Adoption Laws: Need for Reform

Author(s): S. Aarthi Anand and Prema Chandra

Source: Economic and Political Weekly, Vol. 37, No. 38 (Sep. 21-27,
2002), pp. 3891-3893 Published by: Economic and Political Weekly
Stable URL: http://www.jstor.org/stable/4412629
Accessed: 26-12-2015 06:03 UTC
Your use of the JSTOR archive indicates your acceptance of the Terms &
Conditions of Use, available at http://www.jstor.org/page/
info/about/policies/terms.jsp
JSTOR is a not-for-profit service that helps scholars, researchers, and
students discover, use, and build upon a wide range of content in a
trusted digital archive. We use information technology and tools to
increase productivity and facilitate new forms of scholarship. For more
information about JSTOR, please contact support@jstor.org.
Economic and Political Weekly is collaborating with JSTOR to digitize,
preserve and extend access to Economic and Political Weekly.
This content downloaded from 14.139.214.181 on Sat, 26 Dec 2015
06:03:49 UTC All use subject to JSTOR Terms and Conditions
http://www.jstor.org

Adoption Laws:
government now. First, it must begin the
adoption process of children currently in its custody and in the
meanwhile ensure that they are taken care of well even if it requires
their transfer to recognised, re- puted agencies within and without the
state. Second, a critical examination of the existing laws
andtheirimplementationis the need of the hour. If there is indeed
commercialisation of adoption by a virtual
cartelthenitisequallytruethatthisnetwork
could not have sprung up overnight. That leads us to the only possible
conclusion: thateither the laws are inadequateor there has been a
laxity in the administrationof the same. The CARA guidelines in accordance with the judgment of the Supreme Courtin
theLaxmikantPandeycase, have created a. multi-level scrutiny system
composed of several authorities like the
Need for
Reform
Theadoptioncontroversythateruptedlastyeardrewattention to the many
ills that clog the wheels of adoption in India. But
merelypunishingthe guilty will not ensure sweeping changes.
Attheveryoutset,theneedfor changemustrecognisethe
disparitiesthatexist,asfor instance,theprocedural
differencesbetweenin-countryvs inter-countryadoption processes. It
mustalso involveall actors in the system
includingthe childrenthemselves.
S

AARTHI ANAND, PRENIA CHANDRA

R acketbusted'is a familiarhead- linethatinnormaclircumstances is
greetedwithindifferenceif not
government issued whereby they took care of childrentemporarilytill
they were transfore, they were unlike other unrecognised agencies from where the
children were
seized. Thirdly, though the law requires
unrecognised agencies to transfer the childrento recognised agencies
within one
monththeonlyreasontherewasnophysi- cal transfer of the children was
that of lack of infrastructural facilities such as space, adequate staff,
etc.
While the court's judgment is awaited, what is worrisome about this
controversy isthatthechildrenarestillunheard.'There have been reports
that the children were
actually created prospective adoptive
children.The adoptionagenciesdangled
monetaryincentives before biological
parents,whichviolatedthe mostfundamentalnormsgoverningadoptions.The
mentispursuingthecaseagainsttheNGOs
accusedwereguiltyofcriminaclonspiracy
withgustotherehasbeenaneeriequiet as they workedhand-in-glovewith
each when it comes to pursuing those responotheronthematteroftherelinquishments sible within the administration
for the deed thatbiologicalparentsdesirousof criminal negligence that
resulted in the givinguptheirchildrenforadoptionmust death of the
hapless children. The grim sign.Thesignatureswereeitherforgedor
realityisthatchildrenarestillgrowingup
nising agencies, etc, andarmedall of them
with wide powers, thus creating a whole,
complicated procedure which has to be
undergone for an inter-country adoption. Then did the racket arise in
spite of or as
adirectresultof the law? We would be
behaving like the proverbial ostrich if we deceived ourselves into
believing thatthe racket was the disease because the truth is that it is
merely symptomatic of what ails the system. Prescriptiondrugs should
notbesettledformerelybecausetheymay
help in alleviating the superficial - to treat the deep real causes we
must critically examine the premises and rationale of our laws and the
seriousness with which we engage in that task will perhaps.beindicative of our willingness to renegotiate were thediagnosistosorequire.
Deciding Principles

