Laws Of Adoption In India

This article is the second in a series by Pallavi Bhattacharya, the first of which was published as Adoption For Single Women In India.

Child adoption in India is governed by the Personal Law of each community.

The Hindu Adoption and Maintenance Act, 1956 (HAMA):

This Act provides for legal adoption to those of the Hindu faith or religions that have taken birth from Hinduism. Buddhists, Jains, Sikhs, Brahmos and those belonging to the Prarthana, Arya Samaj, Virashaiva and Lingayat faiths are included under this act.

The woman who adopts should be an adult and of ‘sound mind’. If a single woman is adopting a son the age difference between them should at least be 21 years. If she is however adopting a girl child this age gap restriction doesn’t apply.

The Act allows the adoptive parent to have just one boy child and one girl child. The law makes no distinction whatsoever if the child she may have at the time of adoption is born to her or adopted.

Under this Act the child who is being adopted should be a Hindu and below fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption. Under this Act the adopted child has the same rights as the biological child as far as inheritance to parental property is concerned.

The Guradian And Wards Act, 1890 (GWA):

Non-Hindus (Christians, Muslims, Parsis and Jews) and foreign nationals can adopt under this Act. Foreigners obtain the guardianship of an Indian child who will later be adopted in accordance to the adoption law prevailing in their country. A person can take the guardianship of any number of children of either gender under this Act.

This act has been designed to appoint a guardian for the child rather than substitute his birth parents. Unlike a child adopted under the Hindu Adoption and Maintenance Act, the child adopted under the Guardian and Wards Act can’t take the family name or inherit parental property.

The adopted child can’t avail of the same status as a child born biologically to the family under this Act. The legal guardian-ward relationship exists till the child becomes a major. In practical terms the child may however be able to enjoy the status of an adopted child by receiving inheritance by the way of a will.

The Guardian and Wards Act has been made as the personal law of Muslims, Parsis and Jews don’t formally recognize adoption. Initially Christians weren’t legally allowed to adopt.

However according to the new interpretation given by two High Courts in the country of the personal law governing Christian adoption, legal adoption of a child is now possible for Indian Christians.

Christians under the Guardian and Wards Act have the right to petition the court to adopt the child two years from the date on which the guardianship order was passed.

The Juvenile Justice (Care and Protection of Children) Act 2000:

This Act provides for adoption as one of the options for rehabilitation and social integration of the children in need of care and protection. This Act offers the placement of the child in a permanent substitute family through the legal process of adoption.

Adoption according to this Act means ‘taking permanent custody and responsibility of a juvenile or a child covered under this Act who shall have pari passu rights of a natural born child.’ Under this Act a person can adopt any number of children of either gender.

Unfortunately not many people are adopting under this Act. Child Right Activist Anjali Pawar Kate, Director of Pune based NGO Sakhee, working on child trafficking for adoption issues, explains why, “Adoption under the Juvenile Justice Act is very complicated and lengthy. That’s why adoption agencies prefer the other two acts that they have already been using for many years”

The adoption procedure:

The majority of adoptions in India take place through adoption agencies. Adoptive applicants are first asked to register with the agency. A nominal registration fee is charged.

In the application form you need to fill in basic information like your name, age, education, occupation, income and the preferred age and gender of the child you want to adopt. A single woman who wants to adopt an infant shouldn’t be more than 45 according to CARA guidelines. You need to get a police clearance for the adoption agency to allow you to adopt.

A series of interviews will be taken of the prospective adoptive parent. Her family, friends, relatives, family physician and priest may also be interviewed if felt necessary.

Health check:

Evidence should be provided to clearly prove that the prospective adoptive parent is in good physical and mental health and free from communicable diseases. HIV and Hepatitis B tests are done.

The adoptive parent shouldn’t be suffering from a health problem which may act as a hindrance to raise the child. This however doesn’t mean that any health problem will instantly debar you from adopting. For instance diabetes which is under control or a previous surgery shouldn’t necessarily disqualify you from adopting.

Home-study:

The adoption agency will conduct a home study to ascertain whether you’ll be able to give the child a loving and caring home. The prospective adoptive parent’s home environment and neighbourhood are studied.

Are the family members supportive of adoption? Is the neighbourhood safe and conducive to raising a child? Is she financially solvent to raise a child?

The adoption agency will try to ascertain your personality and lifestyle through observation and interviews. You may be asked to describe a day in your life to help the adoption agency to ascertain if you are suitable to raise a child.

