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(i) Introduction
Inter-country adoption is an increasingly common form of family
formation. Inter-country adoption can be defined as adoption of a child
by a person of another country. Inter-Country adoption may be more
viable choice than domestic adoption for many families especially those
who want to adopt a healthy infant.
Over the last 10 years, the numbers of children who are adopted by
families who live outside of the child's birth country has more than
tripled. Our increasingly globalize world is blurring the edges of
racial, ethnic or national identity. No where is this phenomena more
actualized than in the act of building a family through inter-country
adoption. In the United States, alone, more than 20,000 children a year
are being adopted from China, Russia, and other Asian, Eastern European,
and Latin American countries.
Yet, this increase in numbers of children receiving permanency and the
opportunity to grow and develop within loving families, can be
deceptive, as it represents but a small percentage of the hundreds of
thousands of children born into poverty or abuse, who, because of the
lack of adequate adoption service infrastructure, are languishing in
institutions, living on the streets, or living lives of unmitigated
poverty with no opportunity to develop to their fullest potential. And
unfortunately, they represent but a small percentage in comparison to
the children who have died from treatable illnesses, malnutrition and
neglect.
The increase in the numbers of children being adopted by families from
other countries has also been the cause of an enormous increase in
Public Policy Controversy, leading to The Hague Convention and Treaty on
International Adoption, and numerous countries changing their internal
laws and policies, to regulate inter-country adoption practices. It has
also led to an actual decrease in opportunity for hundreds of thousands
of children who need families to ever have this opportunity, or to
benefit from this opportunity early enough in their lives to escape the
ravages of lack of nurture, institutionalization, malnutrition, and lack
of educational opportunity.
Nevertheless, it must be recognized that some children adopted from
foreign countries arrive in their new families with special needs. In
some cases the child's special needs are known or diagnosed prior to
adoption, in some cases not. Some inter-country adopted children may be
immediately diagnosed with treatable medical conditions, while some
children may later develop conditions which entail a longer term
commitment to treatments or therapies. However, it is important that
prospective adoptive parents recognize that there are risks associated
with inter-country adoption and be prepared to deal with them.
Inter-country Adoption has become much more controversial than what used
to be the case. As a result of this, there have been many moves to
"clean up" inter-country adoption that often seem to have a polarizing
effect between agencies and adoptive families. In addition,
legislators, NGOs, and other interest groups have been prone to jump on
the bandwagon of increased regulation in attempts to repair the causes
that have led to the unfortunate minority of adoption cases mired by
poor practices and controversy.
(ii) Requirements for Inter Country Adoption
Inter-country adoptions are subject to more oversight and controls than
are domestic adoptions. Prospective parents must conform to the
requirements of their state of residence and each country has its own
laws that must be satisfied as well. Both the parents and the children
must also meet eligibility requirements of the Immigration and
Naturalization Service before the child is issued a visa. To enter the
U.S. with a preference visa as an "adoptable orphan", a child must be a
true orphan, be unconditionally abandoned, or have a sole surviving
parent who is unable to care for him. Typically, an inter-country
adoption takes 9 to 18 months to complete, after a social worker gathers
a complete set of information regarding the prospective adoptive family,
attitudes toward adoption, and the type of child desired. The
information seeking process and final report are referred to as a home
study.
A review of the research of outcomes for children adopted
internationally finds that the children generally do quite well.
Attachment, identity, and comfort with adoption issues are generally
reported to be good. International adoptee typically find racial
discrimination issues to be more troubling than issues stemming from
adoption. The rates at which international adoptions disrupt or lead to
the return of the child to the pre-adoptive environment are equivalent to those
for domestic adoptions
(iii) Transracial Adoption
The subject of trans-racial adoption is often controversial among
policymakers, child welfare practitioners and the general public in this
country, particularly when it concerns the adoption of African American
children by Caucasian parents. Generally speaking, the trans-racial
adoption of children of other racial, ethnic or cultural backgrounds,
whether Asian, Indian, Latino, South or Central American, or from
Eastern Europe or other countries around the world, is more readily
accepted. The trans-racial adoption of African American children,
however, seems to raise the persistent question of whether or not such
arrangements are ultimately in the best interests of the child.
(iv) The Role of Money in Adoption:
The cost of adopting a healthy infant or a young child can be relatively
expensive, certainly if compared to the usually more modest expenditures
of biological parenthood. By contrast, the adoption of a child in foster
care with special needs may involve no or only nominal costs. To some
extent, the costs associated with adoption can be contained, resources
found, and monetary assistance and other support may be available.
(v) Provisions for Inter Country Adoption in India:
The concept of Inter-Country adoption is relatively a new concept in
India. It did not find place in the top priorities of the legislators.
