DR.

RAM MANOHAR LOHIA NATIONAL LAW

UNIVERSITY, LUCKNOW

CONFLICT OF LAW
FINAL DRAFT
On
CONFLICT OF LAWS IN INTER-COUNTRY ADOPTION – AN INDIAN
PERSPECTIVE

Under The Guidance of: Submitted By:

Mr. Prem Kumar Gautam Abhishek Kumar Singh

Assistant Professor (Law) Enrollment No. 130101004, Section B

VIII Sem.

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Contents
INTRODUCTION ............................................................................................................................................. 3

Adoption - What is it? ............................................................................................................................... 3

Origins of Inter – Country Adoptions ........................................................................................................ 4

CONCEPT OF INTER-COUNTRY ADOPTION IN INDIA ..................................................................................... 4

Legal Provisions in India ............................................................................................................................ 5

International Conventions ........................................................................................................................ 6

The Hague Convention and the ratification on inter-country adoption by the Government of India
on 6th June, 2003.................................................................................................................................. 6

The Conventions on the Rights of the Child (CRC) ................................................................................ 6

PRESENT LAWS OF ADOPTION IN INDIA ....................................................................................................... 7

Requisites for a valid adoption ................................................................................................................. 7

Other conditions for a valid adoption ....................................................................................................... 7

Effects of a valid adoption ........................................................................................................................ 8

Challenging a registered adoption ............................................................................................................ 8

THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2000 AND THE AMENDMENT ACT,
2006. ............................................................................................................................................................. 9

THE LAW OF SURROGACY IN INDIA IN REGARD TO THE LEGAL PARENTAGE OF CHILDREN ...................... 10

CONFLICT OF LAWS ARISING DUE TO INTER-COUNTRY ADOPTIONS ......................................................... 12

Legal Technicalities involved ................................................................................................................... 12

Suggestions ................................................................................................................................................. 16

CONCLUSION............................................................................................................................................... 19

BIBLIOGRAPHY ............................................................................................................................................ 21

BOOKS ..................................................................................................................................................... 21

WEBSITES ................................................................................................................................................ 21

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INTRODUCTION

“When you honour the birth family, you honour the child. When you don't honour the birth family,
the child will believe that something is inherently wrong with him/her.”

Adoption - What is it?

It is the statutory process of terminating a child’s legal rights and duties towards the natural parents
and substituting similar rights and duties over adoptive parents. It also means the process through
which the adopted child is permanently separated from his biological parents and becomes the
legitimate child of his adoptive parents with all rights, privileges and responsibilities that are
attached to the relationship.

Thus adoption involves the legal, permanent transfer of a child from the birth parent or parents to
new caregivers. In inter-country adoption, this transfer occurs across an international border. The
child usually moves to a new country, to parents of different race, culture and language from the
birth family, and acquires a new nationality. The child's new identity replaces his or her original
one. Adoption, therefore, it is appropriate to say involves losses as well as gains.

Adoption should only be done when necessary and for the benefit of the child and his wellbeing
and by compromising on neither him nor his parents human rights. It is known to make
psychological demands on the parties beyond those of natural parenthood. It will recommend that
research knowledge and experience should be applied so that the arrangements made provide the
best chance for stable, long-term relationships for children who have been adopted.

The article will also inspect the relevant legal provisions which are to be fulfilled with by the
foreigners and persons of Indian origin who are residing abroad permanently, and who seeks to
adopt children from India along with the issue of surrogacy arrangements. At present, there is no
exclusive general law on adoption of children by non- Hindus and foreigners in India. Adoption is
permitted only by selected statutes among Hindus, and by custom among some other communities.

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Origins of Inter – Country Adoptions

The practice of inter-country adoption came about largely as a humane response to the plight of
war orphans and the abandoned children of servicemen in World War II, the Korean War and the
Vietnam War. It used to and still involves the transfer of more than 30,000 children each year from
over 50 countries.

Only under exceptional circumstances, children move from poor countries to wealthy ones. The
main receiving countries are the United States, Canada and the developed countries of Western
Europe. Factors such as the decline in fertility associated with stalling marriage, the limited success
rate and high cost of infertility treatment and a lack of domestic adoption opportunities have made
inter-country adoption an alternative to childless couples in the receiving countries. Presently,
inter-country adoption has become easier due to readily available information on the Internet.