You may be asked to state your likes and dislikes and how you have coped with stressful situations in your life. Have you sailed smoothly through ups and downs in life? Or do you have weak coping skills and low EQ?

Your motivation for the acceptance of adoption will be carefully explored. Most importantly are you adopting just to fulfil your needs or for the sake of the child?

After all for adoption agencies the well-being of the child is the primary concern. If you are adopting a child as you think he/ she will ‘solve your life’s problems’ like loneliness and boredom, you may have to undergo counselling to modify your thinking.

Through the home study you are explained what raising an adopted child requires of you. Faulty notions of adoption and replaced with authentic factual information.

Selecting a child:

If the home-study has deemed you eligible for adoption, the process of selecting a child begins. You are not taken to a nursery full of children to choose a child for yourself.

The adoption agency will show you one child at a time. They will select a child who they think is suitable for you. Data like the age, health details and social background of the child will be shared with you before showing you a child.

Some adoption agencies will show you the photograph of the child before actually showing him/ her to you.

Mal-practices by adoption agencies while selecting a child for you:

Advocate of the Mumbai High Court, Uday Prakash Warunjikar points out, “The demand and supply ratio of adoption shows an imbalance. The demand greatly exceeds supply. Because of this adoption houses have started giving preference to certain candidates.”

Anjali Pawar Kate adds, “Unscrupulous adoption agencies make rich candidates pay more than the stipulated adoption fees in exchange of a fair-complexioned, healthy and good looking baby.”

Make sure that you don’t pay a rupee more than the adoption fee fixed by CARA. For Indian adoption (in country adoption) it is maximum Rs 15,000, for foreign adoption (inter country adoption) it is maximum $ 3500.

Don’t make looks a criteria for adopting a child:

Psychologist Dr.Sanjoy Mukherji cautions prospective adoptive parents against making the looks of the child a parameter for selection. He says, “Please don’t go by the looks of the child. For instance just because you are fair you don’t have to adopt a fair child.”

“Rather than trying to find a child who matches your looks, try to see if your vibration matches with the child. Especially if you are adopting an older child try to ascertain if the personality of the child suits you.”

“It is the soul match that matters. Ultimately the child as well as the people around you will know that the child is adopted; hence, the looks should not be the criterion at all. Give the child so much of love that even someone’s own child may not get.”

Adopting an older child:

There is a long queue for adopting babies. Some candidates just have to wait on endlessly for adoption. Older children have fewer takers. So if you go for an older child, adoption may be a faster process for you.

Sometimes you may be dissuaded from adoption an older child as it is believed that as older children ‘come with a lot of emotional baggage’ it’ll be difficult for them to adjust easily to your home, family and lifestyle. Bonding surely takes longer with an older child but please do remember that people have adopted and successfully raised older children.

Arrange for several preliminary meetings for longer and longer periods till an older child is comfortable with you. The adoption agency may allow you to take out the child for outings and even night stays at your home. Try to win over the confidence and trust of the child.

An older child has the right to choose whether he wants to be a part of your family. In the case of placement of a child above six, both written and verbal consent must be obtained from the child.

The child should be freely allowed to express his views of being separated from his familiar institution and being reintegrated into a family. His institute’s social worker needs to assure him/ her that he/ she will keep in touch as long as he/she needs to.

You may find that a child who was quiet and polite in the institute is having behavioural problems like temper tantrums, disobedience, loss of appetite, bed-wetting and poor performance in school. Please don’t worry. Visit a child psychologist who will guide you how to handle this.

Adopting a special child:

The reason for adopting a special child should never be to show off to society how noble you are. Nor should you adopt a special child because you pity him/ her. Rather it should be a pure act of love.

Special needs children seem to be the hardest ones to place in adoption. So adoption agencies sometimes try to coerce prospective adoptive candidates to adopt a special needs child.

Please don’t adopt a special needs child if you aren’t prepared for it. Adoption agencies don’t have the right to make you feel guilty if you don’t want to adopt a special needs child.

Special needs children require extra time, energy and money to be raised as compared to children without disabilities. They also need extra love, patience, compassion and strength. You need to update yourself on the disability the child has and train yourself to be able to handle it.

Adoptions within the family:

In India unlike certain foreign countries it is not the norm to advertise in newspapers or magazines if you want to adopt a child. Most adoptions are done through adoption agencies. However adoptions within the family also take place. Many families feel that rather than giving up a child to a stranger they should rather place the child with a relative.

Can you adopt a child from a foreign nation?