The objective of the CARA guidelines is 'to provide a sound basis for
adoption'.
Themajorpremisethattheguidelines are based on is thata family,
onfailing which a familial environment, is best suited for the balanced
development of a child.
Further sweeping changes such as
industrialisation and urbanisation have
rendered family support non-existent in
some cases whereupon the burden shifts
to the community, society and state to
provideinstitutionalandnon-institutional
support. The government of India consi- ders adoption to be the best
non-institutional support for the rehabilitation of children. There is no quarrel with
adop- tion as a suitable alternative when biolo- gical families are
unable to or undesirous
boredombutsuchwasnotthecasewith thecrackdownundertakenby
thegovern- ment of AndhraPradeshin the recent
times.Severaaldoptionagencieswereshut- down, the childrenseized and
a whole
bunchof high-profilepersonswho ran theseNGOswerearrestedon
thecharge
of child traffickingunder the guise of inter-countryadoption.Firstly,the
state
allegedthatinsteadof facilitatingthe adoptionof
childrent,hevariousagencies
obtainedfraudulentlyorbelongedtofic- titiouspersons.The
agenciesdeniedall theseallegationsandsaidintheirdefence that the
signatures were those of 'Lambadas'whobecauseof theircaste were
nomadicand hence could not be
located.Secondly,by virtueof govern- ment orderMs No 16 dated April
18, 2000, mereregistrationunderthe SocietiesRegistrationAct,1860didnotqualify agencies to procure,detain or
actually constitutepartof the adoptionprocess.
AnitaSen,directrice',PreciousMoments', oneof
theaccused,claimedthattheorder was not applicableto those who functionedunderthe 'fit person'licence the
atSishuVihar.Inthistug-of-warbetween government and agencies, the
ones who
are really being deprived of childhood, homes, families, future and
possibly their livesarethechildrenbecausetheadoption
process has come to a grinding halt. They are stuck with no prospects
of an adoptive home even in the distant future. The re- sponsibility of
the state does not merely endwithensuringconvictions asperlaws
courtsandtheentirecriminaljustice system are in place to do the

needful. But what the government can and must do is to decide what
happens next.
There are two equally important considerations that must motivate the
ferred to recognised agencies. There- voluntary coordinating agencies,
scrutinot adequately taken care of by the agencies; equally alarmingly, it is also reported that 12 children died while
in government
care at Sishu Vihar. Though the governEconomicandPoliticalWeekly September21, 2002
This content downloaded from 14.139.214.181 on Sat, 26 Dec 2015
06:03:49 UTC All use subject to JSTOR Terms and Conditions
3891

of caring for children. But subsequently it is not open to any institution,

govern- and mistreatmentpotential is the sole pre- the government
made policy decisions ment or otherwise not to process the rogative of
inter-country adoption while which were based on incorrect assumptiapplication of a foreign adoptive parent. in-country adoption implies
that any But on the other hand it has reduced the
ons. The first assumption is that a familiar cultural and social milieu is
most appro- priate. But the truth is that this is a theo- retical principle
that cannot be translated into practice. First, this approach would no
doubt have worked had it been situated in a scientific arena but since
it operates
on a human landscape, only an approach that is more person attuned
would have some chance of succeeding. For instance there exists no
cut and dried formula to determineconclusively allthefactorsthat
constitute social and cultural milieu. Sec- ondly, the presumption that
in-country adoption would help the child preserve its biological social
and cultural practices is a fallacy in the light of the diversity that exists
in India. In fact in-country adoption would offer just as much of an
exposure to an 'alien' social and cultural practices asanintercountryadoption.Thirdly,even if we were to believe that this so-called
social and cultural milieu is best, the
practicalproblem of how we would de- termine the same for destitute
and abandoned children would be insurmount- able. Does that mean that since
the Lambadas have their own unique, indig- enous culture we would
not place such a child into another culture such as the one that any
'mainstream' persons like an average city urbanor ruralresident would
constitute?
Based on this incorrect assumption, the
policy to facilitate in-country adoption while regulatingintercountryadoptionhas been arrived at. This distinction is not

merely one of semantics, but is very real because though the latter is
not prohibited
it is discouraged at every stage with the aidof
thelegitimatestatemachinery.Third, this conscious, deliberate
promotion of one form of adoption also leads to a further
order of prioritisation.
It would only seem fit and proper that
the welfare of children is the first principle ornonnegotiablefoundationonwhichthe entire adoption process must be
based. A decision to grant preference to one form
of adoption as a policy choice ought to furtherthemainobjective which
is welfare ofthechildren.Butperhapshadtheguide- lines been
constructed, better this conflict could have been avoided. On the other
handitdoes statethatthewelfareof children requires that private
adoptions by unauthorised individuals, agencies and
institutionsshouldbediscouragedandthat
ground norm of ensuring welfare of the
childrentoamerefootnotewhilethepolicy
choice of preference to in-country adop- tion has attainedthe status of
a paramount
principle and the entire adoption machin- ery of the state facilitates
this.
potential problem or threatto the adopted child will either crop up
within the time- period of three years or not at all. No attempt is made
to undermine the fact that vulnerability of children maybe amplified by
factors like foreign environment, lan- guage, access to enforcement
agencies and neither is it our suggestion to do away with follow-up
procedures but it is simply to
3892
EconomicandPoliticalWeekly September21, 2002
This content downloaded from 14.139.214.181 on Sat, 26 Dec 2015
06:03:49 UTC All use subject to JSTOR Terms and Conditions
Thus though the guidelines expressly
state that, "generally, in all matters concerningadoptionwhetherwithinthecounaskwhyisitthatthatkindofprotection try or abroad, the welfare and
interest of and care is not being extended to in-counthechildshallbeparamount"inrealitythe
tryadoptions.Butsincetheproceduresare
promotion of in-country adoption (the preferential principle) has
attained such
overriding importance that the.welfare of the child has not merely
taken a back-seat
but does not even form a part of the rele- vant considerations.
This preferentialprinciple has acquired such a primacy that
throughoutthe guide- linesateverystageandbyeveryauthority the

