International Journal of Law

www.lawjournals.org
ISSN: 2455-2194
Received: 22-01-2024, Accepted: 14-02-2024, Published: 08-03-2024
Volume 10, Issue 2, 2024, Page No. 23-26

Revitalizing adoption laws in India: A path to equity and progress

R A Katta
Advocate, Department of Law and Litigation, Rajasthan High Court, Rajasthan, India

Abstract
This comprehensive research delves into India's adoption laws, spotlighting critical challenges and advocating for substantial
reforms. Covering the current state of regulations, in-country and international adoption processes, legal eligibility criteria, and
the need for uniformity, the study explores the complex landscape. Major challenges include a prolonged adoption process,
illegal practices, child returns, and biases against disabilities. Proposed reforms prioritize children, strengthen laws, establish
post-adoption services, raise awareness, and simplify processes. The call for a uniform civil code for adoption laws
underscores the need for consistency. The study concludes by emphasizing the imperative nature of reforms to ensure the
welfare of working children and the efficiency of adoption practices.

Keywords: Adoption laws, Indian regulations, challenges, reforms, uniform civil code, working children, legal eligibility,
inclusivity, awareness, adoption processes

Introduction Hindu Adoptions and Maintenance Act permit adoption

Adoption laws in India play a crucial role in ensuring the within specific communities, the JJ Act offers a broader,
well-being and protection of children who are in need of religion-neutral approach catering to all prospective parents
permanent homes. However, there is a need for significant and adoptable children.
changes and reforms in these laws to better address the The JJ Act encompasses various scenarios, addressing the
current challenges and ensure a smooth adoption process. needs of both "children in conflict with the law" and
"Working as laborers, children are deprived of their "children in need of care and protection." The latter category
childhood, their dignity, growth, and physical and mental includes adoptable children. The Act defines adoption as a
well-being. According to the Census of 2011, there are 4.35 permanent process where the adopted child severs ties with
million working children between the age of 5-14 in India". their biological family and becomes a legal child of the
These statistics highlight the urgent need for reforms in adoptive parents, enjoying all associated rights and
adoption laws to provide these working children with a responsibilities.
chance at a better life through adoption. The current Adoption procedures are meticulously outlined, covering
adoption laws in India need to be revised and updated to both domestic and international placements. District Child
address the issues faced by working children, who are Welfare Committees (CWCs) play a crucial role in
deprived of their childhood, education, and basic rights. declaring children legally free for adoption after thorough
Additionally, there is a need for a more efficient and inquiries. Prospective adoptive parents (PAPs) approach
streamlined adoption process in India. This would ensure Specialized Adoption Agencies (SAAs) who conduct home
that children in need of adoption can find loving and studies to assess their suitability. If deemed eligible, they are
nurturing families more quickly, reducing the time they matched with a suitable child based on child study and
spend in institutional care. Furthermore, the adoption laws medical reports.
should also focus on promoting and facilitating adoption by Following acceptance by the PAPs, the SAA places the
single parents, LGBTQ+ individuals and couples, and non- child in pre-adoption foster care before seeking an adoption
resident Indians.
order from the District Magistrate. This order is granted
only upon ensuring the child's welfare, considering their
The Current State of Indian Adoption Regulations
wishes (if age-appropriate), and verifying the absence of any
The legal framework governing the process of adopting a
child in India comprises several legislations delineating financial inducement involved [4].
rules and regulations. These statutes include:
▪ Hindu Adoption and Maintenance Act, 1956 [1] Other statutes
▪ Juvenile Justice (Care & Protection of Children) Act, India's adoption landscape comprises two primary statutes:
2015 [2] the Hindu Adoption and Maintenance Act (HAMA) of 1956
[5]
▪ Model JJ Rules, 2016. and the Guardians and Wards Act (GAWA) of 1890 [6].
▪ Adoption Regulations, 2017 Each caters to distinct religious communities and offers
▪ Guardianship and Wards Act, 1890 (GAWA) [3] varying legal nuances [7].
For Hindus, Jainas, Buddhists, and Sikhs, HAMA governs
Secular Adoption in India adoption. It facilitates irrevocable adoption, granting the
India's legal framework for adoption operates on a secular adopted child full legal status akin to a biological child,
principle, governed primarily by the Juvenile Justice (Care including inheritance rights. However, restrictions exist to
and Protection of Children) Act, 2015 (JJ Act), along with prevent same-sex adoptions if the family already has a child
its associated regulations. While personal laws like the of that sex.

