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  • Writer's pictureSharad Nagpal

Understanding the Legal Framework of Adoption in India: In-Country vs. Inter-Country

Adoption


 

Adoption is a beautiful and life-changing process that brings families together in ways they never thought possible. However, navigating the legal framework of adoption can be complex and overwhelming, especially when considering the differences between in-country and inter-country adoptions in India. In this blog post, we will delve into the intricacies of adoption laws in India, exploring the unique challenges and opportunities that come with each option. Whether you are considering expanding your family through adoption or simply curious about how it all works, this guide will provide you with valuable insights into understanding the legal framework of adoption in India.


Adoption in India

Introduction to Adoption in India:

Adoption is a legal process through which an individual or couple becomes the legal and permanent parent(s) of a child who is not biologically related to them. In India, adoption has been practiced for centuries, with references to it found in ancient texts like the Vedas and Manusmriti. However, with changing societal norms and advancements in technology, the concept of adoption has evolved significantly over time.

In India, there are two types of adoption processes recognized by law - In-country adoption and Inter-country adoption. While both aim to provide a loving family to children in need, they differ in terms of their procedures and eligibility criteria.

In-Country Adoption:

 In-country adoption refers to the process through which an Indian child is adopted by Indian citizens within the country. This type of adoption is regulated by The Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act), which replaced the earlier Juvenile Justice Act of 2000. Under this act, children below the age of 18 years who have been abandoned or surrendered by their biological parents can be legally adopted by Indian nationals through authorized agencies such as Specialized Adoption Agencies (SAAs) or State Adoption Resource Agency (SARA). These agencies are responsible for finding suitable adoptive families for children and also facilitating post-adoption services.

The eligibility criteria for adopting a child through in-country adoption include being physically fit, mentally stable, financially capable, having a minimum age difference between adoptive parent(s) and child (30 years for single parents and 25 years for couples), among others. Additionally, only married couples or single individuals can apply for in-country adoptions; live-in relationships are not recognized under Indian law.

Inter-Country Adoption:

Inter-country adoption refers to the process through which an Indian child is adopted by foreign nationals from countries that have signed bilateral agreements with India regarding inter-country adoptions. This process is governed by the JJ Act as well as the Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption (Hague Adoption Convention). The Central Adoption Resource Authority (CARA) is the nodal body responsible for regulating inter-country adoptions in India.

Foreign nationals looking to adopt a child from India must fulfill certain eligibility criteria, including being citizens of countries recognized by CARA, having a stable marital relationship, and going through a stringent home study process conducted by their respective country's adoption authority. Moreover, there are strict guidelines regarding age, income, and other factors that determine an individual or couple's suitability to adopt an Indian child.


In-Country Adoption

In-Country Adoption: Definition and Process

In-country adoption, also known as domestic adoption, refers to the process of legally adopting a child within the same country where the adoptive parents reside. This means that both the child and the adoptive parents are citizens or legal residents of the same country.

The process of in-country adoption is governed by laws and regulations set by each state or union territory in India. The primary legislation that governs adoptions in India is the Juvenile Justice (Care and Protection of Children) Act, 2015, which aims to provide a safe and secure environment for children who are orphaned, abandoned or surrendered.

The first step towards an in-country adoption is for prospective adoptive parents to register with a recognized Specialized Adoption Agency (SAA). These agencies are licensed by the Central Adoption Resource Authority (CARA), which is responsible for regulating all adoptions in India. Once registered, prospective adoptive parents can start their search for a child through various means such as newspaper advertisements, online portals, or attending adoption fairs organized by CARA.

After selecting a child from one of these channels, prospective adoptive parents must submit an application to the SAA along with required documents such as proof of marriage, income certificate, medical reports and police verification. The SAA then conducts a home study report to assess if the couple is fit to be adoptive parents. This includes factors like their financial stability, living conditions and reasons for wanting to adopt.

Once approved by the SAA, they will forward the case to CARA for further processing. CARA then matches them with a suitable child based on factors like age preference, health status and special needs if any. After receiving this referral from CARA, prospective adoptive parents have 48 hours to accept or reject it.

If accepted, they can travel to meet their child at least once before completing necessary formalities such as obtaining a court order of adoption and obtaining an amended birth certificate for the child. After completing these formalities, the adoptive parents can take their child home and start the process of legally finalizing the adoption.

In-country adoption is a lengthy and complex process, but it provides many benefits such as reducing cultural barriers between the adopted child and the adoptive family, promoting national identity for the child, and giving them access to resources and services within their own country. It also helps in preserving the culture and heritage of children who may have been orphaned or abandoned. Understanding this process is crucial for prospective adoptive parents to make an informed decision about whether in-country adoption is right for them.