Foreigners adopt children from India. But can we adopt children from foreign nations including our neighbouring countries? According to Anjali Pawar Kate, “The Hague Convention has categorized India as a ‘sending country’ as far as adoption goes. So Indians can’t adopt children from other countries.”

Adopting from a town:

As queues for adoption from metropolitan cities are long, people are going to small towns to adopt. Adoption agencies in towns may have far shorter queues.

Integrating an adopted child into your life:

Bringing an adopted child home needs intensive preparation. Just painting and decking up a nursery with expensive stuffed toys is hardly a preparation. Buy some toys for your child but you don’t have to convert your whole house into a toy shop.

What is far more important that you locate a paediatrician to look after your child. Make sure that your child is given all the vaccinations.

Buy some basics like baby clothes, furnishings (crib, pram, baby car seat) and baby food. Take leave from work for a while. Find out if your work place gives adoptive parents the same length of leave as birth parents. Ask people who have children to train you in infant care before getting a child home.

Says single mother Sulochana Kalro who adopted a two-year-old boy nineteen years ago, “All the time you need to plan for a very important little member to be added to your family. Before the child comes home you think just of yourself. But after adoption you think of the child too. His/ her health and welfare comes first.”

“You need to make adjustments in your life for the sake of the child. For instance the food you cook for him/ her will be different from the spicy food you normally eat. You need to cut down late hours at work to come home early to spend time with your child.”

Some neighbours and relatives may ask inquisitive questions and make annoying remarks on you adopting a child. Try to stay away from these unpleasant people. Handle them with firmness and maturity instead of getting self-conscious and hurt.

How to tell the child that s/he is adopted:

It is detrimental not to tell the child that s/he is adopted. Many couples sadly don’t have the courage to tell their adopted child the truth. If the child finds out from other sources that s/he is adopted s/he may feel highly betrayed, undergo an identity crisis and try to search for his/her birth parents.

A single woman of course has no other choice but to tell the child that s/he is adopted. After all as the child grows up he/ she will ask why s/he doesn’t have a father.

Jaissita Panigrahi, Managing Trustee of Bal Vikas, advises, “Through stories of adoption from epics and religious texts, children may be acquainted with the concept of adoption. The word ‘adoption’ should often come up during conversations.”

Sulochana Kalro, Managing Trustee of Bal Anand World Children Welfare Trust India adds, “Between age five and six the child should know that he is adopted. This is because the child begins to go to school at this age and meets his peers. Peers won’t be as protective as parents are.”

“In the case of adoption by a single mother peers will start asking the child about his/ her father. Use your wisdom and maturity to tell your child about his birth parents. What you tell a ten-year-old will be different from what you tell a fifteen-year-old about his/ her adoption. You give a teenager a more realistic answer about his birth parents.”

Hansa Apparao, Consultant of the Indian Association for Promotion of Adoption and Child Welfare says, “You can’t hide from the child that he/ she has two sets of parents- one who brought him into the world and the parent who is raising him/ her.”

“Telling the child that he/she is adopted is not a one-time-affair. It is a gradual process that can start early. There is no single way to deal with this. Each child is different, and so are the parents. Important thing is that the parents be comfortable about their adoptive status; and avoid falsehood.”

“At the same time they need to keep in mind their child’s level of understanding and age, when talking about the birth parents. Even though they may go through temporary disturbance, especially during adolescence, most children are able to absorb the sensitive information about the birth parents. A strong bond between the adoptive parent and the child helps in overcoming the challenges.”

Explain to the child that only blood ties don’t make a family. Husband and wife are not related by blood, nevertheless deeply love one another. Similarly an adopted child may be loved just as much as a biological child.

Psychiatrist Dr.Rajiv Anand advises, “Explain to the child that his/ her adoption is just a theoretical reality. You are my child. I am your mother. Not only have I adopted you but you have also adopted me. We are now a happy family. You should never ever give the child the impression that the biological mother deserted her and therefore s/he is a rejected child.”

Rather tell him/ her that his birth mother loved him/ her so that she gave him/ her for adoption so that he/ she would find a happy home to grow up as unfortunately the situation wasn’t conducive to her raising him/ her. If the bond between the adoptive mother and child is strong enough he/ she may never want to go on a search for his birth parents.

Says 21-year-old Siddharth Kalro, the college-going son of Sulochana Kalro who is also a talented artist, “I never thought it was important to find out who my birth parents were. Nor did I ever miss not having a brother or a sister. My mother is my world. She is very sensitive, loving, caring, understanding and hardworking. I feel she is the greatest mom in the world.”

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