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Individuals belonging to other religious communities, such Convention signatory country approach the Authorised
as Christians, Muslims, Parsis, and Jews, rely on GAWA for Foreign Adoption Agency or Central Authority. In the
child custody. This act establishes a guardian-ward absence of such offices, government departments or
relationship, which lacks the comprehensive legal standing Indian diplomatic missions can be contacted.
and inheritance rights associated with HAMA adoptions. 2. Application for the preparation of a Home Study Report
Upon reaching adulthood (21 years), the ward gains and registration under the Child Adoption Resource
independence and lacks automatic inheritance rights, Information and Guidance System is submitted, along
requiring adoptive parents to bequeath assets through a will, with required documents.
potentially vulnerable to contestation. 3. After evaluating the eligibility and suitability of
Until recently, a codified law addressing the adoption of adoptive parents, the application is forwarded to the
orphans, abandoned, and surrendered children was absent. Specialised Adoption Agency, where legally free
This lacuna led to inconsistencies and ambiguities regarding children are available for adoption.
their custody, guardianship, and adoption, often 4. Profiles of two shortlisted children, matching adoptive
disadvantaging these children. parents' preferences, are forwarded to the relevant
Recent developments aim to address these shortcomings. authority through which the application was submitted.
The Juvenile Justice (Care and Protection of Children) Act, The profiles are then sent to the adoptive parents
2015 [8], and the Adoption Regulations, 2017, now provide a according to local laws.
streamlined framework for adopting these children, ensuring 5. Prospective parents must reserve one of the profiles
their well-being and legal rights. within 96 hours to avoid withdrawal. If reserved,
adoptive parents sign the Child Study Report and
In-Country Adoption Process in India: A Step-by-Step Medical Examination Report within 30 days, with an
Guide option to request a visit.
The child must be orphaned, abandoned, or surrendered, and 6. Acceptance of a reserved child must occur within 30
must be legally free for adoption. days through relevant authorities. Failure to do so
1. Prospective adoptive parents are required to register results in withdrawal, allowing the profile to be
online for child adoption in the Child Adoption reconsidered if the Home Study Report remains valid.
Resource Information and Guidance System 7. Continuing the adoption process, the Home Study
(CARINGS) in India, submitting the necessary Report is notarized, apostilled by the competent
documents. authority, and obtains a No-Objection Certificate
2. Children's profiles are shared with prospective parents (NOC) from relevant authorities, along with a letter of
based on their preferences, and the chosen profile must approval from authorities in the receiving country.
be reserved within 48 hours. 8. While awaiting court orders, the child may be placed in
3. Adoptive parents in India need to approach the re-adoption foster care in India temporarily after
Specialised Adoption Agency (SAA), which files an receiving the NOC.
application before the court of jurisdiction. 9. Upon the issuance of an adoption order from the
4. The court verifies that the adoption aligns with Section competent court, the child receives a passport and
60 of the Juvenile Justice (Care and Protection of VISA, finalizing the custody transfer to the adoptive
Children) Act (JJ Act). parents.
5. As the adoption process in India is non-adversarial,
there is no opposing party to contest during the Legal Eligibility Criteria for Adoption in India
arguments of the Specialised Adoption Agency in the The current eligibility criteria for prospective adoptive
court of law. parents (PAPs) in India are delineated in Section 57 of the
6. SAA receives a certified copy of the adoption order Juvenile Justice (Care and Protection of Children) Act, 2015
from the court and forwards it to the adoptive parents. (JJ Act) [9], and Regulation 5 of the Adoption Regulations,
7. SAA then applies to the authorities for issuing birth 2022. However, recent discussions have emerged around
certificates containing the names of the adoptive these criteria, highlighting potential limitations.
parents and the date of birth as per adoption records. In June 2022, a circular issued by the Central Adoption
8. The child is officially adopted by the prospective Resource Authority (CARA) has drawn attention and debate
parents. The authorities prepare follow-up reports on a by prohibiting single PAPs engaged in live-in relationships
six-monthly basis for two years, and any relocation of from adopting. This decision, referencing Regulation 5(3) of
adoptive parents during this period needs to be the 2017 Adoption Regulations, mandates a minimum stable
conveyed to the authorities. marital relationship of two years for couples seeking
adoption, rendering non-marital partnerships ineligible, a
Legal Procedures for Adoption in India by matter of contention for some stakeholders.
NRI/OCI/Foreign Nationals Additionally, the 2022 Regulations introduce restrictions
Adopting a child in India as a Non-Resident Indian (NRI), perceived by some as excessively stringent:
Overseas Citizen of India (OCI), or foreign citizen is ▪ Section 57(4) and Regulation 5(2)(c) explicitly prohibit
facilitated by legal processes aligned with the welfare of the single men from adopting girl children, prompting
child. Unlike restrictive laws, these individuals enjoy equal concerns about potential gender bias.
priority with Indian citizens for adopting orphaned, ▪ Regulation 5(7) stipulates that couples with two or
abandoned, or surrendered children. The following legal more biological children are generally ineligible to
steps must be adhered to: adopt, except in special cases. This rule has the
1. Non-Resident Indian, Overseas Citizen of India, or potential to exclude otherwise qualified parents solely
foreign adoptive parents residing in a Hague Adoption based on family size.

