Adoption is a process where an individual or couple assumes the responsibility of another individual from their parents or legal guardians. After adopting all the rights and responsibilities of the child is transferred to the adoptive person. However,,there are laws and regulations governing the process of adoption to maintain the record and check the welfare of the child. Hindu Adoption and Maintenance Act, 1956 has been the major act governing the adoption process in India, however, it is not a secular provision and due to practical difficulties of the act, the Central government has introduced Central Adoption Resource Agency which shall govern the process of adoption in India. In this article, we shall have an overlook of the guidelines and regulations laid down in CARA and its comparison Hindu Adoption and Maintenance Act.

CARA – An Introduction

CENTRAL ADOPTION RESOURCE AGENCY (CARA) was set up to function as the Central Authority in all matters concerning Adoption and to implement various provisions of the Hague Convention on Inter-country Adoption 1993 within the matter of rights, safeguards and procedures involving children that are orphaned, abandoned orsurrendered. The Failure to make sure children’s right to protection adversely affects all other rights of the kid. Thus, the Millennium Development Goals (MDGs) can’t be achieved unless child protection is an integral part of programs, strategies, and plans for his or her achievement. The National Charter for youngsters, 2003 adopted on 9th February 2004, underlined the intent to secure for each child the inherent right to be a toddler and luxuriate in a healthy and happy childhood to address the continuing and emerging challenges in the situation of children, the Government of India drafted the National Policy for Children, 2013 to enhance the provisions for the protection of underprivileged children.[1]Adopting a toddler in India may be a long process. Earlier, parents who wished to adopt would attend the closest agency and register. The agency would match the preferences of the couple with the youngsters available. The match may or might not happen, and would take months, even years. Now, all adoption agencies need to upload details and therefore the Central Adoption Resource Authority (CARA) software will match preferences across the country. This has lessened the duration of an adoption.[2]

The capacity of Indian Male and Female For Adoption

Under the CARA guidelines[3], clause 4 of the regulation speaks about the persons who are capable of being adopted where the regulation states that any child who has been declared legally free by the Child Welfare Committee(CWC) after following the due process.[4]

Under clause 5, the regulation lays down the requisites to be legally capable of adopting wherein it states that any unmarried person can also adopt a child and a married couple can adopt a child of the same sex irrespective of the fact they have children or not and to a childless couple. Under the same provision the legislation has laid down few of the requisiteness to be adhered by a Prospective Adoptive Parent (PAP) which are as follows[5]:

The prospective couple must have completed 2 years of a stable relationship.
Live-in couples are not entitled to adopt a child.
The age of the child to be adopted depends on the composite age of the parents.
If it’s a single parent, they must be a minimum 30 years of age and a maximum of 50 years of age.
The parents should have financial stability.
Health conditions of the parents to be checked
Adoption of a second child is permissible only when the legal adoption of the first child has been finalized but this is not applicable in the case of siblings.
A single male person is not permitted to adopt a female child.

These are the eligibility criteria for a parent and Prospective Adoptive Parents (PAPs) under the CARA regulations and the eligibility criteria for males and females are not mentioned separately under the act.

Process For Adoption

Clause 7 of the regulation states about the procedure which ought to be followed by a couple/person to adopt a child under CARA. The parents are initially required to register under a specialized Adoption Agency (hereinafter referred to as ‘SAA’). SAA is nothing but organizations like SOFOSH (Pune) which facilitates the adoption and care of orphan or abandoned children. These agencies are registered under Section 34(4) of the Juvenile Justice Act, 2000[6]. The JJ Act empowers the State Government to recognize one or more of its institutions or voluntary organizations in each district as SAA in such manner, as may be prescribed, for the placement of orphaned, abandoned or surrendered children for adoption following the provisions of various guidelines for adoption issued from time to time, by the State Government, or the Central Adoption Resource Authority (CARA) and notified by the Central Government. Thus every aspiring adopter has to register to preferably the nearest SAA as a Prospective Adoptive Parent (PAP). ICPS supports State and NGO run Specialized Adoption Agency (SAA) where adoptable children below six years of age are provided residential care.

After the process of registration, an acknowledgment letter shall be sent to the couple/person intending to adopt a child with registration number, password and login credentials. Then the person has got to check in to the account. After the completion of the first step of registration, the person is required to submit the documents as required by the guidelines which are as follows:

PAP’s own or family photograph
Residence Proof
Previous year income proof
Marriage certificate & photograph
Divorce decree/death certificate of spouse (If applicable)
Birth certificate of both parents
Parents medical certificate of fitness & health
In case of a single parent, undertaking from a relative to take care of the child in case of a mishap (death) or other unforeseen circumstances

After submitting these documents the next step is submitting the hard copies of the same document on the request of the SAA. After submitting the hardcopy of the documents SAA will send a team for conduction Home Study Report (HSR) which will be later uploaded on the CARA website.

The final step in the process of adoption isParents will know about Babies. ‘Once the parents decide on the baby to be adopted.’

