social Justice and Empowerment on 17.7.2003 for the implementation of the
Hague Convention on Protection of Children and Cooperation in respect of Inter-country
Adoption (1993). The Ministry of Women and Child Development has now been mandated to
look after the subject matters „Adoption‟ and „Juvenile Justice (Care and Protection of Children)
Act, 2000‟ pursuant to 16th February, 2006 notification of Govt. of India regarding reallocation
of the Business.

In the year 2004 and 2006, Government notified “In-country Guidelines 2004” and “Guidelines
for Adoption from India 2006” respectively. Also, the Central Government amended the Juvenile
Justice (Care and Protection of Children) Act, 2000 in the year 2006 to ensure adequate
protection and rehabilitation measures for children in need of care and protection. And in 2011

49
The Government of India considers adoption as the best non-institutional support for rehabilitation of orphan,
abandoned and surrendered children who become homeless and whose separation from their biological parents
cannot be avoided for various reasons. In pursuance of its constitutional mandate, the Government of India has
evolved a National Policy for the Welfare of Children. The thrust of this policy is summed up in the following
words: "The Nation's children are a supremely important asset. Their nurture and solicitude are our responsibility.
Children's programme shall find a prominent part in our national plans for the development of human resources, so
that our children grow up to become robust citizens, physically fit, mentally alert and morally healthy, endowed with
the skills and motivations needed by society. Equal opportunities for development to all children during the period
of growth should be our aim, for this would serve our larger purpose of reducing inequality and ensuring social
justice."
ministry framed the new guideline for in-country and inter-country adoption in order to ensure
smooth functioning of the adoption process, Central Adoption Resource Authority, from time to
time, and shall replace (i) Guidelines for In-country Adoption, 2004 (ii) Guidelines for Adoption
from India, 2006 .The Adoption Guidelines draw support from: (a) The Juvenile Justice (Care
and Protection of Children) Act, 2000; (b) Judgment of the Hon‟ble Supreme Court in the case of
L.K. Pandey v. Union of India.(c) UN Convention on the Rights of the Child, 1989; (d) The
Hague Convention on Protection of Children and Cooperation in respect of Inter-country
Adoption, 1993. These Guidelines shall govern the adoption procedure of orphan, abandoned
and surrendered children in the country from the date of notification.

1.4.3 Inter Country Adoption- as a Menace

The child were adopted with the name of inter country adoption by the foreign adoptive parents,
with the different names and identity and those children are being misused, trafficked to other
countries or can be used in their own country as they can be used for different purposes like
prostitution because mostly, child who are being adopted are the female child. This is the most
dangerous thing which is attached with this inter country adoption because of the two unsolved
question, which are; a) what will happen if a child is not been adopted by the foreign parents
who were appointed as the guardian by the guardian court of the country of the child, b)The
second question is about the follow up, a study report have to be prepared by foreign adoptive
parents along with the photograph of the child which should have been sent to the guardian court
who appointed that foreigner as guardian for the period of three years, out of which in first two
years it should be quarterly and in the final year it should be half yearly, this has to be done in
paper only, in this era of computer anything could be done and this is only about the paper
formalities. These two important questions had not been resolved by any authority of India,
because all these formalities have to be re looked in this era of hi-tech, because of gross misuse
of everything.

The inter country adoption can be discussed:-

(I) Trafficking of children.

(II) Problems faced by foreign adoptive parents.
(III) Concept of maintenance.
 (IV) Problem of follow up.
1.4.3.1 Inter Country Adoption Vis-à-vis Child Trafficking
Combination of child trafficking with inter country adoption will make an assumption in the
minds of some readers as obvious. Some might have a notion that inter country adoption in itself
is somewhat a form of child trafficking as it includes the transfer of children from poor nation to
rich nation in order to meet the demands of rich nations. The real fact is that persons who
wanting to adopt a child prefers to have daughters rather than sons, could make little difference
to those who adamantly ideologically opposed to inter country adoption. In broader way it is a
matter of the citizens of wealthy nation using their wealth and power to buy the vulnerable
children. With this mind set or perspective those who really care about the pain and suffering of
child in struggling nations should provide shelter and provide help to children within their own
living domicile rather than using their inordinate sums to strip up the children of their national
identity, culture and their language. By contrast, those most supportive of inter country adoption
perceive literally millions of children in need of inter country adoption in developing and
transition economy nations. Children unrestricted, killed, left in miserable orphanages, or they
are living on the streets having horrific testimony to the demanding need for adoption. From this
perspective, ethical or political objections to inter country adoption lack legitimacy, since they
sacrifice the concrete good of children to ideological idols. 50 These distinctive conflicting views
of inter country adoption engender confusion. When one group views inter country adoption as a
form of child trafficking, while another views inter country adoption as a beautiful act of
compassion, the actual operation of our system of inter country adoption becomes obscured.
Continuing the ideological debate over whether inter country adoption is inherently good or evil
is a fool‟s errand, like so many other ideological debates leading further and further afield into
conflicting worldviews. The resolution of such worldview conflicts cannot be found in the realm
of brute facts if there even is such a realm because facts are viewed through the lens of
worldviews, and often seem powerless to conquer strong ideological commitment.