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The ongoing debate regarding these criteria revolves around 4. Disability and Adoption: Children with disabilities face
striking a balance between ensuring the welfare of children challenges in adoption, with only 1% adopted in 2018-
and promoting fair and inclusive adoption practices. While 19. The adoption of children with special needs shows a
concerns have been raised about the appropriateness of declining trend [10].
certain situations, such as live-in relationships, opponents
argue that blanket restrictions may inadvertently exclude Suggested Reforms
deserving parents without serving a legitimate purpose. 1. Prioritizing Children: CARA and the ministry should
prioritize overlooked and at-risk children for adoption.
Who Cannot Adopt a Child in India? Emphasis on providing a family, family rights, and
Adoption in India is subject to certain legal restrictions to overall welfare for the adopted child.
ensure the well-being of the child. The following individuals
are ineligible to adopt: 2. Strengthening Adoption Laws: India lacks a universal
1. Individuals with life-threatening medical conditions. adoption law, necessitating reconsideration and
2. Persons who are physically, mentally, emotionally, or modernization. Reforms should focus on enhancing
financially unstable. transparency, simplifying paperwork, and minimizing
3. Married couples with less than two years of stable delays.
marriage.
4. Married couples where one spouse does not consent to 3. Post-Adoption Services: Establishing comprehensive
child adoption. post-adoption support services is crucial. Services
5. Single men are prohibited from adopting female should include counseling, educational assistance,
children. healthcare access, and guidance for both adoptive
6. Couples with three or more children cannot adopt a parents and adopted children.
normal child.
4. Awareness and Adoption: Raising awareness about
Age Limit for Adoption in India adoption as a viable means of forming families is vital.
Adoptive parents must adhere to specific age criteria: Public education on the advantages, processes, and
1. There must be a minimum age gap of 25 years between legal facets of adoption is crucial to foster positive
the adoptive child and parents. perspectives.
2. For children up to 4 years, a single parent should not
exceed 45 years, while the composite age of a married 5. Simplifying Adoption Processes: A thorough review
couple must not exceed 90 years. of regulations governing the adoption process is
3. For children aged 4-8, a single parent should not be required. Collaboration with experts to gather feedback
more than 50 years old, and the composite age of a and address practical challenges faced by prospective
married couple must not exceed 100 years. parents is essential for simplifying the adoption process.
4. For children aged 8-18, a single parent should not
exceed 55 years, and the composite age of a married Towards Uniformity: Advocating a Single Adoption Law
couple must not exceed 110 years. in India
5. The 25-year age gap requirement and other criteria do In India, while laws concerning crime, punishment,
not apply to relative adoptions or adoptions by step- commerce, contracts, and various affairs are uniform for all
parents. citizens, there is a conspicuous absence of consistent laws
pertaining to family matters. The lack of uniformity in
Overhauling Adoption Practices in India family laws, as evidenced by case laws and authorities, has
Major Challenges prompted persistent calls for standardized regulations to
1. Lengthy and Complex Adoption Process: Adoption ensure equal treatment of all citizens. This discrepancy is
in India is plagued by a prolonged and bureaucratic notably pronounced in adoption laws, with distinct
process. Over 30,000 hopeful parents await adoption, provisions for Hindus and non-Hindus, leading to emotional
while only 2,131 children are legally available. Two- challenges for non-Hindu parents seeking legal adoption.
thirds of these children have special needs, and the The current legal framework, characterized by the Hindu
adoption process takes an average of three years. Adoptions and Maintenance Act, 1956, fails to provide a
consistent adoption code for all religions. This inconsistency
creates barriers for Muslim and Christian Indians,
2. Illegal and Unregulated Practices: Troubling cases of
preventing them from legally adopting children and
illicit adoption practices, including trafficking and sale officially claiming parenthood. The resultant demand is for
of babies. Unregistered adoption agencies exploit the implementation of a uniform civil code in adoption laws,
vulnerable children and biological parents. A notable aligning with the principles of State policy and India's
example involves accusations against Mother Teresa’s commitment to the Convention on the Rights of a Child
Missionaries of Charity in 2018 related to a "baby- (CRC). Such uniformity is seen as essential to enhance and
selling racket." protect the rights of adoptive children.
Implementing a uniform civil code in adoption laws is not
3. Returning Children after Adoption: A concerning envisioned as infringing upon the fundamental right to
pattern of adoptive parents returning children, with over religion. The proposal aligns with the directive principles of
1,100 cases reported by CARA in 2020. Adopted State policy, which mandate the state to bring about
children are returned to childcare institutions within the uniformity in laws, emphasizing the CRC. Recognizing
last five years. adoption as a significant aspect of Hinduism, the Hindu

