Open Access Research Article
STEPHANIE JOAN BECKER VERSUS STATE AND OTHERS
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Article Details
STEPHANIE JOAN BECKER VERSUS STATE
AND OTHERS
AUTHORED BY - RUHI AMIN SAITH
FACTS
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Court
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In the Supreme Court of India
|
|
Citation
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Civil Appeal Bo. 1053 of 2013 (Arising out of SLP (Civil)
No.29505 of 2012)
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Hon'ble Judges/ Coram
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P. Sathasivam, Ranjan Gogoi & V.Gopala Gowda
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BACKGROUND
The
appellant was a 53-year-old single prospective adoptive parent (at the time of
application), who seeking an order from the court filed two applications under
Section 7 and 26 of the Guardians Act,1890. The appellant wished to adopt a
10-year-old female orphan child, Tina, and wanted to take her out of the
jurisdiction for the purpose of inter-country adoption. Both the applications
were rejected by the Trial Court and High Court, despite the possession of a No
Objection Certificate by the appellant.
The age of the appellant was the factor for rejection, according to the
2006 Guidelines for Indian Adoption, a single parent must be at least 45 years
old to be granted guardianship of an orphan minor female child for an overseas
adoption.
ISSUES
1) Is the Pre-Adoption process as
extremely tedious one?
2) Section 26 and Child Trafficking?
3) Does JJ Act, 2015 recognize same sex
adoptions?
4) Why is there an increase in rate of
disruptions?
RULE-S
Section 7
of the Guardians and Wards Act, 1890 – Appointment of Guardian
Section 26
of the Guardians and Wards Act, 1890 – Removal of ward from
Jurisdiction (Inter- Country adoption)
Rule 33
(2) of JJ Rules 2007 - States that for all matters relating to
adoption CARA guidelines and notified by Central government under Section 41
(3) of JJ Act, 2000 will apply
Section 41
(3) of JJ Act, 2000 – Power has been conferred to the court to
give a child in adoption upon satisfaction of State guidelines or CARA and
notified by Central Government.
LACUNAES IN THE LAW
1)
“Racket Busted?”
Trafficking disguised as Adoption?
In 2018, Mother Terresa's
Missionaries of Charity from Ranchi came under fire for their role in a
baby-selling ring.[1]
Two businesses were shut down by the
Maharashtra Police in 2016 for selling infants for between Rs. 2 and Rs. 6
lakhs.[2]
We observe that rather than
supporting adoption, these organizations are raising future adoptive children.
These organizations have the ability to do it by provoking the biological
parents with money offers. There must be special laws addressing these crimes
because the trafficking in disguise of adoption involves the commission of
multiple offences, not just one. Appropriate legislation should be offered in
order to better understand the intricacy of this crime.
Despite
the fact that over 29,000 prospective adoptive parents are anxious to adopt,
there are only 2,317 children available for adoption.[3]
This
discrepancy results from the fact that, of an estimated 30 million, only
261,000 abandoned childrenare being cared for in institutions.[4].
However, not all Child Care Institutions in India have a valid registration.
Inadequate care and human trafficking are all possibilities for children
residing in unregistered facilities
2)
LGBTQ+ Adoptions
Homophobic tendencies catching up?
The
Centre recently opposed the same-sex marriage PIL, asserting that marriage is
primarily a socially recognized union of two persons that is controlled by
written statutory law or unwritten personal traditions[5]
The JJ Act of 2015 offers a secular
form of adoption, and CARA is in charge of it. The regulations only allow
couples who have been married for two years to adopt, despite the fact that
same-sex adoption appears to be permitted on the surface.[6]
At that time, their only
option is to adopt under the names of the partners. The same can complicate
matters pertaining to custody and maintenance
3)
Inter Country
vs. In Country Adoptions?
The tug of war between social and
cultural milieu and inter country adoptions?
The administration made decisions
based on unfounded assumptions. The prevailing belief is that it is ideal to
function in a comfortable cultural and social setting.
The idea that in-country adoption
will help the child keep his or her biological social and cultural traditions
is baseless given the diversity of India. Contrary to popular belief, domestic
adoption exposes kids to 'foreign' social and cultural norms in a manner
similar to those of international adoption.
This distinction is very important
because although though the latter is not prohibited, it is actively
discouraged throughout the entire procedure with the aid of the working state
apparatus. This is also clear in the situation that follows. Before an overseas
adoption can happen, ACA must spend 30 days looking for suitable Indian
parents. Any legitimate Indian placement agency must mandate that 50% of all
adoptions be completed by Indian families. Evidently, the 50% requirement has
nothing to do with the declared objective of ensuring children's wellbeing.
After the similar pre adoption stage,
CARA tracks only foreign adoption in the post-adoption scenario, which explains
why there are so many instances of trafficking in India. CARA is also mandated
with corresponding with Indian diplomatic posts adoption. Under the
post-adoption follow-up requirement, the agency is only required to communicate
with the Family for three years in cases of in-country adoptions.
Because the process for domestic
adoption is so straightforward, there is a very real risk that the safeguards
are dangerously minimal. This situation cannot be accepted and is intolerable.