CONCEPT OF INTER-COUNTRY ADOPTION IN INDIA

The question regarding the validity of inter-country adoption was first debated in the well-known
case of In Re Rasiklal Chhaganlal Meth whereby the Court held that inter-country adoptions
under Sec 9(4) of the Hindu Adoptions and Maintenance Act, 1956 should be legally valid
under the laws of both the countries. The adoptive parents must fulfil the requirement of law of
adoptions in their country and must have the requisite permission to adopt from the appropriate
authority thereby ensuring that the child would not suffer in immigration and obtaining nationality
in the adoptive parents’ country.

The Indian Council of Social Welfare has pointed out that inter-country adoption involves a variety
of principles and procedures over migration, citizenship, the socio-economic situation of adoptive
parents, matching parents with the child, and the acceptance of the child in a different community
and culture. It has recommended that in the interests of the child it is necessary to regulate inter-
country adoption by legislations and by strict collaboration between qualified and authorized
personal and social authorities. The end result of the process will be that adoption would not be
mere legalistic arrangement but the creation of an environment in which the child can grow same

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nationality as well as one the habitual residence of the in health and happiness, integrated in the
society.

PREFERENCE TO PARENTS OF INDIAN ORIGIN

One of the most significant issues in inter-country adoptions is finding prospective adoptive
parents, preferably of Indian origin. The Supreme Court of India, in the Karnataka State
Council for Child Welfare v Society of Sisters of Charity St Gerosa Convent, had held that the
rationale behind finding Indian parents or parents of Indian origin is to ensure the well-being of
the children and that they grow up in Indian surroundings so that they can retain their culture and
heritage. The best interest of the children is the main and prime consideration.

The Gujarat High Court in Jayantilal v Asha 1gave a liberal judgment by upholding the validity of
guardianship orders in favour of two Norwegian couples who were appointed as guardians of
Hindu children. The court observed that -

“If the biological parents have died rendering the child an orphan then the society owes a duty to
the child that at least a semblance of comfort and care which the biological parents could have
provided will be provided to the child, if some people from howsoever distant a corner of this
planet, come forth to do so. In such a case a petty contention like the change of religion or culture
of the child can hardly stand in the way of the court in sanctioning inter-country adoption.
Unfounded and imaginary apprehensions also are of little consequence and once the court is
assured that there is no possibility of the child being abused which assurance can flow from the
independent agencies which are ordained for the purpose then nothing can and need prevent the
court from sanctioning an inter-country adoption.”

Legal Provisions in India

Under the Indian Constitution, Article 24 of the Indian Constitution provides for the right against
exploitation of the children below 14 years whereas Article 45 of the Directive Principles of the

1
AIR 1989 Guj. 152

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State Policy in the Indian Constitution envisages for free and compulsory education of children. At
the International level, India has ratified the convention on the Rights of Child and the Hague
Convention on inter- country adoption of children. At national level, India has prepared
a National Policy for children in 1974 under which Ministry of Social Justice and
Empowerment (now known as Ministry of Women and Child Development) has got the
mandate to enact laws regarding welfare of children.

International Conventions

The Hague Convention and the ratification on inter-country adoption by the

Government of India on 6th June, 2003

Due to the increase in international adoptions, in 1993, the Hague Convention on the Protection
of Children and Co-operation in Respect of Inter-country Adoption was signed to create an
international framework for arranging and formalizing these adoptions and to prevent its abuses.
The Convention relies on cooperation between participating states to safeguard children in the
adoption process. The state of origin takes the responsibility for ensuring that children are made
"adoptable," (i.e. when all the legal requirements are met) while the receiving states take the
responsibility for the suitability of the applicants and in the event of only where both agree that
the adoption should proceed can it be finalized. Adoptions are recognized whether they take place
in the state of origin or the receiving state.

