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Adoption and related laws in India

Published: 15th Sep, 2022

Context

The Ministry of Women & Child Development has written to the state governments, requesting that they promptly implement the updated adoption laws, which require adoption decisions to be issued by District Magistrates (DMs) rather than courts, effective September 1.

However, the revised guidelines raise various concerns about the adoption procedure in India & its application.

About

Current Laws for Adoption in India

  • Adoption within India is regulated by two laws —
    • The Hindu Adoption and Maintenance Act of 1956 (HAMA)
    • The Juvenile Justice Act, 2015.

Both laws have distinct eligibility requirements for adoptive parents.

The Central Adoption Resource Authority (CARA), a statutory organization under the Ministry of Women & Child Development (MoWCD), oversees the adoption of abandoned, orphaned, and surrendered children through its affiliated or registered adoption agencies. It was established in 1990.

What is in the new rule?

  • District Magistrates (DM) have been given the authority to issue adoption orders in place of courts, effective September 1.
  • All pending cases must now be transferred.

Why is there concern over the revised rules?

  • Parents, lawyers, activists, and adoption firms are concerned that cases already in court would have to be transferred, and the process will have to begin over again.
  • There is a chance that the Judiciary will be less informed about adoption, and further crimes may be aggravated.
  • Further, the complexity of the procedure might increase, due to the possibility of a lack of cooperation among different involved agencies.

Why adoption is a challenge?

  • Long delays in the adoption process due to the involvement of several institutions (Judiciary, Executive, and Legislators) and lack of coordination among them.
  • The engagement of various stakeholders (Centre, States, CARA) complicates the process.
  • Loopholes in the adoption system;
    • DMs are authorized but are not informed of their duties regarding Adoption and lack of awareness.
    • Courts continue to consider post-adoption and succession-related issues, which raises questions about the validity of DMs issuing adoption orders.

The numbers:

According to the United Nations Children's Fund (UNICEF), India has 2.96 crore orphaned & abandoned children. According to the Ministry of Women and Child Development's 2020-21 annual report, 2.56 lakh children live in 7,164 childcare institutions (CCIs) nationwide.

Consequences

  • On Adopted Children: The children adopted legally or illegally, are vulnerable and hence need proper management in every step before adoption.
  • On People Aspiring for Adoption: Adopting a kid is already difficult in Indian society, and the legal adoption procedure has made it even more difficult.
  • On Constitutional Machinery: Because the executive and judicial branches of government have interfered with the adoption process, future issues may arise when the validity of succession rights is evaluated.

Steps have been taken to resolve the challenges with adoption.

  • Centralization of Adoption laws: Maneka Gandhi, the then-Minister for Women and Child Development, streamlined the whole adoption system in 2015 by authorizing CARA to keep a registry of children and prospective adoptive parents in several specialized adoption agencies and match them before adoption.
  • Involvement of NGOs and Civil society: After receiving a no-objection certificate from CARA, NGOs should be able to deliver children for adoption immediately.
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