Intercountry Adoption in India. Potential Risk of Human Trafficking

INDEX

INTRODUCTION

1. A Brief history

2. Does Adoption really for the welfare of the child?

3. Intercountry Adoption and India

4. International law on Adoption
4.1. CRC and Intercountry Adoption
4.2. Hague Convention

5. Intercountry adoption and human trafficking
5.1. Impact of child trafficking in India

6. CONCLUSION AND SUGGESTIONS

BIBLIOGRAPHY

INTRODUCTION

Adoption occurred primarily to preserve and transmit family lines or inheritance, to gain political power or to forge alliance between families. The Hammurabi code contains the earliest legal text referring to adoption in eighteen century. The notion of adoptions as a means to promote children’s welfare did not hold until the mid-nineteenth century.¹ In 1974, world Population Plan of Action of the world population called on countries to facilitate that child adoption could play a role in approximating biological parenthood for couples. Government policy on child adoption plays a major role in shaping individual and social behaviour as a powerful determinant.² The issue that we are highlighting in this project is the protection of children from illegal adoption or the adoption that are done for an illegal purpose that illegal purpose we are putting forward is human trafficking. Human trafficking is a major concern not only intra country but also inter country. The aim is to identify the problem and suggest the ways which we can seek towards a better solution. The first topic is a brief history in which the genesis of adoption has been explained after the history it is whether adoption is really for the welfare of the child we have looked into two aspects of adoption: the pro adoption and the anti-adoption. Third we have explained the relationship between inter country adoption and India, what are the laws which provide such kind of adoptions what is lacking in those laws, what is their impact, is this adoption really happening in the country, the risks dealt with the laws. Fourth, the international laws of adoption whether they help in protecting the interest of the child, the lacunae in laws, different stands that put up in order to look for welfare of the child. Fifth, addressing the problem of child trafficking on the basis of illegal adoption, how far the laws dealt with it, what has to be done, how to protect children from such abuses. There must be a strong, stable and legitimate inter country adoption infrastructure. Adoption can only maintain a principled and enforceable line against child selling and child trafficking when effective systems of enforceable regulation are in place that effectively prevents adoption systems from becoming markets in children. The refusal or failure of the domestic and inter country adoption systems to put those needed regulations into place speaks volumes regarding the ethics of the domestic and inter country adoption. Inter country adoption is a conditional good; inter country adoption as child trafficking is an evil. Only when the law, society, and inter country adoption system are reformed will the conditions under which inter country adoption can flourish as a good be established.

1. A Brief history

The first traces of adoption can be found as far back as ancient Rome. Under 6th century AD Roman Law, Codex Justinianeus, when the family patriarch was poised to die without a male heir, an heir could be provided from another family through adoption.³ Families with many sons often “adopted” their sons to other noble families in order to forge a coveted family connection. This form of indentured servitude under the guise of adoption continued until the mid-19th century when society began to think more about the role the collective should play in the life of the individual.⁴ From this new ideological context, emerged the idea that the welfare of orphaned children should be taken into consideration. Adoption, it was reasoned, should be more than a way to provide an heir or servitude. Adoption should be used to promote the best interest of the child in the best circumstances possible. In 1851, the Massachusetts Adoption of Children Act became the first adoption law to protect the interest of the child. The statute required a judge to determine if the adoptive parents had the consent of the biological parents, or guardian, of the adoptee.⁵ Furthermore, the adoptive parents had to prove a “sufficient ability” to bring up the adoptee and to provide them a “suitable education.” The approval of the adoption was left to the discretion of the judge, cementing adoption as a state issue rather than a federal issue.

2. Does Adoption really for the welfare of the child?

Adoption was primarily to forge alliances or for any familial inheritances it came as a method of welfare in mid nineteenth century but it still points directly to many profound contradictions within our contemporary ideas about family, childhood and motherhood. It brings to light our families entanglement about relation between genetics and biology with broader cultural anxiety surrounding race and citizenship. The issues regarding the adoption are inequality, lack of regulation, human right abuses, lacunae in law. There are two stances in addressing these problem .The pro adoption stand tends to emphasize the best interest of children. It is often said that children grow up in an environment in which they are accepted and given a name to their own identity. The anti- adoption stand focuses not only on children but also on birth mothers as victims of system around them.⁶ It does not benefit the birth mothers or her other children or improves their situation. They only see it as a long chain of wealthy intermediaries and inclined towards a market based approach according which children are bought and sold in the market.