The Conventions on the Rights of the Child (CRC)

Except the United States, almost every sovereign nation, including India, adheres to the CRC. The
CRC’s objective in this regard is to “recognize that inter-country adoption may be considered as
an alternative means of child’s care, if the child cannot be placed in a foster or an adoptive family
or cannot in any suitable manner be cared for in the child’s country of origin.” However unlike the

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Hague Convention, the CRC specifically prefers in-country foster care over inter-country
adoption.2 This view has also been supported by the United Nation’s Children Fund (UNICEF).

PRESENT LAWS OF ADOPTION IN INDIA

The principal law relating to adoption in India under the Hindu system is contained in the Hindu
Adoptions and Maintenance Act, 1956 (HAMA).

Requisites for a valid adoption

Section 6 of the HAMA specifies four conditions for a valid adoption, namely:

i. The person adopting has the capacity, and also the right, to take in adoption;
ii. The person giving the child in adoption has the capacity to do so;
iii. The person adopted is capable of being taken in adoption.
iv. The adoption is made in compliance with the other conditions mentioned in this chapter.

Other conditions for a valid adoption

Section 11 of the HAMA specifies six conditions for a valid adoption, namely:

i. if the adoption is of a son, the adoptive father or mother by whom the adoption is made
must not have a Hindu son, son's son or son's son (whether by legitimate blood relationship
or by adoption) living at the time of adoption;
ii. if the adoption is of a daughter, the adoptive father or mother by whom the adoption is
made must not have a Hindu daughter or son's daughter (whether by legitimate blood
relationship or by adoption) living at the time of adoption;
iii. if the adoption is by a male and the person to be adopted is a female, the adoptive father is
at least twenty-one years older than the person to be adopted;

2
William L. Pierce, “Accreditation of Those Who Arrange Adoptions Under the Hague Convention on Intercountry
Adoption as a Means of Protecting, Through Private International Law, the Rights of Children, “12 J. CONTEMP.
HEALTH L. & POL’Y 535, 538–40 (1996) (discussing conflict between CRC and Hague Convention)

7
 iv. if the adoption is by a female and the person to be adopted is a male, the adoptive mother
is at least twenty-one years older than the person to be adopted;
v. the same child may not be adopted simultaneously by two or more persons;
vi. the child to be adopted must be actually given and taken in adoption by the parents or
guardian concerned or under their authority with intent to transfer the child from the family
of its birth [or in the case of an abandoned child or child whose parentage is not known,
from the place or family where it has been brought up] to the family of its adoption

Effects of a valid adoption

Section 12 deals with the legal effects of an adoption made in accordance with the provisions of
the HAMA 1956 and meets the requirements of cl (ix) of Para 310 of HC 395 of the current
British Immigration Rules governing adoption which signifies the child ‘has lost or broken his ties
with his family of origin’. It was held by the Supreme Court of India in Smt Sitabai v Ramchandra-

‘The true effect and interpretation of Sec 11 and 12 of Act No 78 of 1956 therefore is that when
either of the spouses adopts a child, all the ties of the child in the family of his or her birth become
completely severed and these are all replaced by those created by the adoption in the adoptive
family.’

Challenging a registered adoption

Now, Section 16 of the HAMA says that - Presumption as to registered documents relating to
adoption.

Whenever any document registered under any law for the time being in force is produced before
any court purporting to record an adoption made and is signed by the person giving and the person
taking the child in adoption, the court shall presume that the adoption has been made in compliance
with the provisions of this Act unless and until it is disproved.’

One of the most important rule concerning adoption by Hindus, was held by the Supreme Court of
India in Jai Singh v Shakuntala and by the Punjab and Haryana High Court in Modan Singh v.

8
Sham Kaur that, though a document registering an adoption should be treated as final proof of
adoption, it could still be challenged in a court of law if evidence to the contrary was put forward.

