INTER-COUNTRY ADOPTION: INTERRELATION OF LAW AND SOCIETY AND NEED OF A LEGISLATION IN INDIA (By- Gauri Chandrakant Khule)
Adoption is a process for legally changing
parental responsibilities from biological parents or the persons or
institutions that act as caregivers of children to the adoptive parents,
thereby providing the child the care and warmth of a family. While the best
interest of the child remains at the core of adoption, it also provides an
opportunity to people to become parents. There are also parents who want to do
some good by adopting a child. Although the system of adoption has been in
existence since ancient times, the concept attained increasing importance in
modern times.[1] There is emergence of legal adoption at
international level. Legal adoption is necessary for the betterment of the
child. Legal adoption is binding and provides an extended security environment
for the adopted child. It safeguards the status of the child in the adoptive
family. Therefore, law is necessary to achieve the welfare of the child as well
as to regulate the process of inter-country adoption.
Inter-country adoption being an emerging
phenomenon needs more focus, because the child is going to place in completely
new culture and atmosphere. The subsidiary principle is the key to making
inter-country adoption a service for children rather than for prospective
adopters. It prioritizes care of the child in the family of origin before all
other arrangements and relegates inter-country adoption by unrelated cares
behind appropriate care in the child's home.[2]
Child trafficking, child prostitution, etc.
are some of the offences which are being committed against the child. Children
being a vulnerable class of the society need more focus. Such offences can make
a negative impact on society as the children are the asset of the society. Law
having a binding force can change the situation and the best interest of the
child can be achieved.
The objective of CARA guidelines is to give
a comprehensive and precise framework for theinter-country adoptions. The
guidelines provide a sufficient mechanism to govern the inter-country adoption
to achieve its objects, but there are some lacunas in it. Therefore, the
researcher wants to highlight some points which need focus. The guidelines do
not have much force as the law. Therefore, the procedure given in the guidelines
can be overlooked by the foreign agencies, prospective parents, Indian
agencies, etc. Therefore, there should be a legislation governing theinter-country adoption. The legislation can
serve the best interest of the child as it is having the binding force on the
society.As we have seen that, the CARA guidelines lack in provisions regarding
penalty in case of any mischief to the child. Therefore, it is necessary to
incorporate penal provisions. Awareness programmes should be arranged for the
people who want to give their child in adoption or who want to adopt a child
but do not have any knowledge about the legal procedure for the adoption.
The Supreme Court has given some measure to
be taken in case of inter-country adoption. “CARA should consider the option of
appointing a panel of Psychologists, Lawyers as well as NGOs in all the States
so that the Child Study Report and Home Study Reports in the case of domestic
adoptions, if applicable, in India are prepared scientifically in a time bound
manner. The local police as well as Anti Trafficking Unit of the Ministry of
Home Affairs should be asked to give their response to the Adoption application
within a strict time frame. If response is not received from
statutory/government authority within the time-frame prescribed, it should be
presumed that said authority has no objection to the adoption."[1]
Strict provisions for the post adoption
status of the child should be strict. It is not that the objective of welfare
is being criticized but that it will not be achieved by the manner in which the
government is currently pursuing it. The state is laboring under the carefully
constructed illusion that the only method by which welfare can be achieved is
by placing the child in its own socio-cultural milieu. The ground norm of
welfare of child has been replaced by this construct called socio-cultural
milieu.[2] Thus, the researcher through this research
study has aimed to examine and explain the relationship between law and
society; its effect on the social transformation focusing on the emerging need
to regulate the inter-country adoption by enacting a legislation.