Eligibility Criteria for Adoptive Parents

Adoption is a beautiful way to build a family and provide a loving home for a child in need. However, the process of adoption involves certain legal procedures and requirements that must be fulfilled by prospective adoptive parents. In India, the eligibility criteria for adoptive parents are determined by the Central Adoption Resource Authority (CARA), which is the nodal body responsible for regulating adoptions in the country.

The following are some key factors that determine the eligibility criteria for adoptive parents:

1. Age: The minimum age requirement for adopting a child in India is 25 years. However, there can be exceptions made if one of the prospective adoptive parents is above 25 years while their spouse is younger than 25 years. There is no upper age limit, but it should not exceed more than 55 years at the time of registration.

2. Marital status: In India, both married couples and single individuals can apply for adoption, provided they meet all other eligibility requirements. For married couples, both partners should give their consent to adopt jointly.

3. Financial stability: Prospective adoptive parents must have a stable income source to ensure that they can provide for the needs of the adopted child.

4. Health: Adoptive parents must be physically and mentally fit to take care of a child and should not have any serious health issues that may impact their ability to parent effectively.

5. Family structure: CARA prefers that children are placed in families with a mother and father figure; however, single-parent households or same-sex couples can also apply for adoption.

6. Criminal record check: Prospective adoptive parents must submit police clearance certificates from all places they have lived in during the last five years to ensure they do not have any criminal records.

7. Number of children already in custody: In most cases, Indian laws allow only one adoption per couple; however, under special circumstances like adopting siblings or children with special needs, exceptions can be made.

Apart from these general eligibility criteria, there may be specific requirements based on the type of adoption. For instance, if the adoptive parents are applying for a child with special needs or older children, they may need to provide additional documents and undergo specialized training.

It is crucial for prospective adoptive parents to carefully understand and fulfill all the eligibility criteria set by CARA before embarking on the adoption process. This ensures that the child is placed in a safe and loving environment and that their best interests are protected. Adoption is a lifelong commitment, and it is essential to have the right mindset and capabilities to raise an adopted child with love, care, and understanding.

Steps involved in the process

The process of adoption in India can be a lengthy and complex one, involving various steps and procedures to ensure the best interest of the child. Whether it is an in-country adoption or an inter-country adoption, several common steps need to be followed.

  1. Registration: The first step towards adoption is registering with the Central Adoption Resource Authority (CARA). This can be done either online or through a registered adoption agency. The registration process includes submitting necessary documents like identity proof, marriage certificate (if applicable), and income proof.

  2. Home Study: Once registered, the adoptive parents are required to undergo a home study conducted by a social worker from a recognized agency. This involves assessing their physical, emotional and financial stability as well as their suitability for parenthood.

  3. Matching: After completing the home study, CARA will match prospective adoptive parents with a child whose profile matches their eligibility criteria. A maximum of six profiles may be proposed by CARA at once.

  4. Acceptance and Pre-Adoption Foster Care: If the prospective adoptive parents accept the child's profile, they will have to sign an acceptance letter within 10 days of receiving it. Subsequently, they will have to go through pre-adoption foster care for at least two weeks before bringing the child into their home permanently.

  5. Court Proceedings: After successful completion of foster care, court proceedings will begin where both biological parents' consent for relinquishment is presented before the judge along with other necessary documents related to the case.

  6. Issuance of Adoption Order: Upon satisfying all legal requirements and formalities, the court will issue an adoption order stating that the adopted child is now legally considered as part of the family.

  7. Post-Adoption Follow-Up Reports: After adopting a child in India, adoptive parents are required to submit periodic follow-up reports for up to two years after the finalization of adoption. This is to ensure that the child is being well taken care of and his/her best interests are being met.

The process for inter-country adoption follows a similar pattern with additional steps, including obtaining a no-objection certificate from CARA, getting approval from the foreign country's central authority, and obtaining necessary documents like passport and visa for the child.

Adoption in India involves several important steps to be followed diligently by both the adoptive parents and the authorities involved. It is essential to understand these steps thoroughly before embarking on this life-changing journey of parenthood through adoption.

Legal framework under Indian Family Law  

Indian family law provides the legal framework for adoption in India. The laws governing adoption are primarily found in the Hindu Adoption and Maintenance Act, 1956 (HAMA) and the Juvenile Justice (Care and Protection of Children) Act, 2015.

Under HAMA, a person belonging to the Hindu religion can adopt a child by following certain procedures. Section 7 of HAMA lays down that any male Hindu who is of sound mind, not a minor, and has not been declared unfit to be an adoptive parent can adopt a child. Similarly, Section 8 allows any female Hindu who is unmarried or whose marriage has been dissolved or whose husband is dead to adopt a child.