No effort is made to relax procedural restrictions or even to promote foreign
adoptions. The current procedural safeguards ought to apply to all adoptions.
4)
“Disruptions” in the process?
Healthy baby syndrome
CARA reports an unusually high number of adoptive parents returning
children soon after adoption, or what they refer to as "disruption."
In
order to avoid the drawn-out adoption procedure, CARA introduced a new category
of children suitable for "rapid placement" in 2016. These kids were
"hard to place," possibly because of a small physical defect or
because they were older, but they weren't classified as having special needs.[7]
Annual figures show a decrease in domestic adoptions of
children with special needs. More and more children with special needs are
being adopted by foreigners concurrently.[8]
Of the 278 adopted children who were
given back to their parents, only three were foreign-born. According to
specialists in the sector, this illustrates how adaptable immigrant families
are as well as the support system that surrounds them.
AFTERTHOUGHTS?
In the case National Textile Workers’ Union v. P.R.
Ramakrishnan[9],
Justice Bhagwati maintains that the law cannot be silent. It must adjust to the
evolving social values and precepts.
In?England, the Adoption and Children Act, passed in November 2002,[10] interpreted
‘couples’ as two people living as partners in an enduring family relationship
irrespective of their sex.
We must aim for a more child centric approach and make our laws more
inclusive, we must recognize LGBTQ+ unions, so more kids are given homes, which
upholds the provisions of adoption.
It must first begin the adoption
process for the kids it already possesses, as well as ensure that they are
being taken care of, even if that means giving them to recognized, licensed
organizations both inside and outside the state. it is crucial to conduct a thorough analysis
of the current legislation and their implementation. We must avoid children
losing their childhood over fights between government and adoption agencies.
Therefore, a more diligent pre adoption process must be established in in
country adoption.
We also notice in the following case,
that Stephanie Becker was not allowed adoption because she was 54 at the time
of application, the courts spent two years to come to a decision, she further
aged in that process, therefore the entire system is acting counterproductive.
Establishment of Tribunals, to
dispose adoption cases fast, to ensure that kids are not losing a good chunk of
their childhood waiting for court approvals.
We need to have more psychologists,
that help kids and parents. Older kids and kids with special needs, do not
require immediate placement plans, but require therapy, where they get an
opportunity to come to terms with their traumatic childhood. Parents who return
the kids, must also undergo therapy and pay some compensation for adding to the
mental agony of the child.
We must also have a safe post in
country adoption process, where there are regular checks on the adopted
children.
BIBILOGRAPHY
Kumari, V. (2016). THE JUVENILE JUSTICE ACT
2015-CRITICAL UNDERSTANDING. Journal of the Indian Law Institute, 58(1),
83–103. http://www.jstor.org/stable/45163062
Masson, J. (2001). Intercountry Adoption: A Global
Problem or a Global Solution? Journal of International Affairs, 55(1),
141–166. http://www.jstor.org/stable/24357675
Pat Moodley. (2006). Inter-Country Adoptions and
Child Trafficking: A Fine Line Indeed. Agenda: Empowering Women for Gender
Equity, 70, 145–148. http://www.jstor.org/stable/4066750
Bartholet, E. (1993). International Adoption:
Current Status and Future Prospects. The Future of Children, 3(1),
89–103. https://doi.org/10.2307/1602404
Johnson, K. (2002). Politics of International and
Domestic Adoption in China. Law & Society Review, 36(2),
379–396. https://doi.org/10.2307/1512181
[1] Dharambir Kumar Sinha, Now CID to
probe baby-selling racket of Ranchi's Mother Teresa charityhttps://www.indiatoday.in/india/story/now-cid-to-probe-baby-selling-racket-of-ranchi-s-mother-teresa-charity-1291932-2018-07-21
(Feb 21 2023 10:40 PM)
[2] Roli Srivastava, Reuters, https://www.reuters.com/article/us-india-babies-trafficking-idUSKBN14H0S9
(Feb 21, 2023, 10:40 PM)
[3]Ambika Pandit, Why the wait to
adopt a child could get longer, Times of India Why
the wait to adopt a child could get longer | India News - Times of India
(indiatimes.com)
(Feb 21, 2023, 10:40 PM)
[4] Namita Bhandare, Abuse of Children
in India’s Institutions Reveals Nation wide Crisis of Reform, Quint Abuse
Of Children In India’s Institutions Reveals Nationwide Crisis Of Reform
(thequint.com) (Feb 21, 2023, 10:40 PM)
[5] Abhijeet Iyer Mitra v. Union of
India, WP (C) No. 6371/2020 & CM Appl. No. 22554/2020.
[6] Adoption Regulations, 2017, §5(3).
[7] New method of ‘immediate
placement’ helps orphaned kids find new family, Indian Express (New
method of ‘immediate placement’ helps orphaned kids find new family | Lifestyle
News,The Indian Express (Feb 22, 11:00 AM)
[8] Jagriti Chandra, Indians averse to
adopting children with special needs Indians
averse to adopting children with special needs - The Hindu, (Feb 22, 11:00 AM)
Article Information
STEPHANIE JOAN BECKER VERSUS STATE AND OTHERS
Authors: RUHI AMIN SAITH
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/07/23
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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