Adoption is a legal process that assists a person to become a parent of a child, even if the intending parent and the child are not related by blood.
The process of adoption of a child is joyous for the parents as well as the child. However, the process of adoption and making a decision is long and tedious. The prospective parents may face legal hassles as well. This article would run you through the law and procedure for adoption in India.
Laws governing adoption in India:
There are 3 main legislations in India, under which one can adopt –
A. For Hindus / Buddhists / Jains / Sikhs
The first legislation which regulates adoptions in India is the Hindu Adoption and Maintenance Act, 1956 (HAMA). The law stipulates only direct and private adoption, thus the adopted child has to be actually handed over to the adoptive parents.
Who can adopt?
· Under the Act, only Hindus, Buddhists, Jains, and Sikhs can adopt. Both the parties, i.e. the child as well as the parents have to be Hindus, Buddhists, Jains, or Sikhs.
· Any male wishing to adopt has to be above the age of 18 years and of sound mind. If he is married, he has to take consent of his wife.
· Females above the age of 18 and of a sound mind, can also adopt, if she is single, unmarried, divorced or widow.
Who can be adopted?
· The age of the child being adopted must be below 15 years.
· The child must be a Hindu, Jain, Sikh or Buddhist.
· The child must be unmarried.
· The child must not have been already adopted.
Other Conditions that need to be fulfilled:
· A person who already has a male child cannot adopt a male child.
· A person who already has a female child cannot adopt a female child.
· An age difference of 21 years must be there between an adoptive father and a female child.
· An age difference of 21 years must be there between an adoptive mother and a male child.
· Two or more persons cannot simultaneously adopt the same child.
· The adoption process should be free from any consideration being paid by either party.
When is the Court’s Permission required?
- In case of death of both mother and father, or
- In case both mother and father have renounced the world, or
- In case both mother and father have abandoned the child, or
- In case the Court has declared both mother and father of an unsound mind, or
- In case the parentage of the child is not known.
Once all the above-said conditions are met, the adopted child will be considered the child of the adoptive mother/ father in all respects. This would be effective from the date of adoption. An adoption once made validly, cannot be canceled at a later stage. This is finalized with the registered deed for adoption.
B. Secular Laws in India adoption in all religions
In India, the Juvenile Justice Act, 2015, governs the adoption process by non-Hindus.
Who can adopt?
- The act permits adoption by an NRI or a foreign citizen, by following the procedure provided in the Act
- A male or female person, irrespective of marital status
- A single female individual can adopt a child of any gender, whereas a single male cannot adopt a female child
- A stable marital relationship of two years is necessary for a couple to adopt
Who can be adopted?
· As per the Juvenile Justice Act, a single person or a couple can adopt:
i) an orphan child, or
ii) a child who has been surrendered, or
iii) a child who has been abandoned
The Juvenile Justice Act permits adoption irrespective of religion. Thus, a Muslim, Parsi, Christian, etc. can also adopt under this Act.
Other Conditions that need to be fulfilled:
- The prospective adoptive parents (PAP) need to be capable for the upbringing of the child, in all spheres including physically, mentally and emotionally.
- They should be financially capable to raise a child.
- If a couple is parents to three children already, they would not be considered for adoption. The only exception being special cases of relative adoption, adoption by stepparent or special needs children.
- The consent of both the partners is imperative if a couple is adopting.
- Eligibility of adoptive parents with regards to their age as of the date of registration of adoption is stipulated as follows-
- For adopting a child of up to 4 years of age-
a) The maximum composite age of a prospective couple should be 90 years.
b)The maximum composite age of a single prospective parent should be 45 years.
- For adopting a child of between 4-8 years of age-
a)The maximum composite age of a prospective couple should be 100 years.
b)The maximum composite age of a single prospective parent should be 50 years.
- For adopting a child of between 8-18 years of age-
a)The maximum composite age of a prospective couple should be 110 years.
b)The maximum composite age of a single prospective parent should be 55 years.