Both of these stances seeks welfare of the children but Whatever has been said about the welfare of the child it is still considered by some to be a process which transforms non- relatives into kin through systematic “matching” techniques. Social welfare, human science and public policy proof concerned with adoption have faced constant resistance from the public and struggled with their own chronic uncertainty about what appropriate standards should be. Rationalization in child adoption has been only partially successful by counting legislative reforms and computing the superior outcomes of adoption. It attracts curiosity in part because it is distinctive and became a powerful hold on public imagination. Although the welfare of the child was out of question before nineteenth century, after which people become prominent as public awareness of child abuse and damage it caused grew. The law of adoption are made in a way that placed child welfare above all things. For example, Child Welfare Act, 1978 in India through which the federal government’s role in the modern child welfare system has increased as federal funding augmentations are accompanied by new rules and requirements emphasizing greater accountability on the part of states in achieving positive child outcome.

3. Intercountry Adoption and India

The constitution of India gives paramount consideration to welfare of children Article 15(3) enables the state to make special provisions for children. Article 23 prohibition of traffic in human beings and forced labour. Article 24 provides that child below the age of 14 years shall be employed to work in any factory or hazardous mine. Article 39 (e) & (f) provides that the state shall direct its policy towards security that the tender age children is not abused, that children are not forced by economic necessity to enter avocations unsuited to their age and strength and faculty to develop in healthy manner.⁷ The court and the whole legal system tried to rule in protection of children. Inter country adoption is the most sensitive, controversial and complex aspects of adoption. It involves a variety of principles and procedures over migration, citizenship and socio economic situation of adoptive parents matching parents with child and acceptance of child in different community and culture.

The term "Inter-Country Adoption" as defined at the European Seminar on Inter-Country Adoptions, May 1960 "represents an adoption in which the adopters and the child do not have the same nationality as well as in which the habitual residence of adopters and the child is in different countries.⁸ Inter country adoption involves transfer of children for parenting purposes from one nation to another. It is perceived as a solution to the child deprived of family in country of origin to another country. It is largely a phenomenon of mid-twenty century. The adoptive parents and children meet across line of difference involving not just biology but also socio-economic class, race, ethnic and cultural heritage.

The basic law of adoption in India is the Hindu Adoption And maintenance Act, 1956 it only deals with domestic adoption. The Juvenile Justice Act, 2000 having provisions relating to adoption of delinquent and abandoned children, both of these Acts have no bearing to inter country adoption. Such adoption have been taking place by reasoning to provisions of Guardians And wards Act, 1890 under sec 7⁹ according to which foreign persons can be appointed as guardian.

In 1984, Laxmikant pandey v Union of India¹⁰, it challenged the validity of inter-country adoption before the hon’ble Supreme Court through a PIL on the basis of an article published in the mail highlighting the sale of babies in west Bengal. The Supreme court examined the procedure followed for inter-country adoption along with rules and procedures. The Supreme court also examined the Adoption of Children Bill, 1972 and 1980 regarding the norms the Central government has to follow in these kinds of adoptions.

The Supreme Court laid down the principles and norms which must be observed and the procedure which must be followed in giving a child in adoption to foreign parents so that the abuses to which inter-country adoptions, if allowed without any safeguards, could be considerably reduced, if not eliminated, and the welfare of the child would be protected.

There is then the revised guideline for inter country adoption they contain detailed scheme of organisational setup established to promote and regulate inter country adoption with various checks and balances. As regards with welfare agencies those dealing with intercountry adoptions are to be recognized by concerned state government child welfare agency providing placements of children for intercountry adoption is called placement Agency and it is recognized by Central Adoption Resource Authority (CARA).

