Baba’s Explainer – Tedious Process of Adoption

  • IASbaba
  • September 12, 2022
  • 0
Governance, Indian Polity & Constitution
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  • GS-2: Government policies and interventions for development in various sectors and issues arising out of their design and implementation.
  • Mechanisms, laws, institutions and Bodies constituted for the protection and betterment of these vulnerable sections

Context: Concerned over the declining number of children for adoption in the country, a Parliamentary panel has expressed apprehension that this may point to an illegal child adoption market and trafficking.

What were the observations of the Parliamentary Committee?
  • In its 118th Report on Review of Guardianship and Adoption Laws, submitted to Parliament Parliamentary Standing Committee on personnel, public grievances, law and justice has noted “the paradoxical situation where on one hand there are a large number of parents willing to adopt a child, (and) on the other, there are not many children available for adoption”.
  • The committee, noted that according to adoption statistics of Central Adoption Resource Authority (CARA), the number of children adopted within the country declined from 5,693 in 2010 to 3142 in 2020-21.
  • The number of children taken in inter-country adoption decreased from 628 in 2010 to 417 in 2020-21.This, the committee reported, “is a cause of grave concern’’.
  • There is decline in the number of children coming to adoption agencies over the years
  • This decline, by and large, points to trafficking or a thriving illegal child adoption market.
  • The committee is of the view that there is a need to increase surveillance, especially on unregistered child care institutions and adoption agencies/hospitals with a past record of trafficking.
  • The committee takes note of the paradoxical situation where on one hand there are a large number of parents willing to adopt a child, on the other, there are not many children available for adoption, all this while the 2020 World Orphan Report estimates the number of orphans in India at 31 million.
What were the recommendations of the committee?
  • In the given situation, the committee recommended that a true picture of the number of children who are orphaned/abandoned be ascertained through a district-level survey. This data should be updated regularly.
  • There is a need to simplify the procedure further, besides bringing down the time required for placing a child in adoption to less than six months. The committee is of the view that a longer wait period often forces parents willing to adopt a child to resort to illegal adoption.
What are the laws governing adoption in the country?
  • In India, the Central Adoption Resource Authority (CARA) is the statutory body of the Women and Child Development ministry, which functions as the nodal agency for adoption, and is mandated to monitor and regulate in-country and inter-country adoptions.
  • The adoption of orphaned, abandoned and surrendered children are all regulated by CARA through its associated or recognised adoption agencies.

Three laws govern adoption in the country:

  • The Hindu Adoption and Maintenance Act of 1956, which applies to Hindus, Buddhists, Jains and Sikhs.
  • Under this act, the adoption is irrevocable and it gives full status to the child as a natural child born to the family, it also gives the right to inherit the property.
  • The Guardian and Wards Act of 1890, which applies to Muslim, Parsi, Christian and Jews in adoption.
  • Under the GAWA, the relationship which is established after an adoption is only of guardian and ward respectively. Adoption under GAWA does not confer the status of the child on the adopted child; it is different from the HAMA.
  • The Juvenile Justice (Care and Protection of Children) Act of 2015.
    • It replaced the Juvenile Justice (Care and Protection of Children) Act, 2000.
    • It applies to all Indian Citizen.
    • It allows the adoption of two children of the same sex.
    • It confers the status of parents & child and not guardian and ward. It also confers rights available to the child on the adopted child.
    • In particular, it provides a comprehensive process for domestic and inter-country adoption of orphan, abandoned and surrendered children.
    • In addition, the UNCRC (United Nations Convention on the Rights of Child) was ratified by India in 1992 and the Hague Convention on Inter-country Adoption, 1993, was ratified by the Government of India in 2003.

Recent Changes brought in to monitor adoption process

  • From September 1, District Magistrates (DM) have been empowered to give adoption orders instead of courts.
  • All cases pending before courts have to be now transferred. Hundreds of adoptive parents in the country are now concerned that the transfer process will further delay what is already a long and tedious process.
  • There are questions whether an order passed by the executive will pass muster when an adopted child’s entitlements on succession and inheritance are contested before a court.
What do the amended rules say? How did they come about?
  • The Parliament passed the Juvenile Justice (Care and Protection of Children) Amendment Bill, 2021 in July last year in order to amend the Juvenile Justice Act (JJ Act), 2015.
  • The key changes include authorising District Magistrates and Additional District Magistrates to issue adoption orders under Section 61 of the JJ Act by striking out the word “court”.
  • This was done “in order to ensure speedy disposal of cases and enhance accountability,” according to a government statement.
  • The District Magistrates have also been empowered under the Act to inspect child care institutions as well as evaluate the functioning of district child protection units, child welfare committees, juvenile justice boards, specialised juvenile police units, child care institutions etc.
  • The Act and the corresponding rules came into effect from September 1.
  • The amendments to the Juvenile Justice (Care and Protection of Children) Model Rules, 2016 say, “all the cases pertaining to adoption matters pending before the Court shall stand transferred to the District Magistrate from the date of commencement of these rules.”
Why is there concern over the revised rules?
  • The revised rules have parents, activists, lawyers and adoption agencies worried as cases already before courts for the past several months will have to be transferred and the process will have to start afresh.
  • A petition for adoption orders is filed after a parent registers for adoption, who is then assessed through a home study report, referred a child and subsequently allowed to take a child in pre-adoption foster care pending an adoption order.
  • A delay in such an order can often mean that a child can’t get admission into a school because parents don’t yet have a birth certificate, or like in one case, parents unable to claim health insurance if a child is admitted to a hospital.
  • The Central Adoption Resource Authority (CARA) says there are nearly 1,000 adoption cases pending before various courts in the country.
  • Parents and lawyers also state that neither judges, nor DMs are aware about the change in the JJ Act leading to confusion in the system and delays.
  • According to CARA, the Ministry of Women and Child Development is drafting a letter to be sent to State governments clarifying that where adoption orders have already been given, or will be given shortly, the DMs should consider them valid. But there are also larger concerns.

Main Practice Question: Do you think the recent changes made to adoption process is beneficial for the streamlining the process of adoption. Critically comment.

Note: Write answers to this question in the comment section.

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