CHILD WITH A NAME WITHOUT A LAW – ISSUES IN INTER-COUNTRY ADOPTION
Updated: May 19
Author: Shrey Sahai, II Year of B.A.,LL.B from Christ Lavasa , Pune
Adoption is essentially a practice of awarding a second chance to the child who has a right to be nurtured in the care and protection of a family. Not every child is fortunate enough to be looked after and socialised by his birth parents, and in these cases, their deprivation and suffering can come to close with the system of adoption. While delving into the realm of Inter Country Adoption – ICA , one thing which needs to be kept in mind that a child deserves the protection of a proper legal framework in the very same way that it deserves a name to be identified by. On the other hand adoption works as a miracle for those couples or persons who deserve to get a chance to being parents and cherishing the love of parenting a child. This awarding of a second chance towards a happy and normal life in itself entails many challenges for the child and the respective legal framework where the process is facilitated, hence there are laws, and in case of the international scenario, we find treaties and conventions, but how far do they substantiate in the contemporary world remains a matter of concern and research.
“Every child has the right to be treated with love and to grow up with love and affection and to have moral and material security and this can only happen if the child is raised in a family. The most cohesive situation, in fact, could be in the family of his natural parents. But if for any reason it is not possible for the biological parents or other close relative to take care of the child or it may not be possible to follow the parents who are willing to take care of the child, the next best thing would be to get adoptive parents so that the child grows up in loving care and attention . ” The practice of international adoption occurs mainly as a humane response to the plight of war orphans and abandoned children of soldiers in World War II, the Korean War and the Vietnam War. Today, the major host countries are the United States, Canada and the developed countries of Western Europe. Factors such as the declining fertility rate associated with a fragile marriage, the limited success rate and the high cost of reproductive health care and the lack of access to home adoption have made foreign adoption one of the most childless couples in developing countries.
However, in their home countries or exporting countries, extreme poverty, lack of contraception and social attitudes towards illegal births are three major factors leading to the abandonment of children in institutions. The idea of a "male" child also leads to the abandonment of a girl child which is bad for our country.
1) To analysis the different problems related with inter-country adoption, and the magnificent role played by judiciary.
As much as the process of inter-country adoption be visualised as a landmark improvement in granting families to needy children cutting across socio political and cultural barriers, the same can turn negative with the cultural constraints and racial issues involved. It has been witnessed previously how in United States, their arose a debate around ICWA – Indian Child Welfare Act of 1978 that aimed at providing families of similar race and culture to the children being adopted. This had been challenged in the face of the new legislation – Multi Ethnic Placement Act – MEPA in 1994 that stopped the state from making such partial considerations.
The question of transracial adoption still looms big – adoption by Caucasian families of African American children or even Asian children, and hence the policy makers face this big question on how to combat it. As per reports .The adopted children in cross cultural and racial families face the burden of racial discrimination in the new country and family of residence.
Department of Economic and Social Affairs, United Nations report 2006 throw light on the dangerous racial violence committed in Australia and New Zealand on the Maori indigenous population , that had led many to doubt the transracial adoptions in general.
Racial stereotypes and discriminatory attitudes are still rampant and pervasive in the society , so the transracial kids do fall prey to them , but it ultimately depends on the mindset and openness of the adopting family to make the life happier for the adopted kid.
Threats to the child
A poignant contrast to the heart warming notions of cultural unity and benevolence associated with inter-country adoptions and children being the gifts of god stand the less imagined evils of the same. Numerous scandals, sex trade, trafficking of innocent children – these shadowy tales persist with the practice to this day. The apparent simplicity in the exercise of putting one child from the protection and legal framework of one country to another involves a big leap within and that is the juncture of lawlessness where the child is left to suffer as an innocent victim , a prey to a practice ironically aimed at his own welfare. Politically, the scandals reveal the manner in which different interest groups within sending and receiving countries employ their varying capacities for political mobilisation.