The concerned SAA (Specialized Adoption Agency) organizes a meeting which is conducted between the parents, a social worker from the SAA, an authorised doctor and the officer from the DCPU(District Child Protection Officer). The purpose of this meeting is to find the suitability of the parents from the child’s point of view.
After this meeting, the parents can interact with the baby.
Further, all the legal formalities are fulfilled by the concerned social worker.
Other formalities like a court order and birth certificate are be taken care of by the concerned SAA.

These are the basic guidelines laid down by CARA to adopt a child

Difference between the Provisions Of CARA And HAMA

The guidelines provided under CARA and HAMA have a lot of distinction as CARA has been legislated in a detailed manner and is suitable legislation applicable to every Indian as well as foreign residential

Some of the major differences between CARA and HAMA are as follows:

Under HAMA, the adoption is considered to be valid only if both the parties are Hindu, if either the child or parents are not Hindu, the adoption ceases to have any legal validation[7] but CARA is a secular provision and there is no such provision mentioned in CARA barring anyone on the basis of religion.
The only ceremony and the process required to adopt a valid Hindu child by Hindu parents are giving and taking ceremony and the proof of the same is enough to acknowledge the adoption under HAMA[8], whereas under CARA the adoptive parents have to undergo huge process coordinating with SAA to adopt a child
The adoption needs not to be registered under HAMA and it will be still considered valid if there was an intention to give and take adoption by the parents but under CARA, the SAA records all the adoptions and they are registered from the very beginning.
There is no governing authority to check the post-adoption stage under HAMA which can be harmful to the child adopted as may lead to trafficking or other immoral activities but under CARA there is a strict mandate to follow the child in post-adoption stage to check whether the child is being treated properly by the newly adopted parents.
The aspect of capacity to adopt also differs by huge margin under HAMA and CARA, as under HAMA it has been laid in Section 7 and 8 as regarding the capacity to adopt by a male[9] and capacity to adopt by a female[10] where the only requisites are the adoptive parents must be of sound mind, should not be a minor and if they are married they should procure the consent of their spouse. These are the only requisites laid down under HAMA concerning the capacity of the adoptive parent whereas in CARA there are a bunch of requisites as mentioned above.
The CARA enables the process of adoption only through SAAs whereas under HAMA only parents or the guardian after taking leave from the court could give the child for adoption.[11]

Recommendation and suggestion

Though Government is playing a proactive role in amending the provisions relating to the adoption process in India, there remain few flaws which are unaddressed in these provisions which are as follows:

The process of adopting a child is a very tedious and time-consuming process as seen for a newborn child, the period for adoption is around 2 to 2 and half years which is detrimental to the interest of both the parents and as well as the child.
Under the CARA guidelines, SAA is permitted to only give adoption of children less than 6 years, however, the majority age in India is 18 years and thus there is no provision under CARA for children between the ages 6 to 18.
Indian culture does not pursue ‘Open Adoption’ instead manifest ‘Shut adoption’ wherein in most cases the child is unaware of his adoptive status and later when he discovers through other sources might lose trust and thus open adoption culture should be bought.
Due to a lack of sufficient funds, the SAA usually does not conduct the Home research study efficiently and even the post-adoption stage of following up is also not adhered to, due to the lack of funds and manpower which could be very detrimental to child’s interest. Thus authorities should take a proper note that these two stages are carried out in the prescribed manner.
Most of the time, adoption agencies are perceived to be “money makers” and so they are constantly put under “scanner‟ by the whistleblowers. There should be very strict laws governing over such SAA as they are directly responsible for the life of underprivileged children.
Since these children undergo a high degree of trauma in their childhood which has a major psychological impact in the later stage of life, but the same is not looked by the adoptive parents and they are under no directions or obligation to take extra care of such children who have undergone such trauma and which may affect the growth of the child.

Conclusion

Thus by referring the guidelines and regulations laid down in CARA, it is quite clear that the whole adoption process is been governed by a competent body that works in the best interest of the child. There are a lot of difficulties and discrepancies in practically applying all the guidelines which many a time would lead to adverse effects. There must be proper monitoring of all the regulations and it should be strictly adhered to. The adoption policy has seen many dynamic changes in the past few years and it is expected to overcome all the said defects in the upcoming years.

[1]https://pib.gov.in/newsite/PrintRelease.aspx?relid=118660

[2]http://cara.nic.in/

[3]http://cara.nic.in/Parents/Guideline_RI.html

[4] Clause 4 of Adoption Regulations, 2017.

[5] Clause 5 of Adoption regulations, 2017.

[6] Section 34(4) of Juvenile Justice Act, 2000

[7] Kumar Sursen vs. State of Bihar AIR 2008 Pat 24

[8]M.Gurudas vs. Rasranjan AIR 2006 SC 3275

[9] Section 7 of Hindu Adoption and Maintenance Act, 1956

[10] Section 8 of Hindu Adoption and Maintenance Act, 1956

[11] Section 9 of Hindu Adoption and Maintenance Act, 1956

By-

V. Pulkit Rathi

( Symbiosis Law School, Pune)

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