Despite the broad international efforts on issue of child trafficking, it is not easy to find a
complete and authoritative legal definition. Under these circumstances, it is helpful to begin with
the dictionary definitions of the terms traffic or trafficking. The most appropriate meanings of

50
Elizabeth Bartholet, “Family Bonds: Adoption, Infertility, and the new World of Child Protection”, xxi-xxii, 141-
63 (Beacon Press1999) (1993).
these terms include the import and export trade, and the business of buying and selling. 51 The
concept of trafficking in children generally refers, therefore, to the buying and selling of
children. The term would be most applicable where a child was sold and then moved to a far
distance, particularly across borders, but any sale of a child should suffice as a form of
“trafficking”. Thus, a sale of a child would be a form of “child trafficking”. It should also be
helpful to trace the lineage of the legal condemnation of child trafficking. The legal conception
of trafficking appears to be a derivative of long-standing legal condemnations of slavery and
similar practices. Normally the process of buying and selling of human beings implies a kind of
ownership of a human being equivalent to or at least similar to slavery. Both buying and selling
human beings, and enslaving them, reduces human beings to articles of commerce. Basically
slavery has generally been associated with the slave trade and hence efforts to abolish slavery
have also focused on abolishing the slave trade. Since the term trade and trafficking can be used
as synonyms the term trafficking in this context connotes a kind of slave trade. It is therefore
possible to follow the international concern with trafficking in children as a development of
international documents intended to abolish slavery. According to the 1926 Slavery Convention
(“1926 Convention”), slavery is defined as “the status or condition of a person over whom any or
all of the powers attaching to the right of ownership are exercised”. 52 The “slave trade includes
all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to
slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him;
all acts of disposal by sale or exchange of a slave acquired with a view to being sold or
exchanged, and, in general, every act of trade or transport in slaves. 53

1.4.3.2 Problems faced by foreign adoptive parents

Adoption fills the empty life of parents and family, when foreign parents sent an application for
the adoption the social and welfare agency working in the field of adoption prepare a child study
report, that agency send the report to the parents and the foreign parents relied upon that child
study report decide to adopt the child, but what if the report is based upon the fabricating facts,
what if the report does not provide actual picture of the child, what if the report has misleading
factors related to child. These are some issues which need to be looked upon by the parents of

51
Webster‟s New Collegiate Dictionary 938 (7th ed. 1967)
52
Art. 1(1), Slavery Convention, Sept. 25, 1926, T.S. No. 778
53
Ibid.
the child. Another problem which is faced by the parents is the contrary view of the Court in
respect of adopted issue brought before them see the case of L. K. Pandey where it was held that
a biological parent is the best the perfect person that can do and think about the paramount
welfare of the child. Also, another problem which could be faced by the foreign adoptive parents
is monetary help to the child‟s social and welfare agency, the agency could ask from the parents
about the finances and expenses spend upon the child, if the foreign adoptive parent is unaware
about the fixation of monetary expenses. Another problem could be regarding the follow up
report which has to be sent to the country from where the child is adopted. The last problem
which the researcher feels is the presence of foreign adoptive parents in Indian Court during
adoption process. It is a big question which was unsolved by the Supreme Court categorically
laid down the different direction regarding the presence of foreign adoptive parents before the
court which is situated in India. Apex court said that some of the district court can insist upon the
presence of foreign parents before the court. Further dealing with an application for the
nomination of foreign adoptive parents as protector need not therefore contend on the foreign
adoptive parents or one of them putting up to India for the determination of approving the
child.54

1.4.3.3 Concept of maintenance and related problems

Another problem which is related to the inter country adoption is the maintenance and
sustainability seeking for an answer because the social and child welfare agency work for the
betterment of the child, so that they ought to be maintained. This question has two aspects, firstly
the child welfare agency is asking a huge sum of money in the name of the care expenses and
medical expenses of the child however on the other hand the agency would not get anything in
regard to care of a child. 55