A minimum age difference of 25 years needs to be there between a child and the adoptive parent. The exception to this being adoptions by relatives or by step-parent(s).
C. Guardianship – Guardians and Wards Act, 1890 (GAWA)
- The Act governs Guardian-and-ward relationship solely.
- After attaining the age of majority, both parties relinquish any form of legal rights and responsibilities towards each other.
- It is distinct from the adoption laws in India as it does not establish a parent-child relationship, rather establishes a Guardian-ward relationship.
Who can place a child for adoption?
- A child can be placed for adoption by their biological parent(s), only to a licensed adoption agency. The role of these agencies includes initiation of legal paperwork for termination of the biological parents’ rights. The parents giving up the child are given a period of 60 days period before the termination becomes final.
- A Child Welfare Committee may declare a child “Legally Free for Adoption” if he is found to be abandoned or whose caretakers cannot be traced.
- The Juvenile Justice Board can place a child for adoption who is court-committed.
Procedure for adoption under the Guardians & Wards Act, 1890 (GAWA)
The Central Adoption Resource Authority (CARA) is the primary statutory body governing adoptions in India. The procedure covers both, in-country and inter-country adoptions.
- “Carings” is an online portal under CARA that gives a platform to prospective parents to adopt. The process can be initiated by first registering on their online portal (http://carings.nic.in/Parents/parentregshow.aspx ) or their website (http://cara.nic.in/), or through approaching the District Child Protection Officer (DCPO).
- The prospective parents need to provide information in the form relating to the adoption preferences. The parents need to provide documents to establish their identity, which includes Birth Certificates, Marriage Certificates, Income Tax Returns, Medical Certificates etc.
- Once all the formalities are completed, a registration number will be given to the PAP or Prospective Adoptive Parents.
2 – Home Study:
- To get veracity on the background of the adoptive parents, a home study is conducted by a social worker. This is done post the completion of the registration process. The purpose of the study is to ensure a conducive environment of the child and to verify the information submitted at the time of registration.
- The PAP can also express their desire and readiness to adopt a child in a form given to them.
- The expenses of such home study shall be borne by the PAP.
- The report of the home study is then uploaded on the “Carings” system.
3. Matching the Child and Parent:
- As soon as a child and a PAP are matched by the Carings system, the parents would be sent the required information about the child.
- The PAP are given a time bracket of 48 hours to either accept or deny the child.
- The PAP are given a maximum of 3 rounds of such referral system.
- Once the PAP are satisfied with the child matched, they would have to visit the child care institution within a period of 2 weeks to initiate pre-adoption foster care after the necessary paperwork.
- No parents are given the liberty to select a baby completely of their choice.
4. Procedure for Court Regulated Adoption:
- If an adoption application has to adjudicated by the Court, the adoption agency will file an application before the court and receive a formal date to obtain the approval by the judge.
- On the date provided by the Court, the PAP along with the child would have to appear before the judge. An assistance of a lawyer would be suggested here.
- Once a formal order of the court is issued, the PAP becomes the legal parent of the child, and the adoptive agency would be required to provide a new birth certificate of the child.
5. Follow Up of Progress for Child Welfare:
- To monitor the well-being of the child at his new home, a Specialised Adoption Agency (SAA), which prepares the home study report, will prepare a post adoption follow up report for a period of two years, from the date of pre-adoption foster placement.
Process for Inter-Country Adoption:
- It is governed by the Juvenile Justice Act, 2015
- CARA must issue a NOC for an inter-country adoption.
- NOC is mandatory in cases of all inter-country adoptions, which is issued by CARA.
- The Authorised Foreign Adoption Agency (AFAA) carries out the post adoption follow up for a period of two years.
DO’s and DON’T’S for adoption in India
· Any person wanting to adopt shall do so from a Specialised Adoption Agency, recognised by State Governments, and not from any unauthorised institution.
· Utmost care and caution must be shown while uploading the documents. Incorrect documents can lead to cancellation of registration.
· CARA guidelines shall be referred for any charges to be levied.
· PAP should be wary of any middlemen and touts.