According to a report by UNICEF a clandestine market had grown up in 1994 that largely dealt with inter-country adoptions and in the garb of which commercial trade of innocent lives were being carried on for the purposes of child trafficking. Such markets are not isolated incidents or occurrences, but rather they slip out of reporting agencies and often make the best opportunity in the existing lapses of legal frameworks.
Some prominent issues which have come up as a result of an extensive survey, compiled in an UNICEF report are as follows –
Releasing of more children from the country that gives adoption by manipulating the various levels of bureaucratic intervention involved, identifying sensitive and vulnerable mothers and persuading them to give up their children in the light of free pre and post natal care, exchange of the child for monetary good and financial benefits. One such racket had been busted in the year 1992 in Albania. Often coercing women to conceive and then provide the child for inter country adoption so that the child can be sold away. There are other issues like forging documents and providing false identification to take the child and sell in the rackets. There are rush and hurry to adopt and hence essential formalities may be skipped with false and misleading information, and taking a child through third country which involves flouting of migration norms and illegal trafficking as well.
All these invariable jeopardise “child’s best interests’ which has been the driving force of inter-country adoptions. One of the worst case scenarios are when the child loses his identity. Owing to a wrong adoption process or involvement in illegal trafficking, the basic history, family of origin and vital details of the child are lost forever. This leads to an indiscernible domicile of origin, and further effects acquiring of nationality and citizenship status by these children. These children are left to suffer without a law to regulate or protect them. They become issues of conflict, sore in the society as they are rejected by all. The leap of faith with adoption fails miserably when false information is supplied to families who adopt the children. Often children with disabilities or HIV affected children are given away in adoption without making full and proper medical history disclosures. The adoptive parents desert them due to lack of counselling and with complains of misrepresentation and ultimately it's the child that is left to suffer in an alien country.
High Risk Areas
Legislations provide for the soundest base in securing safe adoptions, but the problem arises when more than one country is involved in the process and the jurisdiction is at conflict as to which law to be accepted and followed. The biggest threat however is posed to the children whose births are not officially registered as they can be illegally traded even without their legal existence being proved in any country. They may exist as persons but they are nonexistent in the eyes of law. Next comes the scrutiny of the process of adoption and a careful scanning of every stage by the administrative and the judicial bodies that are empowered in this matter. One of the biggest risks posed here is that due to these institutions lacking expertise or dedicated staff in the matters of adoption, the scrutiny gets reduced to a simple mechanical process of giving signatures of approval upon pending requests.
The biggest threat as identified through years of data collection by different reports on this topic seems to be Private Adoptions. Although adoptions through accredited agencies are not always abuse – free, but the sector that has been most affected is the private adoption mechanisms in countries. It has been observed that the hefty procedures involved in adoption through national and state sponsored mechanisms make parents often take the private route whereby consenting families engage in child adoption .Subsequently not only does the gates open up for increasing frauds in adoption, but the safety and security of the child is neglected who loses a family and a nationality together to land in a lawless state. Poverty and the need for money are often the driving factors for crime , but these also result in increasing adoptions where children from the developing countries are given away in adoption to the families of developed nations in the hope of financial gains as held by Herrmann (2010). Such adoption rackets work in different war stricken, emergency , disaster affected areas and also in alums where the dire need for money drives criminal intentions, in separating children illegally from their parents and then processing them through adoptions overseas, ultimately making financial gains out of them. (Smolin, 2005, 2006).
This particular area of child laundering had become the main focus of the Hague Conference on Private International Law, 2010 –
It was discussed how poor procedural safeguards and lack of policies and monitoring by the countries have led to such incidents pass unnoticed through the system and has led to dangerous consequences for the child.
With such criticisms coming to the fore, Young (2012) had commented that inter-country adoptions simple gives rise to commercialisation and profits serving the interests of the western couples in starting new families with children of their choice which they adopt, even snubbed it as –the ultimate form of Imperialism. This entirely questions but one thing that whether at all the best interests of the child are rightly being served by the said system of adoption.