Justices Umesh C Banerjee and Brijesh Kumar while giving its judgement had made a careful
interpretation of Sec-16 by observing that –

“The section thus envisages a statutory presumption that in the event of there being a registered
document pertaining to adoption there would be a presumption that adoption has been made in
accordance with law. Mandate of the statute is rather definite since the legislature has used “shall”
instead of any other word of lesser significance. Incidentally, however, the inclusion of the words
“unless and until it is disproved” appearing at the end of the statutory provision has made the
situation not that rigid but flexible enough to depend upon the evidence available on record in
support of adoption. It is a matter of grave significance by reason of the factum of adoption and
displacement of the person adopted from the natural succession - thus onus of proof is rather heavy.
Statute has allowed some amount of flexibility, lest it turns out to be solely dependent on a
registered adoption deed. The reason for inclusion of the words “unless and until it is disproved”
shall have to be ascertained in its proper perspective and as such the presumption cannot but be
said to be a rebuttable presumption. Statutory intent thus stands out to be rather expressive
depicting therein that the presumption cannot be an irrebuttable presumption by reason of the
inclusion of the words just noticed above.”

THE JUVENILE JUSTICE (CARE AND PROTECTION OF

CHILDREN) ACT, 2000 AND THE AMENDMENT ACT, 2006.

The Juvenile Justice (Care and Protection of Children) Act, 2006 has been enacted for the
benefit of all the children as well as parents irrespective of their religion, caste and gender.

Thus all such adoptable children who falls under the category of children in need of care and
protection shall be processed under this specific legislation by district courts, city civil courts,
family court and other appropriate courts as defined under the State Juvenile Justice Rules and
framed based on the above Act. This Act focuses on child legislation and guarantees rights to an

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adopted child as recognized under international obligations by all Hague member countries. Thus,
it will ensure that in cases of orphan, abandoned and surrendered children which will have to be
processed under the Act so that isolated children have adequate safeguards in their placement.3

THE LAW OF SURROGACY IN INDIA IN REGARD TO THE LEGAL

PARENTAGE OF CHILDREN

As per survey reports, India is rapidly becoming a medical tourism hub. The usual fee is around
$25,000 to $30,000 in India which is around 1/3rd of that in developed countries like the USA.4
India is emerging as a most sought after destination for surrogate mothers as can be seen due to
the increase in childless NRI and foreign couples who are desperate to have a child of their own
rushing to India to rent a womb. In Anand alone, in Gujarat, it has seen as many as 14 commercial
in vitro fertilization surrogacy cases in the last two years which is a disturbing trend.5

The concept of surrogacy has been incorporated in India, only recently. But, at present, there are
no laws on legalizing of parenthood resulting from children born out of surrogacy arrangements.
The only legislation which we have is the Registration of the Births and Deaths Act, 1969 which
does not contain any provision regarding parentage as a result of a surrogacy arrangement. At the
time of enacting this legislation, the concept of surrogacy was not prevalent in the India and hence
it has not been amended or modified with regard to the surrogacy issue.

A surrogate mother is a woman who bears a child on behalf of another woman, either from her
own egg or from the implantation in her womb of a fertilized egg from other woman. It also means
the process of carrying and delivering a child for another person.

The most recent issue regarding adoption of a child from a surrogate mother came up in the news
when a the surrogate twin babies of a German couple of an Indian mother were declared to have

3
Section 41 of the Act, 2000

4
228th Law Commission of India Report available at http://lawcommissionofindia.nic.in/reports/report228.pdf

5
Jan Balaz v. Anand Municipality Special Civil Application No. 3020 of 2009

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virtually become "stateless citizens" with India refusing them citizenship and Germany not ready
to recognise surrogacy as a means of parenthood.

Finding the surrogate babies caught in no man's territory on legal grounds for no fault of theirs, a
Bench comprising Justices G S Singhvi and A K Ganguly vented its anguish, "Should we treat
children born out of surrogacy as commodities”?

The bench held –

“Statelessness cannot be clamped upon the children. There must be some mechanism by which
they get citizenship of some country. Children should be allowed to leave the country after an
assurance of their citizenship has been given.” A woman’s womb is not a piece of real estate to be
rented out. Going through such a commercial pregnancy, a woman undergoes considerable
physical and psychological trauma.

Presently, the Parliament has come up with certain guidelines called as the Artificial Reproductive
Technologies (ART) the careful practice of ART, accreditation of infertility clinics and supervision
of their performance in India except for maintaining the Registry of RT clinics in India.

These Guidelines only provide a foundation for the proposed legislation relating to this field of
law and also asserts that the surrogate mother is under any circumstances cannot be considered to
be the legal mother.