differentia are emphasised and furthered.Forinstancethefunctionsdelegated to CARA engender and foster

the belief
that if the nationality of prospective adop- tive parents is Indian then
the child necessarilywillalsobehappy,safeandsecure
and therefore regulation is unnecessary and a mere formality. Whereas
in stark
contrast inter-country adoption does not merely increase the chance of
an unsuccessful adoption but malafide motives have to be compulsorily
attributedsuch that it should not be merely policed but dis- couraged at
every turn. CARA performs some common functions for both kinds of
adoptions such as acting as an information centre at the pre-adoption stage but whereas in the postadoption scenario it continues to keep track of only intercountry adoptions.
Besides, regulatinginter-countryadop- tion, CARA also has the
mandateto liaison with Indiandiplomatic missions abroadto prevent
'neglect; maltreatmentexploita- tion or abuse and to maintain an
unobtru- sive watch over welfare and progress of such children'. In the
case of in-country
adoption the post-adoption follow-up re- quirement is that the agency
should main- tain contact with the.family only for a periodof
threeyears.Thepurposeof this in the case of both kinds of adoption is
the same - to ensure that the child is well taken care of and not
mistreated. That being the case there is no rationale in the differentia
in follow-up and is rational only if it is equally truethatexploitation
motivated by an inherent distrust of intercountry adoption instead of furtheringthe welfare of children they
prove counterproductive.
Furtherit is not the need for procedural
safeguards that is being disputed, but only the differentia in procedure,
which evidently is not justified. A modicum of proceduraldifferences would be
under- standable as a move from one eountry to another entails more
formalities, but what cannot be condoned and is unacceptable
is that for in-country adoption the proce- dure is so easy that there
exists a very real
fearthatsafeguardsaredangerouslymini- mal. There is no attempt made
to either
promote inter-country adoptions or even to relax procedural
safeguards. The existing procedural safeguards ought to be extended to all adoptions per
se. The

procedure for inter-country adoption as laid down by the Supreme

Court has several features that could easily be a part of
the in-country adoption process as they would help improve the
process, for ex- ample, the inclusion of the comprehensive home study report (includes social, financial, emotional
environment, infrastructuraflacilities thatthechild would have access
to). But it must always be borne in mind that this constituency is
particularlyvulnerable and that the forms of adoption exist for the sake
of the child and therefore both have to be scrutinised
thoroughly.
Two further conditions have been imposed. First, it is mandatory that 50 per cent of the total adoptions of
any
recognised Indianplacement agency have tobe.byIndianfamilies.
Therequirement of 50 per cent evidently bears no relation to the
avowed aim of ensuring the child welfare and this can be easily
established with the help of the following hypotheti- cal situation. 'A' is
a recognised place- ment agency with 100 children. Fourty

children have already been adopted by adopted children but even the
most stead- Indians. The remaining 60 with foreign- fast of opponents
of inter-country adopbetween prevention ofcommercialisation
and facilitating adoption could be achieved.
Yet another worrisome arena is the interface between the guidelines
and chil- dren with special needs. Since these chil- dren are doubly
vulnerable coupled with thesuspicious approachthatis reservedfor
inter-country adoption one would expect
an amplified reluctance to authorise intercountryadoptionforthesechildren.Therefore,it is not merely inexplicable but rather
worrisomeforproceduralsafeguardsseem
entitlements that are reserved to 'normal,
healthy' children. In the case of the children with special needs as, a no-objection
certificate is granted in a week and only
inexceptionalcircumstancesrefused.Thus
the weightage the state attaches to 'sociocultural' milieu is only a matter of convenience and it is guilty of discriminating
against a 'special needs' child as though
she is not eligible for equal protection underthe laws. The claim of
bettermedical