Where reciprocity of recognition exists, that is to say, an adoption having taken place in one country is by virtue of an international treaty, recognized in the other country. An adoption in any member country of the Hague Convention represents this kind of inter-country adoption. In 1993, India became a signatory country as a non-member to the final Act of Hague Conference on private international law relating to adoption. Since India is a signatory to the final Act, it is under an international obligation to give effect to the international convention.

4. International law on Adoption

Intercountry adoption is a subject of international law in sense that it involves immigration and also raises core national sovereignty issues. And most importantly, it acts as a humanitarian matter involving with Human Rights which are crucial to everyone. There are two important treaties regarding Intercountry adoption Convention on Rights of Child (CRC) and Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoption (Hague Convention). CRC is most relevant human rights convention applicable to Intercountry adoption whereas Hague convention is most directly applicable treaty specific to Intercountry Adoption and India is a signatory to both of these conventions.

4.1. CRC and Intercountry Adoption

CRC appears to take a very limited view on whether inter country adoption is appropriate. However, the CRC also specifically prefers in-country foster care over inter country adoption, and initially appears to favour in-country institutional care over inter country adoption.¹¹ These latter positions are more controversial, and appear to conflict with the Hague Convention. Article 7 states, “The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents. It is important as failure to register the birth in sending countries makes it difficult to determine the age and family origins which lead to abusive practices.” Closed adoption has typically involved the destruction of any legal relationship or contact between the child and his or her biological parents. The secrecy associated with closed adoption has made it difficult or impossible for a child to “know” her biological parents even if she, as an adult adoptee, wishes to conduct a search. The CRC thus implicitly raises a question of whether systems of adoption deny children information about their biological parents, particularly when a child seeks such information, violate the CRC.¹² It further states that “State Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference”¹³ this is contrary to the theme of inter country adoption as it involves loss of original identity, including nationality. Is it implied that an adoption that involves the unfortunate loss of some aspect of the child’s rights would still presumably be legal within the framework of the CRC, if overall the adoption was in the best interests of the child. The dispute further emanates in the language of article 3 which further states “in best interest of child” what is the best interest of child it is a subjective term and any meaning can be given to it. The question that can be raised is which remedy to be applied when the child has been adopted illegally and whether the child should have access to information regarding his birth, family, origin. It also raises a question under article 12 which talks about the consent of the child for adoption when he is older in age and has maturity but age is not specified and how to ascertain maturity.

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¹ Robin Anne Shura, Inter country Adopition: theoretical Analysis (2009) (unpublished Phd thesis, Case Western Reserve University)

² Peter Conn, “The Politics of International Adoption”, vol.1 issue 28, Origins: Current Events in Historical Perspective

³ Supra note 2

⁴ Peter Selman , “The rise and fall of intercountry adoption in the 21st century”, https://doi.org/10.1177%2F0020872809337681 visited on (27th Oct 2020)

⁵ Id

⁶ Emily Matchar, “Meet the new ant-adoption movement”, The New Republic, sept 2,2013

⁷ The Constitution Of India, 1950, the provisions for the welfare of the child has been provided in Article 15 (3) which provides for special provision for women and children under Fundamental rights, Article 24 prohibits employment of children in factory and hazardous places and Article 39 (e) &(f) provides for social security of the children so that they should not be abused under Directive Principles of State Policy.

⁸ Marianne Blair, “Safeguarding the Interests of Children in Intercountry Adoption: Assessing the Gatekeepers”, 34 Cap. U. L. Rev. 349 (2005).

⁹ Guardians & Wards Act 1890, sec 7 provides for the power of court to make order as to guardianship where the court is satisfied that it is for the welfare of the child either of the person or the property or both.

¹⁰ 1984 AIR 469, 1984 SCR (2) 795

¹¹ David M Smolin, “Inter country Adoption as Child Trafficking”, 39 Val. U. L. Rev. 281 (2004).

¹² Supra note 13

¹³ Orr, Shelly, "Human Traffiing Though International Adoption" (2018). Global Honors Thesis. 58. https://digitalcommons.tacoma.uw.edu/gh_theses/58