Para 3.5.4 of the ART Guidelines says that a surrogate mother carrying a child biologically
unrelated to her must register as a patient in her own name. While registering she must mention
that she is a surrogate mother and provide all the necessary information about the genetic parents
such as names, addresses, etc. She must not use/register in the name of the person for whom she
is carrying the child, as this would pose legal issues, particularly in the untoward event of maternal
death (in whose names will the hospital certify this death?). The birth certificate shall be in the
name of the genetic parents. The clinic, however, must also provide a certificate to the genetic
parents giving the name and address of the surrogate mother. All the expenses of the surrogate
mother during the period of pregnancy and post-natal care relating to pregnancy should be borne

11
by the couple seeking surrogacy. The surrogate mother would also be entitled to a monetary
compensation from the couple for agreeing to act as a surrogate; the exact value of this
compensation should be decided by discussion between the couple and the proposed surrogate
mother. An oocyte donor can act as a surrogate mother.

However, as per the conditions laid down in the above mentioned Guidelines, in cases where the
surrogate mother also donates her egg, the authorizing parents / infertile couple will have to legally
adopt the child, and it is only after this long drawn legal procedure has been complied with, then
the infertile couple become the legal parents of the child born through such an arrangement. This
fact will also have to be recorded in the birth certificate issued to such a child.

Furthermore, where the genetic material is supplied by third party donors, then in such cases the
birth certificate issued to the child will initially have the names of the genetic parents. Here, it
becomes mandatory for the infertile couple to legally adopt the surrogate child so born, before they
are declared to be the legal parents of such a child.

However, Para 3.5.5 mentions that - A third-party donor and a surrogate mother must relinquish
in writing all parental rights concerning the offspring and vice versa. But we can already see by
the number of real life examples as discussed above that the law relating to surrogacy in India is
in its premature stage. Unfortunately at the moment there is no legislation in existence prescribing
a code of practice governing the moral, ethical and legal aspects of such surrogate arrangements.

CONFLICT OF LAWS ARISING DUE TO INTER-COUNTRY ADOPTIONS

Legal Technicalities involved

Article 7 of the CRC states, “The child shall be registered immediately after birth and shall have
the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to
know and be cared for by his or her parents. It also recommends that like many other human rights
norms, the requirement of immediate birth registration is consistently violated, as over 30% of
births worldwide are not registered, including nearly two-thirds of the births in South Asia. The
failure to register births in sending countries makes it more difficult to document the age and family
12
of origin of children, which unfortunately facilitates abusive adoption practices. Second, the
child’s “right to know and be cared for by his or her parents” are not done accordingly. UNICEF
thus implies that removal of a child from the birth family to an adoptive family would violate the
child’s rights unless, after the offer or provision of relevant assistance, “a child’s family is
unavailable, unable or unwilling to care for him or her.
Role of the Indian Supreme Court
The key documents summarizing the ideals and laws of India regarding intercountry adoption are
found in the Supreme Court of India’s 1984 Laxmi Kant Pandey v. Union of India opinion and
subsequent Supreme Court opinions elaborating and applying the principles of the original Pandey
decision. The case arose through a generalized claim of abusive intercountry adoption practices
and was treated as public interest litigation. The Supreme Court of India was thus invited, at the
outset, to prohibit or sharply restrict intercountry adoption. The statutory position of adoption was
rather tenuous at that time. The Hindu Adoptions and Maintenance Act of 1956 provided limited
authority for Hindu persons to adopt Hindu children, but adoption of a child was prohibited if the
adoptive parent already had a child, birth or adoptive, of the same gender. A proposed uniform law
of adoption, applicable to all religious communities, had been introduced in 1972, but dropped due
to opposition from the Muslim communities. A similar law exempting Muslims from application
had been introduced in 1980 but also failed to gain enactment. Therefore, persons or situations not
falling within the limited statutory definitions of the Hindu Adoption and Maintenance Act,
including non-Hindus seeking to adopt within India, and most foreigners seeking to adopt, were
left to the provisions of the Guardians and Wards Act of 1890. This Act did not provide for
adoption, but rather for guardianship lasting until the age of majority.
The Supreme Court of India could have relied on the absence of explicit statutory provisions for
non-Hindu adoptions as the basis for a broad prohibition of most intercountry adoptions. Instead,
the Court embraced intercountry adoption in terms quite consistent with those later expressed in
the Hague Convention. The Court’s primary rationale and focus appeared to be child welfare.
Thus, the Court stated that, “every child has a right to love and be loved and to grow up in an
atmosphere of love and affection and of moral and material security and this is possible only if the
child is brought up in a family.”
The Court created a series of preferred outcomes for children, roughly as follows:

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(1) Child with biological family;
(2) Child adopted within India;
(3) Child adopted out of country by Indians residing abroad;
(4) Child adopted out of country by “adoptive couples where at least one parent is of Indian origin”
and
(5) Child adopted out of country by person(s) who are not of Indian origin.
Although this priority list may appear nationalist in orientation, the Court grounded these priorities
in concerns with the greater difficulties that adoptive children face in assimilating to their adoptive
families in situations involving “cultural, racial or linguistic differences.” Interestingly, the CRC,
although created some years later, specifically states that in adoption, “due regard shall be paid to
the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural,
and linguistic background. Therefore, the Court’s preference that Indian children be adopted by
Indian parents, whether residing in India or elsewhere, later found support in the world’s most
significant treaty on children’s rights. At the same time, the Court was willing to countenance
foreign adoption, even by non-Indians, in order to save children from certain fates. The Court
stated that:
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.
The Court pointed out that such conditions would “prevent the realization of [a child’s] full human
potential making [the child] more likely to grow up uneducated, unskilled and unproductive,” with
a life “blighted by malnutrition, lack of health care and disease and illness caused by starvation,
impure water and poor sanitation.”
The Court stated that allowing foreign adoption was consistent with India’s National Policy on
Children because it would permit otherwise “destitute, neglected or abandoned” children to realize
their full potential, and to live a “healthy, decent life, without privation and suffering arising from
poverty, ignorance, malnutrition and lack of sanitation . The Court was unflinching in its

14
assessment of the conditions under which many in India lived and was willing to countenance the
loss of some of India’s children, if necessary to save them from such a fate.
The far-ranging opinion of the Court showed broad familiarity with a variety of adoption issues.
For example, regarding older-child adoption, the Court noted that it is easier for younger children
to become “assimilated and integrated” into their new environment and that “a problem may also
arise whether foreign adoptive parents would be able to win the love and affection of” older
children. Similarly, the Court’s procedures specifically provided for the event of disruption; that
is, the failure of an adoption after placement into the adoptive family but prior to finalization of
the adoption.
Intercountry Adoption Institutions and Procedures Delineated by the Indian Supreme Court Much
of the Court’s opinion involved the creation or recognition of an elaborate set of procedures and
institutions for intercountry adoption, which the Court constructed despite the lack of a statutory
framework beyond the Guardians and Wards Act of 1890. The Court’s procedures and institutions
deliberately built upon those which had been implemented in certain local areas within India,
particularly Bombay, Delhi, and Gujarat.

15
Suggestions
For quite a long time, there has been an increasing demand for a universal law on adoption which
would enable any person who wishes to adopt a child can do so irrespective of his religion, race
or caste. As all the major embassies in India follow rigorous guidelines in dealing with adoption
applications in the inter-country adoption mechanism, the rate of refusal is extremely high without
any room for compassion. With the amount of formalities as demanded by the authorities, the
childless non-resident Indian and foreign couples face a lot of hassles and hardships.

Even after so many disputes, the revised guidelines of the Juvenile Justice Act have failed to make
a clear standing on this issue regarding inter-country adoptions. In the case of John Clements v All
Concerned whereby the Andhra Pradesh High Court observed that -

“Para 2.14 of the guidelines envisages that no application by foreigner for taking a child in
adoption should be entertained directly by any social child welfare agency in India working in the
areas of inter-country adoption or by any institution or centre or Home to which children are
committed by the Juvenile Court. However, the very next paragraph says “the original application
along with original documents as prescribed by the Supreme Court of India would be forwarded
by the foreign enlisted agency to a recognised placement agency in India”.