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Adoptions and Maintenance Act, 1956, highlights the 4. Vidhi Centre for Legal Policy,
inconsistency that bars Muslim and Christian Indians from https://vidhilegalpolicy.in/wp-
legal adoption due to the absence of a uniform adoption content/uploads/2023/07/Vidhi_Model_Family_Law_R
code. A uniform civil code, if established, would extend the eforms_Code_2023.pdf (last visited Jan 25, 2024).
privilege of adoption to women of all religions, akin to 5. Supra Note 1.
Hindu women, thereby advancing the overall status of 6. Supra Note 3.
Indian women in social life. 7. Sinjini Majumdar. Legal Framework Governing
To avoid conflict, individuals should have the option to opt- Adoption Laws in India, Academike (Jan 27, 2024,
out of religious-based classification within the proposed 9:29 PM),
uniform civil code. In case the central government is https://www.lawctopus.com/academike/legal-
hesitant to proceed, individual states, following the example framework-governing-adoption-laws-india/.
of Goa, are urged to take the initiative. The call for a 8. Supra Note 2.
uniform civil code aligns with the vision of a secular India, 9. The Juvenile Justice (Care and Protection of Children)
emphasizing the need for consistency in adoption laws. Act, 2015, § 57, No. 2, Acts of Parliament, 2016
Moreover, there is a pressing need to address gender bias (India).
within adoption laws. Existing disparate rules based on 10. Sara Bardhan, Neymat Chadha. The Challenges and
gender must be rectified to grant equal rights to both men Unaddressed Issues of Child Adoption Practices in
and women in the adoption process, ensuring a fair and non- India, The Wire (Jan 29, 2024, 5:30 PM)
discriminatory legal framework for adoptive parents. https://thewire.in/society/challenges-issues-child-
adoption-practices-india.
Way Forward: Reforming Adoption Laws in India
1. Introduce specific legal provisions addressing the needs
and rights of working children, prioritizing their
protection and ensuring access to education.
2. Streamline and enhance the adoption process, making it
more efficient to reduce the duration children spend in
institutional care.
3. Permit and promote adoption by single parents,
LGBTQ+ individuals and couples, as well as non-
resident Indians. This aims to diversify prospective
adoptive parents, offering every child the opportunity
for a loving and supportive family.
4. Implement a comprehensive and standardized system
for monitoring and evaluating adoption processes. This
system should ensure transparency, accountability, and,
most importantly, prioritize the best interest of the
child. This point aligns with the need for post-adoption
services mentioned earlier.
5. Initiate awareness and educational programs to dispel
myths and misconceptions surrounding adoption. The
goal is to foster a more positive culture around adoption
in society, encouraging prospective parents and
dispelling any unwarranted concerns.

Conclusion
The existing adoption laws in India demand substantial
reform to address the specific needs and rights of working
children. Simultaneously, there is a crucial need for a more
efficient and inclusive adoption process. Reforms should
embrace inclusivity by allowing adoption by a diverse range
of parents and implementing a robust monitoring and
evaluation system to safeguard the welfare of adopted
children. Additionally, awareness initiatives are imperative
to reshape societal perceptions and promote a positive
environment for adoption.

References
1. The Hindu Adoption and Maintenance Act, 1956, No.
78, Acts of Parliament, 1956 (India).
2. The Juvenile Justice (Care and Protection of Children)
Act, 2015, No. 2, Acts of Parliament, 2016 (India).
3. The Guardians and Wards Act, 1890, No. 8, Acts of
Parliament, 1890 (India).

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