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Adoption Case : Laxmi Kant Pandey vs Union of India

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NATIONAL LEGAL RESEARCH DESK

The petitioner, an advocate of the Supreme Court addressed a letter in public interest to the Court, complaining of malpractices indulged in by social organisation and voluntary agencies engaged in the work of offering Indian Children in adoption to foreign parents, the petitioner alleged that not only Indian Children of tender age, in the cases of pseudo-adoption being “exposed to the long horrendous journey to distant foreign countries at great risk to their lives but in cases where they survive and where these children are not placed in the shelter and Relief Houses, they in course of time become beggars or prostitutes for want of proper care from their alleged foster parents.” The petitioner therein sought relief restraining Indian based private agencies “from carrying out further activity of routing children for adoption abroad” and directing the Government of India and other government agencies to carry out their obligations in the matter of adoption of Indian Children by Foreign parents.

The Supreme Court in this case gave various directions the essence of these directions is as follows:

(1)Every effort must be made first to see ifthe child can be rehabilitated by adoptionwithin the country and if that is notpossible, then only adoption by foreignparents, i.e. ’inter-countryadoption’ should be acceptable.

 (2) There is a great demand for adoption ofchildren from India and consequently there isincreasing danger of ill-equipped andsometimes even undesirable organisations orindividuals activating themselves in thefield of inter-county adoption with a view totrafficking in children.

 (3) Following are the requirements whichshould be insisted upon so far as a foreignerwishing to take a child in adoption is concerned:

Every application from a foreigner desiring toadopt a child must be sponsored by a social or child welfare agency licensed by the government of the country inwhich the foreigner is resident. No direct dealing is allowed in such cases due to following:

  1. It will help to reduce the possibility ofprofiteering and trafficking in children, as a foreigner in his anxiety to securea child for adoption, be induced or persuadedto pay any unconscionable or unreasonableamount which might be demanded by the agencyor individual procuring the child. It would be almost impossible for the courtto satisfy itself that the foreigner would besuitable as a parent for the child andwould be able to provide a stableand secure family life to the child and wouldbe able to handle trans-racial, trans-culturaland trans-national problems likelyto arise from such adoption, because, wherethe application for adopting a child has notbeen sponsored by a social or child welfareagency in the country of the foreigner, therewould be no proper and satisfactory homestudy report on which the court can rely.
  2. There theapplication is made directly, there would be no authority or agencyin the country of the foreigner who could bemade responsible for supervising the progressof the child and ensuring that the child isadopted at the earliest in accordance withlaw and grows up in an atmosphere of warmthand affection with moral and materialsecurity assured to it.
  3. As per record, in every foreign country where children from India are taken in adoption, there are socialand child welfare agency licensed orrecognised by the government and therefore there would be no difficulty if adoption is required to be sponsored by asocial or child welfare agency licensed orrecognised by the government of the county inwhich the foreigner resides.
  4. There maybe more than one such social or child welfare agencies, but every such social or child welfare agency must be licensed or recognized by the government of the foreign country anda foreigner could not be appointed as guardian unless satisfactionre the application has beensponsored by such agency.

(4) Safeguards for biological parents (both parents/father/mother:

Before a decision re surrender of the child by the biological parents, they should be informed about various possibilities and implications of adoption, like adoption by a foreigner, no connection with the child, etc.

Also they should not be held in duress for such surrender of the child and must be given three months’ time to reconsider their decision. Though, they should be properly assisted in taking the decision of surrender/relinquishment, “by the institution or center or home for child care or social or child welfare agency to which the child is being surrendered.”

But in order to eliminate any possibilityof mischief and to make sure that the childhas in fact been surrendered by itsbiological parents, the Court gave various guidelines:

 It is necessary that theinstitution or center or home for child careor social or child welfare agency to whichthe child is surrendered by the biologicalparents, should take from the biologicalparents a document of surrender duly signedby the biological parents and attested by atleast two responsible persons and suchdocument of surrender should not only containthe names of the biological parents and theiraddress but also information in regard to thebrother of the child and its background,health and development.

Where the child is an orphan, destituteor abandoned child (and their parents not known), such institution or center or home in whose care the child hascome, must try to trace the biologicalparents of the child.

 If after being traced,the biological parents do not want to take back the child, thenthe same procedure as outlined above shouldas far as possible be followed.

 If forany reason the biological parents cannot betraced, then there can be no question oftaking their consent or consulting them.

Further, the biologicalparents should not be induced or encouragedor even be permitted to take a decision inregard to giving of a child in adoptionbefore the birth of the child or within aperiod of three months from the date ofbirth, so that they can take appropriate decision regarding rearing/ surrender of the child and/or to allow child to overcome any health problem experienced after birth.

A Central Adoption Resource Agency (CARA),to be set up bythe Government of India with regionalbranches at a few centers which are active ininter-country adoptions, was held as desirable, for following purposes:

 Such agency may actas a clearing house of information in regard tochildren available for inter-country adoptionand all applications by foreigners for takingIndian children in adoption can then beforwarded by the foreign social or child welfareagency to such CentralAdoption Resource Agency (CARA) and the latter canin its turn forward them to one or the other of the recognised social or child welfare agencies in the country.

 Every social or child welfare agency, takingchildren under its care,could be requiredto send to the CARA the names and particulars of children,under its care, available for adoptionand the names and particulars of suchchildren could be entered in a register to bemaintained by the CARA for adoption.

Thus these comprehensive guidelines were followed in some way by the Government of India and CARA was formed and which published”Guidelines for adoption”. Under these guidelineseveryState has a VCA (Voluntary Coordinating Agencies) to co-ordinate and oversees inter-stateadoptions.In reality, in some States the VCA is a non-governmental organization (NGO) and in some other States the Department of Women and Child Development is the VCA.

Adoption guidelines Case – Laxmi Kant Pandey vs Union of India

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