Due to this inconsistency in the guidelines, the foreign enlisted agencies overlooked the judgment
of the Supreme Court and started directly approaching the placement agencies in India. They then
take the Indian children in adoption with their involvement and active support of CARA officials,
who are simply putting their seal of approval without inspecting the records of such adoption which
is taking place. As a result, trafficking in female children is going on unrestricted in violation of
the guidelines given by the Supreme Court.

Consequently, the present loophole of law came to light and thereafter the Government of
Andhra Pradesh issued the Andhra Pradesh Orphanages and other Charitable Homes
(Supervision and Control) Rules. It states that “relinquishment” of child by “biological parents”
on family grounds of poverty, number of children, unwanted girl child will not be permitted. Such

16
children should not be admitted in Homes or “Orphanages” and, it admitted, the license and
recognition of Home or Orphanage shall be cancelled or withdrawn.’

In between the issue of inter-country adoption which has yet to be dealt properly by the Indian
Government, the legal issues of surrogacy have now cropped up as -

1. There is no legislation in India pertaining to surrogacy as yet.

2. Secondly, no practical concrete useful benefits are forthcoming at all to prospective NRI
adoptive parents and persons of foreign origin arising out of India signing The Hague
Convention Adoptions.
3. Thirdly, the 2007, proposed revised guidelines should make an attempt to provide a clear
cut direction to all major Embassies, High Commissions and Consulates in India, so that
all adoptions taking place in India under the provision of The Juvenile Justice (Care and
Protection of Children) Amendment Act, 2006 by non-resident Indians, persons of Indian
origin and foreigners as well, should be duly recognized and their validity accepted so as
to facilitate movement of the adopted children in the country of the habitual residence of
the adopting parents

But most importantly all adoptions are to be processed by maintaining proper precautions and by
compliance of due process of law, both in India and abroad. The core issues lies in the recognition
of adoption orders handed down by the designated courts in India through the amended provisions
of the Juvenile Justice Act of 2006.

The agencies in receiving countries need to be conscious of the general living conditions for
children in sending countries as well as their culture, laws and practice. Similarly, agencies in
sending countries need to be aware of the conditions in the countries where children are being sent.
Where strong links are made between agencies and countries, adopters and children are more likely
to be able to share their happy experiences with others. This can alleviate the isolation that people
adopted outside their country of origin can feel.

It is a common situation in India that the judges dealing with adoption cases, especially in small
towns and cities in India, are not predominantly acquainted with the interpretation of the inter-

17
country adoption Guidelines as discussed in this article. Hence, in this regard, a uniform but
stringent procedure must be developed which can be easily followed and observed in regard to
human spirit. For the entire adoption process, all procedural hurdles along with legal and official
procedures are required to be met for a smooth adoption process without any abuse. However,
separate and sophisticated adoption and immigration procedures often leave foreign adopting
parents in confusion over differing interpretations as to the prevailing laws of the home country
and the adoption country.

Thus the adoption process in India is tedious and is involved by all sorts of unnecessary legal and
social restrictions. It is an irony that in a country with so many homeless children, there’s a long
waiting list of couples waiting to adopt them. “There is an urgent need to change the laws, make
the process less cumbersome and allow India to become a popular adoption destination.

Therefore, it is required that the entire adoption process and procedures are revamped so that they
conform to a uniform pattern (like an Uniform Civil code as provided under Article 44 of the
Constitution of India) which will make the process more suitable, less burdensome and easier to
follow. The paramount importance is the keeping the best interest of the child along with both the
letter and spirit of law to be adhered to. There are considerable changes needed in this field of
inter-country adoption of India along with enactment of legislations dealing with children born out
of surrogacy arrangements and their legal parenthood.

A system needs to be created whereby these multiple adoption agencies must be declared free from
corruption through bribery and personal connections. Once it becomes apparent that approvals are
based on such personal connections or monetary inducements, incentives to follow the rules may
disappear. The presence of money can subvert the fundamental principles of inter-country
adoption, which favour the maintenance of the child within the birth family, where feasible, and
favour in-country adoptive placement over inter-country adoption. There must be some legislation
in place to prevent couples from going for adoption even after having one or two biological
children of their own, like we have the celebrity Angelina Jolie who is in the process of adopting
another child even after having three biological children of her own and three adopted ones.