54
Supra 38, “We are told that the courts sometime insist on the foreign parents coming to India for the purpose of
where the child is an orphan or handicapped child. But it is not necessary for foreign parents to visit India because
complete child study report and other relevant particular is always forwarded to the sponsoring social and child
welfare agency in the foreign country and it is after careful consideration of the dossier and full and detailed
discussion sponsoring social and child welfare agency that the foreign parents decide to accept the child to be taken
in adoption and proceed further in the matter through the sponsoring social and child welfare agency of course , if
the foreign parent himself is keen to come he may visit India”.
55
On these two aspects supreme court in the case observed that the child and welfare agency which is looking after
the child selected by a prospective adoptive parents, may legitimately receive from such adoptive parents
maintenance expense at the rate not exceeding Rs. 60/- per day , (which is subjected to revision by the revision of
ministry of social welfare, GOI from time to time) from the date of selection of the child by him until the child
leaves for going to its new home as also the medical expense including hospitalization charges, if any actually
1.5 CONCLUDING REMARKS
RATIONALE OF THE STUDY

The child is a guardian of the future of a country; he will serve his life to the nation, so his today
i.e. childhood is the sole responsibility of the nation. Therefore, for the protection of the future of
the child or in other words the future of the nation, the state must have to ensure that this child
will have a good and healthy upbringing, but how, the future of the nation can be secured or what
the basic requirements for this protection are? The basic or ground root requirement for a child or
for the protection of the future of a child is the family, family where a child will open his eyes,
the family where the child will groom, the family where the child will start his life voyage,
therefore, the right to have a family is the first right of the child. The first need of the child is the
family, the family where he can brush up his future. But if a child is not having a platform i.e.
family to express his feelings and emotions, it is primary duty of the state machinery to provide
him this platform. And the mechanism has been earlier discussed is the procedure of adoption.
Therefore, giving a child into adoption can fulfil the basic right of the child i.e. right to have a
family. So here the adoption comes into picture for the fulfilment of the empty life of a child.

Inter country adoption: why or why not?

Inter- country adoption or international adoption means an adoption of a Child of one country by
the parents of another country, it is also termed as cross border adoption. The inter-country
adoption is a solution for those children who don‟t have/ or for them a parent cannot be found in
between the country, then these children can be given in cross border adoption. Even it was one
of the observation of the Apex court in L. K. Pandey‟s case, that it is necessary “when the
parents of a child want to give it away in adoption or the child is abandoned and it is considered
necessary in the interest of the child to give it in adoption, every effort must be made first to find
adoptive parents for it within the country, because such adoption would steer clear of any
problems of assimilation of the child in the family of the adoptive parents which might arise on
account of cultural, racial or linguistic differences in case of adoption of the child by foreign

incurred by such social and child welfare agency for the child. But the claim for payment of such maintenance
charges and other medical expenses shall be submitted to the prospective adoptive parent through the recognized
social and child welfare agency which has processed the application for guardianship and payment in respect of that
claim shall not be received directly by the social and welfare agency making the claim but shall be paid only through
the recognized social and child welfare agency. These and some other issues will be discussed in length in the
chapters to come.
parents. If it is not possible to find suitable adoptive parents for the child within the country, it
may become necessary to give the child in adoption to foreign parents rather than allow the child
to grow up in an orphanage or an institution where it will have no family life and no love and
affection of parents and quite often, in the socioeconomic conditions prevailing in the country, it
might have to lead the life of a destitute, half clad, half-hungry and suffering from malnutrition
and illness”.

Therefore, inter country adoption is one of good solution as for a parentless child, and in lieu of
this India has signed the Hague Convention on Inter-country Adoption-1993 on 9 January, 2003
and ratified the same on 6 June, 2003 with a view to strengthening International Cooperation and
Protection of Indian Children placed in Inter-country adoption.

The primary object of giving the child in adoption should be the welfare of the child. Great care
has to be exercised in permitting the child to be given in adoption to foreign parents, lest the
child may be neglected or abandoned by the adoptive parents in the foreign country or the
adoptive parents may not be able to provide to the child a life or moral or material security or the
child may be subjected to moral or sexual abuse or forced labour or experimentation for medial
or other research and may be placed in a worse situation than that in his own country, as
observed by Dr. Paras Diwan, in his book, „Law of Adoption minority Guardianship and
Custody‟. The trafficking, prostitution, child labour, bonded labour, sex offences, etc. are the
different problems which are attached and attracted with the child who has been put in inter-
country adoption.