The act also specifies that only children who are Hindus, Buddhists, Jains, or Sikhs can be adopted under this law. Additionally, certain conditions must be fulfilled before an adoption can take place. These include obtaining consent from the biological parents or guardians of the child, ensuring that there is no living son/daughter of the same gender as the adopted child in the family already, and making sure that at least one year has passed since the birth of the child.

Apart from HAMA, inter-country adoptions in India are also regulated by the Central Adoption Resource Authority (CARA), which was set up under Section 68F of JJ Act in 1990. CARA serves as a central authority for regulating all aspects related to inter-country adoptions in India.

Inter-country adoptions fall under Chapter VIII of JJ Act which deals with international aspects of care and protection for abandoned children. According to Section 36(1) of JJ Act, only those agencies registered with CARA or recognized by their respective state governments can process inter-country adoptions.

Furthermore, according to guidelines issued by CARA in October 2020, foreign prospective adoptive parents (PAPs) must be married for at least two years and not have more than four children. Additionally, they must also fulfill the eligibility criteria set by their own country of origin.

It is important to note that both in-country and inter-country adoptions are governed by strict procedures and regulations to ensure the best interests of the child. Any violation or non-compliance with these laws can lead to legal repercussions for all parties involved.

The legal framework under Indian family law provides a comprehensive structure for adoption in India. HAMA and JJ Act, along with the guidelines issued by CARA serve as essential tools for regulating both in-country and inter-country adoptions and ensuring the safety and well-being of children.


Inter-Country Adoption

Inter-Country Adoption: Definition and Process

Inter-country adoption is a process by which individuals or couples adopt a child from another country and bring them into their own family. It is a complex legal process that allows children who are unable to be cared for in their birth country, to find permanent loving homes in another country. In this section, we will discuss the definition of inter-country adoption and the process involved in it.

Definition

Inter-country adoption can also be referred to as international adoption or transnational adoption. It is the legal process of adopting a child from one country and bringing them into another country to become a part of a new family. This type of adoption often occurs when there are no suitable families available in the child's home country, or when the child has been abandoned, orphaned, or relinquished by their birth parents.

Process

The process of inter-country adoption involves several steps and can vary depending on the countries involved. However, certain general procedures need to be followed.

  1. Eligibility: The first step towards inter-country adoption is determining if you are eligible to adopt under the laws of both your home country and the child's birth country. Each country has its own set of eligibility criteria that must be met before proceeding with an inter-country adoption.

  2. Home Study: A home study is conducted by a licensed social worker or agency to assess whether you would make suitable parents for an adopted child. This includes background checks, interviews, and visits to your home.

  3. Adoption Application: Once you have completed your home study and been deemed eligible, you can begin the formal application process with an authorized agency in your home country.

  4. Matching Process: An authorized agency will work with counterparts in the child's birth country to identify potential matches based on various factors such as age, gender preference and medical needs.

  5. Placement: If a match is found, you will then receive information about the child including medical records and photos. After reviewing the information, you can accept or reject the placement.

  6. Adoption Procedures: Once you have accepted a child's placement, adoption procedures will be initiated in both countries. This includes obtaining necessary legal documents and obtaining an immigrant visa for the child to enter your home country.

  7. Post-Adoption Follow-Up: Most countries require post-adoption follow-up visits and reports to ensure that the child is adjusting well to their new family.

Inter-country adoption is a lengthy and detailed process that involves cooperation between multiple agencies and authorities from different countries. It requires a lot of patience, determination and commitment but can ultimately result in giving a child a loving and permanent home.

Eligibility Criteria for Adoptive Parents

Adopting a child is a big decision that requires careful consideration and planning. In India, the legal framework for adoption is governed by the Juvenile Justice Act (JJ Act) 2015, which lays out the eligibility criteria for adoptive parents. These criteria are put in place to ensure that children are placed in safe and loving homes.

The first eligibility criterion for adoptive parents is age. According to the JJ Act, the minimum age for adopting a child is 25 years and there should be at least 21 years of age difference between the adoptive parent(s) and the adopted child. This ensures that the adoptive parent(s) have reached an appropriate level of maturity and stability to provide a nurturing environment for the child.

Marital status is also an important factor in determining eligibility. Married couples are eligible to adopt as well as single individuals, subject to certain conditions. Single men can only adopt male children while single women can adopt both male and female children. Additionally, same-sex couples are not allowed to adopt under Indian law.

Financial stability is another crucial aspect of being eligible for adoption. The prospective adoptive parent(s) must have a stable income source and be able to provide for all basic needs of the child including food, shelter, education, healthcare, etc.