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Since foreign money is available, Indian agencies may be transformed from social welfare
organizations assisting families and orphans to foreign adoption profiteers scouting the countryside
for children. Instead of offering counselling, services, or help designed to allow a child to remain
within her birth family, agencies will systematically offer money to birth parents to induce
relinquishment. Agencies will thus go into the business of deliberately producing “paper” orphans,
who when placed in foreign adoption become an immensely profitable product. Similarly,
obstacles to in-country adoption will be systematically constructed when proportionately huge
amounts of money can be made for foreign placements. Agencies will prefer to place a child out-
of country and receive literally thousands of dollars, a year’s salary for a middle class Indian, rather
than place the child in-country and receive less than $100. This needs to be avoided.

It has been seen that the children are a supreme and chief asset to the nation. The nation’s
responsibilities are to nurture them as they are the future citizens of the country. All the Children’s
programme should be given a conspicuous part in the national plans for the development of human
resources so that children grow up to become robust citizens; physically fit, mentally alert and
morally healthy endowed with the skills and motivation needed by the society. The aim is to
provide equal opportunities for development to all children during the period of growth, as this
will serve larger purposes of reducing inequality and increasing social justice.

Those who care about children should act now to preserve and promote international adoption. It
represents the best option for existing unparented children. It serves the interests of birth parents
who care about the children they cannot raise. It brings new resources into poor sending countries
to help improve conditions for the children left behind. It represents the way forward to a world in
which we recognize children as citizens of a global community with basic human rights
entitlements, a world in which we recognize adults in that community as having responsibilities to
all its members.

CONCLUSION

To conclude this research paper, I would like to bring into notice the conclusions drawn up by
the national policy of India for welfare of children in India. The idea is to protect the abandoned

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and destitute children and help them to find a family as far as possible and to safeguard their
interest as visualized in the UN Convention on child rights and Hague Convention on Inter country
adoption ratified by India government. The ‘Best Interest of the Child’ is the guiding principle
behind all adoption laws in India and social awareness programmes has helped to change the
attitude of society and people towards adoption in India.

After going through the plethora of thoughts as discussed in this article, we can divide our
conclusion into two schools of thoughts i.e. the traditional and the contemporary. Under the
traditional school, we have the Uniform Civil Code as provided under Art – 44 of the Indian
Constitution along with various other Constitutional and Civil provisions. On the other hand under
the Contemporary school, we have the modern Public International Law. The Government of India
should come up with a model to facilitate inter-country adoptions in a smoother and hassle
freeway. The laws should be made uniform for all religious communities and the government
agencies which are involved in adoption procedures should work hand in hand for the best interest
of the child and also for the adoptive parents. Selfish interests should be removed. The international
community and the laws should also try to pitch in with their efforts in helping the parents going
for inter-country adoption in a less complicated way. Above all, the countries of the world should
coordinate with each other for the betterment of the child who will be the future citizens of their
respective countries.

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BIBLIOGRAPHY

BOOKS
 J.H.C. Morris, The Conflict of Law 187 (Sweet & Maxwell Ltd., London, 2005).
 Atul M. Setalvad, Conflict of Laws 13 (LexisNexis Butterworths Wadhwa, Nagpur,
2009)

WEBSITES
 http://www.lawteacher.net/free-law-essays/family-law/an-analysis-of-inter-country-law-
essays.php

 http://www.lawteacher.net/free-law-essays/family-law/inter-country-adoptions-to-be-or-not-
to-be-law-essay.php

 http://www.academia.edu/5301254/THEME-
SURROGACY_AND_INTERCOUNTRY_ADOPTION_IN_INDIA_TITLE-
MAKING_FAMILIES_OR_SELLING_BABIES_Author-Rahul_Sinha

 http://www.legalservicesindia.com/articles/adopt.htm

 http://www.legalserviceindia.com/articles/pard.htm

 http://www.firstpost.com/india/time-to-suspend-inter-country-adoptions-311309.html

 http://www.slideshare.net/SatyaRanjanSwain/inter-country-adoption

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