OBJECTIVES OF THE STUDY

In this research, the researcher wants to achieve the following objectives because without them
the research is incomplete.

a. To analysis that in inter-country adoption, who can be adopted and who can adopt,
and the procedure thereof.
b. To study and compare the different provisions of inter country adoption with specific
reference to USA, UK and India.
c. To analysis the different problems related with inter-country adoption, and the
magnificent role played by judiciary.
 d. To suggest the solution to the different problems of inter country adoption and to
propose a model actwhich will help to solve the present problem and promote further
research for development/amendment.
HYPOTHESIS

a. The different provisions of inter-country adoption do not differ significantly across USA,
UK and India.
b. The measures of Inter-country adoption do not differ in USA, UK and India.
c. The perceived opinion or solutions suggested by stakeholders do not differ significantly.

WORK PLAN AND METHODOLOGY

Statement of Problem

Adoption now the days become the solution for those parents who don‟t have a child in their life
and after adopting a child they complete their family and even there life. But as we know every
child is an uncut diamond and an unopened bud, a dormant uniqueness, a national asset, with an
inherent sparkle, to bloom, can lose their shine if he is not having a right childhood, as supreme
court held in most of the cases that “right to childhood” is a fundamental right of every child and
that childhood should be protective and healthy environment should have to give to him/her for
the development and progress for the future. The future of a child is depends upon the childhood
of a child and how he will develop further in this world is the lesson given it to him while he was
in a learning stage. But the problems which were faced by a child when he was just start
understanding things give him a wrong direction and it leads to a dark future rather than the
development. The inter country adoption now the days is growing like anything, but it gives a
new darkness to the lives of children. The child which is adopted by a Citizen of another country
take that child with him and after that the real struggle of life of that child start, it‟s not always
but most of the times that child becomes the victim who don‟t have any one to listen and even to
take care him/ her in the new place/ country where he starts new life.

Research Design

The researcher will do the comparative study onlegal framework inter-country adoption
procedure of US, UK and India and apply the doctrinal and non-doctrinal form of research with
the following methodology. The researcher will use questionnaire method for collecting the data
in the non-doctrinal research.

Population

The population which is known as the area of study will be the experts from different fields like
judiciary, NGO‟s, CARA, different national and international adoption agencies, academicians,
Child Welfare Committees (CWCs) etc.

Sample

CARA, different national and international adoption agencies, academicians, Child Welfare
Committees (CWCs), Minorities Communities, Educationists, Legal Experts, NGOs

Sampling Techniques

The sampling techniques for the proposed work would be justified and convenient. Information
will be collected personally using questionnaire having both open ended and close ended
structured questions will be used to collect data

Data Analysis Tools and Techniques:

The data will be collected through the questionnaire method and the collected data will be
systematically arranged and will be analyzed accordingly. Appropriate statistical tools will be
used to analyze the data. Univariate and Bivariate data analysis techniques will be used to
analyze the data.

For every nation the biggest asset is its children. The destiny of a State largely depends in their
future generation which is obviously in shaping the childhood of its children. It is the duty of
every country to secure the future of its child, and here adoption plays an important role to secure
their future. Adoption means and includes a process in which a child less family can have a child
and on the other side a family less child can have a family; it can be two types, firstly intra
country adoption and secondly, inter country adoption. Inter country adoption is one in which
child and parent both belong to different nationality. The foreign adoptive parents can adopt a
child from any country it is also known as outgoing cases. The foreign adoption cases are
governed by Hague convention, 1993. Inter country adoption work as a solution but gives rise to
problems too. The researcher in the present study is going to discuss about the inter country
adoption: its meaning, kinds and development, the second chapter will analyse the international
approach towards inter-country adoption in which the special emphasise is laid down on Indian,
American and British system of adoption, in third chapter the researcher focused on the
analytical discussion on inter-country adoption where the main focus is on the legislative
procedure of Indian, American and English system, the fourth chapter is devoted to the empirical
analysis where questionnaire method of non-doctrinal research was opted by researcher and
outcome of the questionnaire would be complied and represented by researcher, the fifth chapter
of study is devoted to the Model Act which will provide a model legislation for this very
important issue and the last chapter is reserved for conclusion and suggestion where researcher
will attempt to conclude the whole concept and endeavour to provide the solution for the same.