Orphaned by the state

Now, after years of dithering, the Ministry of Social Justice and Empowerment has finally initiated a move to streamline the existing adoption obstacle course.

Impossible as it may seem, the only law directly pertaining to adoption at present is the Hindu Adoption and Maintenance Act or HAMA, framed in 1956, and which, as the name implies, is applicable to all Hindus, and to Buddhists, Sikhs and Jains. Even this was not framed as an adoption law, and isnot a child-centred legislation. It is more a means for a Hindu family to ensure that a childless adult can adopt a child and the family property would pass on to the designated heir.

For minorities, there is the Guardianship and Wards Act, enacted more than a century ago in 1890, which entitles them to become the guardians of a child but does not permit them to legally adopt him/her.

Moreover, under this law, the relationship between the child and the adoptive parents remains fraught with uncertainties: the child can be taken away or the parents can reject the child after any length of time. Worse, when the child turns 21, the parents no longer have any claim on it or vice-versa. If the parent dies without making a will, the child does not inherit his/her property. All of this leaves both the child and the parent under a constant cloud of insecurity.

Such a blatant discrepancy in adoption laws for Hindus and the minorities has been acknowledged by successive governments, but none has taken the bull bythe horns to amend the legislations. The fear that such a move would be misconstrued by minorities as interference in their personal laws has held back any change in the law for the past five decades.

In July this year, the Cabinet took the first step towards correcting the situation. It gave its approval to making the Child Adoption and Resource Agency (CARA), the ministry’s overseer of country-wide adoptions, an autonomous body. The ministry is now in the process of getting the CARA registered as a society independent of the ministry.

But all these are still piecemeal solutions. The larger issue of amending the discriminatory and flawed adoption and guardianship laws would still remain, according to social workers.

NGOs and agencies have suggested a way around the legal hurdle. They have recommended that the Government promulgate a Special Adoption Act on the lines of the Special Marriages Act, which would apply uniformly to all citizens of the country. While adoption would also be covered in thelong-awaited uniform civil code, NGOs are pressing for the Special Adoption Act since there is no sign of the uniform civil code getting off the ground.

Under the Special Adoption Act, all adoptions would be recognised by courts irrespective of the religion of the child or the adoptive parents, provided the parents can meet certain criteria with regard to economic means and consent of the spouse. If you are an Indian above 25 years of age, with a dependable income to ensure that the child can be given the basic necessities of life, and in good physical and mental health, then you should be able to adopt a child. The proposed adoption law would also contain certain safeguards for the protection of adopted children, whereby if negative information is received about the well-being of a child, the court would take immediate action to remove him/her.

Also, under the Act, if the district court has reason to believe that a child is being habitually neglected, treated with cruelty or discrimination; made to begor resort to prostitution or to indulge in criminal activities; or is likely to be taken out of India for any immoral purpose, it can intervene in the situation, and the adoption can even be revoked.

According to officials of the Ministry of Social Justice and Empowerment, a civil law on the lines of the Special Adoption Act has been drafted and is lying ready with them. This would be along the lines of an enabling law allowing adoption without impinging on personal laws. Once the political green signal is given, all that would be required is a bit of dusting up and some polishing of the final version.

With changes in social attitudes, people are becoming more open to the idea of adoption. Childless couples, or even those with a single child, but wanting to adopt a second offspring, affluent families which feel they want to do their bit for society, single women wanting children: the reasons for adopting are numerous, but as the law stands, it is only the brave and determined few who can stick it outthrough the many formalities involved.

NGOs and agencies working in the field estimate there are over two million destitute children in the country. But the actual number of in-country adoptions per year, for which neither government nor the NGO sector has any figures, is perhaps less than 15,000. This too is an approximate estimate.

As for foreigners wanting to adopt an Indian child, they have to first obtain guardianship of the child in India and then adopt the child once they return to their own country according to the adoption laws there. The court monitors the progress of the child through progress reports which the adoptive parents have to send for five years.

Two attempts to amend the adoption laws were made in the ’70s and in the early ’80s, but both fell by the wayside. But the NGOs are determined that at least the enabling law on adoption be pushed through Parliament without delay. And for once, the ministry agrees.