The Hurdles in Place
It has been recognised that the political instruments developed as in the treaties, bilateral, multilateral agreements available in this issue, places too much emphasis on the political implementing will of the countries. The legislations are subject to the desires of competent authorities enacting the schemes without any uniform international order on the same as opined by Masson (2001). The question of existing lacunae was noted by Lovelock (2000) where he summarised –Reasonable compensation, non profit objectives an adaptability are left undefined in the Hague Convention that work as loopholes to exploit the due process of law. Further there is the problem of the non signatories to The Hague Convention, making the state of absence of safeguarding laws even more complicated. Bartholet (1993) had criticised that the convention uses excessive bureaucratisation and will ironically increase the impediments of children being placed in the adoptive families- a fear that will lead many to take the private adoption routes.
Hence Governments need to recognise the growing need for harmonisation, inter country arrangements and mutual ties towards securing the future of children sans considerations of nationality and realising the ever growing reality of inter country adoption.
Scandals and Malices
Money plays an important role in shaping the state of affairs in criminal activities that are centred on adoption policies, and poverty stricken families often pave a way out to abuse the legal process.
The combination of a system where permissions/approvals are commonly based on money or personal connections, with a large monetary incentive toward foreign adoptions, can lead to a systematically corrupt adoption system. Money is used to procure approvals and false paperwork in questionable cases, not merely to speed proper approvals. And within such a system, it can become virtually impossible to tell which adoptions were legitimate, and which were not, as the system may operate in largely the same way for both. Both involve the use of personal connections or bribery for approvals, and both involve disproportionately large monetary incentives toward inter country adoption.
The story of the adoption scandals of Andhra is tied up to opening of mysterious institutions with shady overtones and ultimately resulting in other shocking discoveries. The suspicions centred around an orphanage called Action for Social Development (“ASD”), run by Sanjeeva Rao. Prospective adoptive parents generally responded by continuing to seek the adoption and emigration of “their children.”Eventually the adopted children were granted visas by United States and many others were shifted to other orphanages as well.Next Lambada tribal children were also pulled into this trade with alluring monetary support and the entire scandal came to the fore with two women acting as scouts in buying these tribal children. Ultimately the racket was busted an the children were rescued but most of them were badly affected and some died as well.
This remains one of the worst post adoption concerns of the process whereby the adoptive parents may re-home the child or settle the adopted child with another family. Re-homing perseveres despite ethical quandaries due to the imminent need for post-adoption support for adoptive parents. Most agencies provide little to no support after the adoption process has been finalised, despite the difficulties that many families have in acclimating to the change. Reuters found that 70% of the children being re-homed were of international origin, and many of those children had behavioural problems indicative of some form of trauma or disability. Such practices are carried out privately and often without any information being given to the state agencies and hence the follow up processes become all the more complicated.
Private Adoptions vis a vis State arranged Adoptions
The present system places too much emphasis on the statist agencies to evaluate and supervise the entire process, hence many prospective adoptive parents take the other way around and indulge in private adoption practices. Here we find the menace of haste among the parents to adopt and often results in missing out or false presentations, bribery of the organisational checks involved in the process.
The Hague Convention forbids anyone from deriving “improper financial gain or other gain” from inter country adoption,69 limits payments to costs, expenses, and “reasonable professional fees,”while forbidding “directors, administrators and employees of bodies involved in adoption” from receiving “remuneration which is unreasonably high in relation to services rendered. But the problem lies in the fact that such activities are yet to be formulated into some comprehensive criminal code , and most of it is still advisory in nature that puts the children at severe risk.
Judicial Approach Regarding Inter Country Adoption
In the absence of international adoption law, the provision of the Guardians and Wards Act 1890 applies where a foreigner seeks to adopt an orphaned child in the District Court, appointing him or her as a guardian of the child, with the permission of the Foreign Child Court . Moreover, the court was more satisfied for the welfare of the minor than the orders given by the court to appoint a guardian. Subsequently, the Gujarat High Court formulated guidelines on the issue of international adoption, which the Court found to be vague and ambiguous.
