12 July 2011
By, Swati Deshpande
Live-in couples desirous of adopting children have no hope on this front any more. The existing adoption guidelines, which were silent on theissue,havebeen amended to specifically bar them from adoption. “Couples in a live-in relationship are not eligibleto adopt a child,” saysthe concerned ruleunequivocally.
The new rules, recently notified by the ministry of women and child development, focus mainly on “the source of the child” (abandoned, orphaned or surrendered), placement priority and ethical issues. While live-in coupleshavebeen barred,unmarried individuals will continue to be allowed to adopt, while married couples “may” have toshowonly “two yearsof stable marital relationship” insteadof theearlier five years.
“The adoption rules have come into effect. They have been gazetted,“ said the governmentlawyer.
The guidelines ease some provisions, seek to fast-track adoption of “children with special needs” and promote domestic adoptions by enforcing an 80:20 rule. The rule will require an adoption agency in India to place only 20% of its available children for intercountry adoptions as against the existing norm of 50-50. Children with special needs however are not counted in the 20%. To speed up adoption procedures, there is a twomonthdeadline.
To check the plight of children in failed foreign adoptions—which in recent years hasseen a rise—the rules now require foreign adoption agencies to shell out $5,000 before repatriating a child after court orders are passed for such repatriation. A whole section is devoted to repatriation under the guidelines.The money has to be deposited with a public sector bank and the documents will be in the custody of the state government. The child will get the money on becoming a major.
Where the old guidelines were silent on the rights of adopted children seeking information on their biological parents, the new rules specifically address such rights. Section 52 is titled ‘Roots search’ and it recognizes this right as stemming from the UN convention.
Adoption Agencies will now have to “facilitate an adopted child's roots search, but will keep in mind his or her age and maturity.” The guidelines,however,ban roots search by a “third party.” The provisions also clarify that personal information cannot be revealed “if the biological parent/s specifically requested anonymity while surrendering thechild”.
The new rules, titled the Guidelines Governing Adoption of Children,2011,have relied on the Juvenile Justice Act, two international conventions—The Hague Convention on Protection of Children and Cooperation in Inter-Country Adoption, 1993, and the 1989 UN Convention on Rights of the Child as well as the findings of the 1984 landmark Supreme Court judgment on adoption in Laxmikant Pandey vs Governmentof India.
Central government advocate Vinod Joshi presented the guidelinesbeforetheBombay HC on Monday. The HC bench of Justices B H Marlapalle and U D Salvi was hearing a petition filed by the Pune-based Advait Foundation and another NGO that raised several “disturbing” issues concerning the adoption of children from andin India.
The lawyer for the NGO, Pradeep Havnur, has sought two weeks’ time to study the new guidelines. He said that there appeared to be several provisions in the new norms thatcontravenedthe Supreme Court ruling.”
Advocate Jamshed Mistry, who represented a foreign adoptee, Arun Dhole, in the apex courtin hissearchfor his biological mother's identity, said, “Including theconceptof roots search is laudable—however, the guidelines also imposesevere restrictionswhich aretantamounttocurbing the rightitseeksto give.”
Laying down the law
Who can be adopted?
- Any orphaned, abandoned or surrendered child
- The child has to be declared legally free for adoption by the child welfare committee
- An individual, irrespective of his or her marital status
- Childless couples
- Parents, irrespective of the number of same-sex living biological children they have
- Married couples with at least two years’ stable marriage
- Couples in live-in relationships More guidelines
- An unmarried male cannot adopt a girl child
- Prospective adoptive parent can register with only one recognized agency, near his or her house
- Persons wishing to adopt a child with special need will be given top priority in waiting list In inter-country adoptions
- The order of priority is as given:
- Non-Resident Indian
- Overseas Citizen of India
- Person of Indian Origin
- Foreign national