facilities dictating this decision rings hollow because were that to be

true there would then have been an attempt to first exhaust options
within the country. There- fore it is apparentfrom the decisions and
choices madethatpersonhoodis recognised to the extent of
contributionto the production process.
It is thus believed that an attempt to
focus solely on the actors of the AP adoption scandal will be to reduce the issue to
one of vindication of either side. Whereas
it is in reality an indicator of the urgency
with which the norms of the adoption
process have to be reconstructed. The
problem is that whenever we undertake
any changes in the law we approachit like
a domestic problem. We believe in calling
a specialist whereas the legal system cannot be treated quite like that. It is rather
more like a machine - the parts are
interlinked and therefore while the effect
of the problem maybe apparent in one place the problem itself is
located elsewhere. This controversy is proof of the existence of a deep-rooted
malaise that. cannot be cured by a mere sectoral, uni- dimensional
approach.A broad,workable approachcan only be attained when it has
been evolved as a result of a consensus between the actors the state
or the NGOs or private individuals and the affected. What is needed is
a paradigm shift in attitudes as a result of which the children
themselves are brought from the fringes of the process to become
arbitersof their
ers. Under normal circumstances all 100 would be adopted. Owing to
the mandatory requirement of 50 per cent only 40 morechildrenwould findhomes
while the remaining 20 would have to remain in the centres. Thus in
practice, the foundational principle of CARA thatfamilial surround- ings
arepreferableto adoption centres and homes, is conveniently
abandoned. Though the government may have made the decision to
promote in-country adop- tions with good intentions nevertheless this
promotion has resulted in not only not furtheringthe primaryobjective
of facili- tating adoptions, but has led to the anoma- lous situation of
hindering and reducing the same.
Second, the government has prescribed an order of preference in
determining adoptive parents which have to be followed by the placement agency. Indian families in India, Indian families
abroad,

one parent of Indian origin abroad, both parents being foreigners in

that order are
the best adoptive parents.This is evidently based on the premise that
similar social, cultural milieu is best for the welfare of the child. But in
reality the message con- veyed is thatgreaterthe 'Indianness' in a
person's genetic make-up, the better the person will be as a parent to
an Indian child.
Misplaced Objectives
It is not that the objective of welfare is being criticised but that it will
not be achieved by the manner in which the
government is currently pursuing it. The state is labouring under the
carefully constructed illusion that the only method by which welfare
can be achieved is by placing the child in its own socio-cultural milieu.
The ground norm of welfare of child has been replaced by this
construct called socio-cultural milieu. What we seek
tion cannot deny the existence of such a
wide gap that inter-countryadoption can- not be done away with.
Furtherthere also exists a difference in
the recovery of costs between in-country
and inter-country adoption. The basic condition that the agencies must
under- take adoption on a no-profit basis is itself sufficient. The words
used in the guide- lines with reference to the degree of per- missible
flow of money for adoption are 'recovery' and 'reimbursement'which
can
only mean making good or indemnifying a person for the expenditure
incurred. Therefore by the choice of language any
potential profit-makinghas been expressly excluded and prohibited.
Since the purpose is to ensure that there is no trafficking in children or making adoption a money-spinner it would be
assumed that
at least in this respect in-country and inter- country adoption would be
treated on the same footing but here there exists a dif- ference. In the
case of in-country adop- tions the extent to which all costs and
expenses arereimbursedis a discretionary power vested with the court
whereas in
the case of inter-country adoption the discretion of the court is fettered
by the ceiling limits of a total of Rs 10, 000 and Rs 100 per day towards
maintenance and medical costs. The only authority which can raise this
limit is the Supreme Court. The objective of ensuring that
commercialisation of adoption does not occur in the guise of adoption
is not fulfilled by mere fixation of a ceiling that
is applicable solely to inter-countryadop- tions. In fact there exists no
peculiar aspects to inter-countryadoption that would justify the fixation of an
upperlimit. There also exists no nexus between the fixation of an upper

limit solely for this category and commercial exploitation of adoption. It

is irrational to state that the expertise of courts is restricted to
preventing profi- teering in the case of in-country but not inter-country
adoptions. Also, as per CARA guidelines, the accounts of all agencies is
subject to the audit by CARA, they misuse of the provision of
reimburse- ment can be prevented. If adoptions are being
undertakenfor monetary profits the mere fixation of an upper limit will
not
is a re-prioritsation whereby the ground
normremainsthe welfare if the child which
in some cases can best be achieved by
placing the child in its own culturalmilieu.
Depending upon what is best for the child
the choice between inter and/or in-country
adoptions ought to be exercised. Further
the practical reality is that inter-country
adoptionscannotbe done away with. There
may be a debate over the identification of
socio-economic factors that have resulted
in the marked difference between the
numberof Indianprospective parentsand country adoption, a better
balance own destiny. [171
prevent the same. If fixation of an upper limit was not done in such
arbitraryand unjustified fashion but left to the dis- cretion of the courts
as in the case of inEconomicandPoliticalWeekly Seltember21, 2002 3893
This content downloaded from 14.139.214.181 on Sat, 26 Dec 2015
06:03:49 UTC All use subject to JSTOR Terms and Conditions