In the case of Rasiklal Chagan Lal Mehta, the High Court said that if the court is to decide the adoption case satisfactorily, the court should issue a notice to the Social Welfare Council of India and look towards the Indian Council of Assistance. If the social welfare does not appear, or for some reason is unable to provide assistance, the court will issue a notice to an independent, prestigious and publicly recognised social organisation and welfare organisation operating in the area or area requesting assistance. However, the purpose of giving notice to the Indian Council to the Welfare Council of India or any other independent name and publicly or officially recognised social welfare body is to see that the application of a foreign parent for child custody is finalised . To receive from A panel of experts with experience in the field of child welfare has properly and carefully examined and evaluated, with the intention of assessing the court to come to the conclusion that the minor's interest was primarily taken into account. A minor who is praying for leave to deport a foreigner and who wants to be appointed as guardian to the minor.
Foreign countries must apply for this purpose in the form prescribed by the Guardians and Wards Act, attaching three copies of the minor's passport size photograph, attested by the minor in custody at the time. If the court is satisfied that there is no basis to proceed with the application, it shall fix a date for the hearing and, in the manner prescribed by the person, to resolve the notice of application and the date of the hearing.
Section 11 of the Guardians and Wards Act 1890 and informs the general public and the Secretary of the Child Welfare Board of India that their representation is being considered. Every person appointed as a guardian of a minor must execute a jurisprudence with or without a bond, as the court may deem fit to teach and as the court may determine and determine its production in relation to the welfare of the child. If and when a court is required. When the court orders the appointment of a foreign guardian of an Indian minor, the court will sign a copy of the minor's photograph and issue it to the court-appointed guardian, with a certificate of custody. Big again question came in front of Bombay High court about the monetary help of child welfare agency working for the welfare of the child.
In re Giovanni Marco Muzzy , in which the Judge, observed that the practice of social or child welfare agencies and individual going to different states for the purpose of collecting children for being given in inter-country adoption is likely to lead into considerable abuse, because it is possible that such child welfare agency or individual may by offering monetary inducement persuade indigent parents to part with their children to foreigner in adoption by demanding a higher price which the foreigner in their anxiety to secure a child for adoption may be willing to pay.
Justice Bhagwati agreed with the observation and added that there should be no objection if a child is relinquished by its biological father or a destitute or abandoned child in its parent state and is taken to another state, even if the objective is to give the said child in adoption, provided there are sufficient safeguard to ensure that such social or child welfare agencies does not indulge in any malpractice in administering their obligation or duty. Despite all these different cases of the High courts, the picture of the inter-country adoption laws was still unclear because they are still being grossly misused by the wrong doer. So, the Supreme Court of India in L. K Pandey’s case stated that inter-country adoption in India should be regulated and supervised by the principles, norms and procedure laid down by Supreme Court in Laxmikant Pandey v. Union of India wherein the purpose of the inter-country adoption was stated as; the means to rehabilitate abandoned children. This judgment further banned inter-country adoption by individual and private agenciesIn the year 1985, the supreme court of India in landmark judgement of Lakshmikant Pandey v. Union of India, laid down that few principle governing the rule for inter-country adoption was instituted on the basis of latter addressed by the lawyer to the court, when the Petitioner alleged that social organisation agencies engages in the work of offering Indian children to foreign parents without due process and that is regarded as malpractices.
The petitioner further submitted that these adopted child were not only exposed to long horrendous journey to distant foreign countries but also put their lives at risk, at times, it ultimately result the said child or children into prostitution and beggar. The petitioner sought relief by restraining Indian based private agencies from carrying out further activities of routing children and also directing the government of India, the Indian council of child welfare and the Indian council of social welfare to carry out these obligations.
The court realising the socio-legal vacuum and importance to formulate safeguard, laid down the principle and norms for inter-country adoption. That led the Court to the consideration of the draft of the children‘s bill 1972 and 1980 which had failed to become an act of parliament. The hon’ble bench was influenced by different draft and declaration such as the UN declaration on right of child 1959, draft prepared in 1978 by an expert group under the aegis of the UN draft guideline of procedure concerning inter-country adoption formulated at the international of social welfare regional conference of Asia and western pacific held in Bombay in 1981 and approved by the workshop on inter-country adoption held in Brixton UK in 1984 and also the national policy on children 1974. In this enterprise, the court was assisted by various social and child welfare organisation , acting as interveners, prominently Indian council of social welfare so Supreme Court in this case expressed its opinion and framed certain rules for inter-country adoption.
