Intricacies of Inter-Country Adoption of Children

The author Urja Mishra is pursuing B.A.LL. B from D.E.S’s Shri Navalmal Firodia Law College under the Pune University. She is in her Second Year of Study. She is very much keen and interested to work on the following topics: Cyber Law, Social-Media, Psycho-Legal issues, and Commercial Laws.

INTRODUCTION

Adoption is not a means to have a picture-perfect family but rather a medium to give love, mercy, and patience. The word ‘Adopt’ has its roots traced down from the Latin word ‘adoptare’, which means to choose; further implying to take by choice into a relationship; specially 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. In other words, it can be defined as the statutory process of terminating a child’s legal rights and duties towards the biological parents and replacing similar rights and duties towards adoptive parents by establishing a parent-child relationship between the individuals who are not directly linked by the birth of the child. It is a boon for couples who aren’t able to have a child biologically and also for the child who does not have a family. It not only proliferates a physically and psychologically balanced family environment but also helps in nourishing the human resource assets of the country.

In the present times, inter-country adoption is an alternative for couples who fail to bear a child. The major reasons for the demand of adoption by the receiving countries like the United States, Canada, developed countries of western Europe are lack of domestic adoption opportunities, the decline in fertility rates coupled with augmented cases of stalling marriages, inadequate success rate, and high cost of infertility treatments. On the other hand, the factors leading to the abandonment of children in the state of origin or the sending countries are namely upsurging poverty and its vicious cycle, the inadequacy of contraception, societal taboos associated with the birth of an illegitimate child, etc. Additionally, the patriarchal mentality in countries like ours with the extreme desire to have a male child contributes significantly to the abandonment of the girl child.

HISTORY OF INTER-COUNTRY ADOPTION

The process of inter-country adoption dates back to the times of World War II wherein it was seen as a benevolent and humane response to the plight of war orphans and the abandoned children of servicemen. It was also witnessed post the Korean War and the Vietnam War owing to the devastation and lakhs of orphaned children. After the rebuilding of the European continent and stabilization of the economy the problem of orphans was solved. However, the newly formulated economy which had just encountered a war, observed a reduction in the country’s male population, culminating in high rates of childlessness. It was during this time that these Western Societies sought help from the Third-World countries with high birth rates to overcome their paucity of healthy infants. Consequently, the concept of Inter-Country Adoption (ICA) evolved. Rebuilt and its economy stabilized, the problem of orphaned children was solved. But a revitalized economy, coupled with a reduction in Europe’s male population, led to an increased rate of childlessness. Western societies then turned to Third-World countries with high birth rates for a solution to the dearth of healthy infants in the West. This led to the evolution of the concept of ICA.

INTRICACIES, PROBLEMS ASSOCIATED WITH INTER-COUNTRY ADOPTION

1) Adoption by Non-Hague Countries

Inter-country adoption is governed and regulated by the ‘1993 Hague Convention on the Protection of Children and Cooperation in Respect of Inter-country Adoption’ (the “HC”), which has now been ratified by about 90 States.

However, there are quite a few countries that have not ratified the convention and thus are not bided by the guidelines. Thus, they follow less stringent procedures and regulations, thereby being more open and having a greater number of children adopted abroad. Taking e.g., of Ethiopia where the numbers have shown a tremendous increase from 100-150 at the start of the year to over 4,000 by the end of 2009. Hence Non-Hague countries are accounted to be more viable and attractive choices for inter-country adoption. If this turns out to result in an ever-increasing pressure on those countries to institute or further develop inter-country adoption to “compensate” for reductions in Hague-compliant counterparts, rather than genuine instigation to ratify the treaty, the true aims of adoption, including inter-country adoption, would once again be severely compromised.

2) Issues of Inter-Country Adoption following Disaster

The 2010 earthquake in Haiti is the perfect example of this issue. Haiti is not a party to the Hague Convention and thus has adoption standards that are not in compliance with international variance. Thus, it led to the following problems:

• Adoption orders regarding hundreds of children had already been granted at the time of the earthquake, but travel documents for these children had not been issued, and hundreds of other children were at some stage in the adoption process or had simply been preliminarily and unofficially identified as adoptable;
• Receiving countries took differing stances concerning the status of the children who they were prepared to evacuate and how this was to be done;
• It was not only legally adopted children whose transfer abroad was expedited but also many whose adoption was hurriedly “signed off” administratively, under pressure, including some who had not even been matched with prospective adopters.

3) Child trafficking under the blanket of transnational adoption

The predominant threat to the child in inter-country adoption is becoming a victim of child trafficking racket. Post the domestic procedure for adoption by the foreign adopting parents, it falls under the domain of international law and international treaties to supervise and ensure the safety and well-being of the child. Furthermore, there has been a rise in the number of fake adoption agencies due to a lack of awareness with respect to the legal procedures of inter-country adoption. This results in the selling of children abroad by using false information, fake documents, and lacunae in the Supreme Court guidelines.

4) Post-adoption negligence

As the adoption involves 2 countries, the post-adoption follow-ups are a bit tedious and difficult task. Despite the CARA guidelines and the presence of Indian diplomatic missions, foreign accredited agencies, and professional social workers, the protection of the child, post-adoption abuse has not yielded successful results.

5) Post-adoption domestic succession

There are quite a few legal issues over the inheritance of property by the adopted child. The procedure is as per the country of residence and the laws are regulated by the domicile. Hence in case of any doubt or mishappening, the successor would not have any claim on the property. Moreover, another intricacy has upsurged as India has not entered into any treaties or agreements to solve such succession matters arising out of inter-country adoption.

6) Inefficient CARA (Central Adoption Resource Authority) Guidelines

The CARA guidelines lack the force of law. The guidelines aren’t enforceable by law and hence it is often ignored by the adoption parties. Additionally, the guidelines are insufficient and ineffective in ensuring the health, safety, and adjustment of the child after he/she has left India. Moreover, with the increasing number of adoption cases, there is a decrease in the number of rules and regulations adhered to. Problems are also found due to the unsystematic manner of operation, lack of a system of regular checks and reports at the adoption agencies.

CONCLUSION

The process of inter-country adoption involves quite a lot of people and authorities. Hence, it is imperative that all work efficiently in their respective domain. The Adoption agencies must function within the systems that abide by international laws as a violation of it would lead to serious complications. At the same time, the prospective adopters are ought to get correct and accurate information on the inter-country adoption needs, to execute their plans efficaciously. Thus, it is the coordination from each actor in the process that would lead to a systematic execution of the whole process at large.

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References:

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• AIR 1984 SC 469
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