Adopting a child is certainly a huge decision one can make. There are lot of considerations that are to be dwelled upon before making a move. It influences you emotionally and financially. There are questions not only w.r.t your capability as a possible new parent to the child, you also need to face numerous legal complexities that comes along with it.
Adoption is a legal affiliation of a child and it forms the subject matter of personal law. There are three major legislations governing adoption process in India: The Hindu Adoption and Maintenance Act of 1956, the Guardians and Wards Act of 1890 and the Juvenile Justice (Care and Protection) Act of 2000, amended in 2006.
The adoption under Hindu law is governed by Hindu Adoption and Maintenance Act of 1956. Muslims, Christians and Parsis have no adoption laws and have to approach court under the Guardians and Wards Act, 1890. Muslims, Christians and Parsis can take a child under the said Act only under foster care. People of these faith, adopt under Guardians and Wards Act of 1890.
All adoptions in India are required to follow the procedure set out by the Central Adoption Resource Agency (CARA).
The child’s biological parents have the right to relinquish their child to licensed adoption agencies. These agencies draw a paperwork to legally terminate the biological parents’ rights. They are given 60 days after the papers are signed to be as sure as possible before their rights are irrevocable terminated.
At the end of 60 days after the relinquishment, the child becomes a ward of the state and the process to find a more permanent solution is started.
An aspiring adoptive family will need to approach a licensed agency. The list of licensed adoption agencies is available at the CARA website. Thereafter, they undergo a process of counselling so that they get a more real expectation of adoptive parenting and complete the paperwork required.
Paperwork: For an aspiring adoptive parent, paperwork is the start of the legal process of adopting a child. It evaluates their strengths and address any weaknesses their application may have. People applying as single parents are required to show evidence of a support system for the child.
List of documents required for adoption are:
Home Visit: A home study involves a visit to the prospective adoptive home to get an idea of the couple/person applying. It is undertaken by the social worker or a child adoption agency.
After the home study, the couple/person is listed on the agency’s waitlist. The time between completing the application and identifying the child for placement is influenced by how many adoptive families have been placed on the waitlist and how many children have been cleared for adoption.
Placing the child: The agency tries to match some feature of the child with the adoptive family in the interest of the child.
Once a child is identified, he/she is placed with the family under ‘foster care’, before the adoption deed is finalized. This part of the process can take some time given the court’s workload. Until the adoptive deed is final, the adoption is not legally final.
Birth Certificate: When the adoption deed is issued by the courts, the adoptive family can apply through the courts for a birth certificate. The birth certificate with the agency’s name as the parent is superseded by the new birth certificate issued. The new birth certificate mentions the adoptive parent(s) names as Father/Mother.
Indian citizens, NRIs and non-Indians residing outside India can adopt a child from India. While these adoptions are also legalized under one of the three Acts mentioned above. The rules related to these adoptions can be different.
Assessing the capability of the applicant
A Child Welfare Agency licensed by the government of the country in which the foreigner resides must sponsor every application of a foreigner for adoption of an Indian child. This agency will appoint a professional social worker to prepare a Home Study Report that will indicate the basis for the sponsorship of the foreigner’s application.
Additional documents that are required to be submitted
In addition to the list documents mentioned above a declaration of willingness shall also be submitted. This document will state that the foreigner is willing to be appointed as the child’s guardian. He shall also furnish an undertaking that he will adopt the child in accordance with the law of the country in which he resides at the earliest, but not later than two years from the date of the child’s arrival in his country.
The application for guardianship must be made before the court of the District Judge within whose jurisdiction the Social and Welfare Child Agency in India that is processing the application of the foreigner is located. The application will be filed by the Indian welfare agency or a person duly authorized by them in this regard.
The Court will issues notice to the Indian Council for Child Welfare (ICCW) and the Indian Council for Social Welfare (ICSW) to scrutinize the guardianship application. These organizations are expected to give their considered opinion whether they believe that adoption by the foreign national is in the child’s best interests.