The JJ Act also mandates that at least one of the prospective parents should be physically fit and mentally sound with no serious medical conditions or disabilities that could affect their ability to take care of a child.

Another important criterion is citizenship. Under Indian law, only Indian citizens residing in India can legally adopt a child from within India through In-Country Adoption (ICA). However, Non-Resident Indians (NRIs), Persons of Indian Origin (PIOs), or foreign nationals who have been living in India continuously for more than two years may also apply through ICA.

In contrast, Inter-Country Adoption (ICA) follows different eligibility criteria. Prospective adoptive parents must be citizens of countries with which India has a bilateral agreement on inter-country adoption. They must also fulfill the eligibility criteria set by their home country and obtain necessary clearances and permissions from both countries.

Understanding the eligibility criteria for adoptive parents is crucial in making informed decisions about adoption in India. These criteria are put in place to ensure that children are placed in safe and nurturing homes where they can thrive and grow into happy individuals.

Steps involved in the process (including home study, matching, etc.)

  1. Application: Prospective adoptive parents residing in another country submit an application to the authorized adoption agency in their country, along with the required documents and clearances.

  2. Home Study and Approval: A social worker conducts a home study to assess the prospective adoptive parents' suitability and prepare a home study report. Once approved by the adoption agency and CARA, the application is forwarded to the Central Authority of the receiving country.

  3. Child Referral: The Central Authority of the receiving country reviews the prospective adoptive parents' application and matches them with a suitable child available for inter-country adoption in India.

  4. No Objection Certificate (NOC): CARA issues a No Objection Certificate (NOC) for inter-country adoption, verifying that the adoption process complies with Indian laws and regulations.

  5. Immigration and Visa: Prospective adoptive parents obtain the necessary immigration and visa approvals from their country's authorities to bring the adopted child to their home country.

  6. Legal Formalities: The adoption is finalized in the receiving country, following the laws and procedures applicable in that jurisdiction, with the issuance of a final adoption order or decree.

Legal framework under Indian Family

Inter-country adoption in India is governed by a comprehensive legal framework aimed at safeguarding the welfare of the child and ensuring compliance with international standards. The key legislation and regulations pertaining to inter-country adoption include:

  1. The Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act):

  • Section 59: Designates the Central Adoption Resource Authority (CARA) as the Central Authority for regulating inter-country adoptions in India.

  • Section 58: Empowers CARA to prescribe guidelines and procedures for inter-country adoptions, ensuring compliance with the Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption, 1993.

  1. The Adoption Regulations, 2017:

  • Regulation 6: Specifies the eligibility criteria for prospective adoptive parents seeking to adopt a child from India through inter-country adoption.

  • Regulation 8: Outlines the procedure for obtaining a No Objection Certificate (NOC) from CARA, a prerequisite for initiating the inter-country adoption process.

  • Regulation 17: Details the requirements for preparing and submitting the home study report by the authorized social worker, assessing the suitability of prospective adoptive parents.

  • Regulation 26: Prescribes the documentation and information to be provided by the authorized adoption agency to facilitate the matching process between prospective adoptive parents and a child available for inter-country adoption.

  • Regulation 33: Specifies the responsibilities of the authorized adoption agency in facilitating the placement of the child with the prospective adoptive parents and coordinating with the Central Authority of the receiving country.

  1. The Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption, 1993:

  • India ratified the Hague Convention in 2003, thereby committing to implementing its provisions in the inter-country adoption process.

  • The Hague Convention establishes safeguards to prevent the abduction, sale, or trafficking of children and ensures that inter-country adoptions are in the best interests of the child.

  1. Judicial Precedents:

  • While not codified in legislation, judicial interpretations and precedents play a crucial role in shaping the legal framework for inter-country adoption in India.

  • Relevant judgments, such as Shabnam Hashmi v. Union of India (2014), emphasize the importance of adhering to the guidelines of the Hague Convention to prevent illegal adoptions and safeguard the welfare of the child.

By adhering to the provisions outlined in the JJ Act, the Adoption Regulations, and international conventions like the Hague Convention, India has established a robust legal framework for inter-country adoption. This framework ensures transparency, accountability, and the protection of children's rights throughout the adoption process, promoting ethical and responsible practices in inter-country adoption.

Conclusion:

 Adoption in India is a complex yet rewarding process that aims to provide children with loving families and opportunities for better lives. Both in-country and inter-country adoption have their own set of legal procedures and requirements that must be followed diligently to ensure the well-being of both the child and adoptive parents. In the following sections, we will dive deeper into these processes to understand their nuances better.


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