There was not and still does not exist a legislation which primarily
provides for the rules regarding Inter-Country adoption. But in the year
1984, the Hon'ble Supreme Court of India in a landmark case of
Laxmikant
Pandey Vs. Union of India [AIR1984 SC469] laid down few principles
governing the rules for Inter-Country adoption. The case was instituted
on the basis of a letter addressed to the court by a lawyer, Laxmikant
Pandey alleging that social organizations and voluntary agencies
engaging in the work of offering Indian children to foreign parents are
indulged in malpractices. It was alleged that these adopted children
were not only exposed to long horrendous journey to distant foreign
countries at the risk of their life but they also ultimately become
prostitutes and beggars. Supreme Court in this case expressed its
opinion and framed certain rules for Inter-Country adoption.
The Hon'ble Court asserted in Para 8 of the judgement that, "
while
supporting Inter-Country adoption, it is necessary to bear in mind that
the primary object of giving the child in adoption being the welfare of
the people, great care has to be exercised in permitting the child to be
given in adoption to foreign parents, lest the child may be neglected or
abandoned by the adoptive parents in the foreign country or the adoptive
parents may not be able provide to the child a life of moral and
material security or the child may be subjected to moral and sexual
abuse or forced labour or experimentation for medical or other research
and may be placed in worse situation than that in his own country." It
further went on to give the prerequisites for foreign adoption. It
stated that "In the first place, every application from a foreigner
desiring to adopt a child must be sponsored by social or child welfare
agency recognized or licensed by the government of the country in which
the foreigner is a resident. No application by a foreigner for taking a
child in adoption should be entertained directly by any social welfare
agency in India working in the area of Inter-Country adoption or by any
institution or centre or home to which children are committed by the
juvenile court."
The Supreme Court also insisted the age within which a child should be
adopted in case of Inter-Country adoption. "If a child is to be given in
Inter-Country adoption, it would be desirable that it is given in such
adoption before it completes the age of 3 years." Such a ruling was
delivered by the Supreme Court because it felt if a child is adopted by
a foreign parent before he/she attains the age of 3, he/she has more
chances of assimilating to the new environment and culture. Another
important rule framed by the Court during the course of judgement was "Since there is no statutory enactment in our country providing for
adoption of a child by foreign parents or laying down the procedures
which must be followed in such a case, resort had to be taken to the
provisions of Guardian and Wards Act, 1890 for the purpose of
felicitating such adoption."
The Bombay High Court in
Re Jay Kevin Salerno [AIR1988 BOM139] iterated that
"where the custody of a child is with an institution, the child is
kept in a private nursing home or with a private party for better
individual care of the child, it does not mean that the institution
ceases to have the custody of the child." Therefore it may be submitted
that in the absence of any explicit legislation on the subject, the
Supreme Court has played a pivotal role in regulating the adoption of
tendered aged children to foreign parents.
(vi) Special Challenges of Parenting through Inter Country Adoption:
Once the child is in his new home, families find that there are special
parenting concerns and responsibilities inherent in nurturing a child
adopted internationally. Health and developmental status may require
special attention in the early years, while issues of adoption,
identity, and racism (most often the children are of minority ethnic
heritage) require parental attention as the child grows. Supports for
the family include adoptive parent support groups, interaction with
local ethnic communities, visits to the child's country of origin,
programs provided by adoption agencies and adoptive parent groups to
support ethnic heritage, and parenting resource materials such as books
and videotapes. Openness in adoption may provide additional support for
families of children who have found homes through inter-country adoption
and for adopted adults. However, policies of other countries may inhibit
information exchanges that allow for various levels of contact between
birth parents and their children who are adopted.
Those who support inter-country adoption often find themselves stuck
between a rock and a hard place. On one hand there is an ongoing barrage
of media reports that sensationalize inter-country adoption, combine it
with child trafficking, and create the appearance that a minority of
criminal cases represent the norm. On the other hand exists a government
bureaucracy that at times seems unwilling to address simple reforms that
could curtail the limited problems which do exist.
(vii) Conclusion:
The future of inter-country adoption will be determined
by the perceptions of its success held by officials and the public in
the children's countries of origin. Safeguards contained in the Hague
Convention on Inter-country Adoption, a multilateral treaty of
cooperation and controls now being considered for ratification by
countries around the world (including the U.S.), will help reassure all
parties that the rights of the children and birth parents in an
inter-country adoption are respected. The Convention should put to rest
some of the fears (that the children are being used as organ donors, for
example) that make the process unstable and deny the love of a permanent
family to children who could benefit from adoption.
Keeping in mind the large-scale child trafficking in the world, The
Rights of the Child, 1989 convention requires that Inter-Country
adoption will receive only the last priority while searching for the
foster home. Like any other types of adoption, Inter-Country adoption
can be expensive, time-consuming and uncertain. If the challenges
involved in inter country adoption can be taken care of then
Inter-Country adoption will give thousands of families joy and
satisfaction as it has already fulfilled dreams of many.
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The author can be reached at :
mohitandmohit@legalserviceindia.com
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