Issues With Inter Country Adoption
Opponents of international adoption also focus on the best interests of children and larger community issues. With regard to children, they argue that children are best served by living in their local community, where they can enjoy their racial, ethnic and national heritage and that they are at risk when placed with conflicting adoptive parents abroad. There are a lot of issues related to inter-country adopted country or adopted country. In favour of international adoption, they focus on the best interests of children in need of housing on the one hand, and larger community issues on the other. Advocates of international adoption have argued that opponents' claims are based on excessive romanticism, with no evidence available and supported by common sense. These are issues that need to be considered in relation to international adoption.
1. Identifying children for adoption: Identifying and finding children who are not truly cared for by their parents: It is very difficult to identify children who have a real sense of belonging in their family or who do not have such a family to look after or find a family at home
2. Regularly inspecting countries: examining the role of different countries and private Responding with critics on international adoption by adopting laws that eliminate adoption and different countries are always on international adoption. Respond to the laws.
To evaluate the role of policy makers: The role of policy makers in sending and receiving both countries needs to facilitate the adoption process so that it can meet the needs of adopters, but they fail to do so. However, policy makers need this type of adoption reform effort designed to address child procurement and abduction issues in the international adoption world. Can not be adopted and for their birth parents. International adoptees argue that it can never give a home to all the children in need, and that it is right to argue that we must solve the problems of poverty and injustice, resulting in the release of a large number of children in the world's poorest countries.
International agreements had been advanced to cope with the changing face of adoption. The standards and safeguards they establish are essentially directed toward ensuring four things: That the adoptability of youngsters is always decided inside the right way that inter-country adoption is taken into consideration and completed for the right reasons.That every baby is adopted by using the proper character(s). That the adoption is completed inside the proper manner.
Inter-country or transnational adoption may additionally grow to be the satisfactory option for orphan children to start a sparkling existence in a new country . But when the dwelling house for these children does not have any right law to expose them violation of children rights could be a whole lot specific to take vicinity. The authorities need to ensure thorough checks of each adoption agency to make sure that they are protecting the child’s rights as has been provided within the charter and the juvenile justice care act, 2006.
It is а соmmоn situаtiоn in Indiа thаt the judges deаling with аdорtiоn саses, esрeсiаlly in smаll tоwns аnd сities in Indiа, аre nоt рredоminаntly асquаinted with the interрretаtiоn оf the inter-соuntry аdорtiоn guidelines. Henсe, in this regаrd, а unifоrm but stringent рrосedure must be develорed whiсh саn be eаsily fоllоwed аnd оbserved keeрing in regаrd thehumаn sрirit. Аs hаs been seen, Соurts, thоugh slоwly аnd steаdily, аre аррrоасhing every роssible dimensiоn оf this issue аnd аre lаying dоwn nоrms fоr eliminаting аny legаl оr emоtiоnаl hаvос fоr the сhild оr his biоlоgiсаl аnd аdорtive раrents.
Unless аgenсies systemаtiсаlly refuse tо орerаte in the frаmewоrk оf systems thаt аre in сleаr viоlаtiоn оf internаtiоnаl nоrms, they mаy find themselves соmрliсit in аbuses. If рrоsрeсtive аdорters dо nоt reсeive ассurаte аnd disраssiоnаte infоrmаtiоn оn inter-соuntry аdорtiоn needs, they will nоt be аble tо аdjust their рlаns аnd exрeсtаtiоns ассоrdingly. Thus, eасh асtоr in the рrосess саrries а раrtiсulаr resроnsibility, аnd аll need tо, аnd must, seek соорerаtiоn with оne аnоther tо mаximise the imрасt оf their effоrts .