Legal Service India - The Paradox of Inter Country Adoption
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The Paradox of Inter Country Adoption

Written by: Mohit Aggarwal - M.S. Law College, Cuttack
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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.

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.

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.

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.

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 judgment 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 judgment 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.

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.

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.

More Articles on Adoption Law
Inter Country Adoption Procedure and Supreme Court Guidelines
Adoption: Under Hindu, Muslim, Christian And Parsi Laws
Adoption under Juvenile Justice Act

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