Adoption bY Nri's
Many non-resident Indians and people of Indian origin (PIO) who wish to adopt Indian children face a lot of hurdles.
Adopting a child from India may seem simple on paper, but the paperwork and procedures can be time-consuming. So much so that it is rare for a foreigner to get a baby younger than 10 months or a year. Of course, the satisfaction and fulfillment that one feels when the baby is one’s arms makes the long process worth the wait! Luckily, the Indian government has realized this problem and is now trying to speed up the process of adoption. From this year onwards some results are expected.
What exactly does an adoptive parent have to anticipate? Well, there are different rules - for Indians living in India, for those of Indian descent living in foreign countries and for foreigners. One of the advantages of Indian adoptions is that singles are allowed to adopt, including single males. However, it is easier for single women.
Generally speaking, childless parents are preferred, though this is not a must. If you have only boys, then it is perfectly alright if you adopt a girl. The age difference between the child and parents should not be more than 45 years.
For NRI’s (Non-Resident Indians)
No relatives can be adopted - only abandoned children. Secondly, at least one parent needs to hold foreign citizenship as most countries (United States) do not allow you to adopt from another country unless you are a citizen. It is also ideal if the other parent has an Indian passport as this exempts the prospective parent from an ACA clearance. This saves time and paperwork. Overall, parents of Indian descent are preferred, even if they hold foreign citizenship.
The Guardians and Wards Act, 1890 (GWA), a 116 year old Indian law, plays spoilt sport for the 12 million orphaned children in India who need parents by not allowing Muslims, Christians, Jews and Parses to become a child’s adoptive parents.
They can only be appointed as ‘guardians’. Even the more liberal Hindu Adoption and Maintenance Act, 1956 (HAMA) does not allow non-Hindus to adopt a Hindu child. The process is tedious and hemmed in with restrictions.
The result - non-Hindus and foreign nationals can at most become guardians but cannot adopt children from India, even after they comply with the cumbersome procedure.
The procedure of adopting Indian children is extremely complicated for NRIs, even if they are Hindus. Section 16 of HAMA gives a conclusive status to an adoption deed recording an adoption in compliance with the provisions of this Act.
So a Hindu NRI - who having executed an adoption deed under the said Act, approaches the American, British or any European embassy or high commission, for immigration of the adopted child to its new home country - is faced with big disappointment.
The adoption deed is not enough. The foreign rules stipulate that the adoptive parents have to now obtain ‘guardianship orders’ from a ‘guardian judge’ under the Hindu Minority and Guardianship Act, 1956 (HMGA) for Hindus and a similar order under the GWA for non-Hindus. Genuine transfer of parental responsibility does not help.
The fact that a valid adoption under HAMA is not acceptable for immigration purposes, unless supported by a guardianship order either under GWA or HMGA, is somewhat of a legal paradox.
In fact, it’s a pity that even after 60 years of Independence, India does not have a comprehensive adoption law applicable to all its citizens, irrespective of the religion they profess or the country they live in as NRIs, PIOs. .
In-country Adoption of Indian children is governed by In-country Guidelines-2004 while Inter-country Adoption procedure is governed by a set of Guidelines last issued on 14th February’2006. These Guidelines are a follow up of various directions given by the Supreme Court of India in L.K. Pandey vs. Union of India (WP No 1171 of 1982 and other cases). These Guidelines are amended and updated from time to time keeping in mind the welfare of such child. While CARA (Central Adoption Resource Authority) is engaged in clearing inter-country adoption of Indian children, its principal aim is to promote in-country adoption. In fact, CARA ensures that no Indian child is given for inter-country adoption without him/her having been considered by Indian families residing in India. CARA also provides financial assistance to various NGOs and Government run Homes to promote quality child care to such children and place them in domestic adoption.
Further, keeping in view the repeated guidelines of the Supreme Court of India in adoptions by foreign nationals to prevent trafficking of children and to protect their welfare, a uniform streamlined statutory procedure acceptable to foreign jurisdictions would also serve the purpose better to mitigate the plight of the adopted child.
Adopting a child from India may seem simple on paper, but the paperwork and procedures can be time-consuming. So much so that it is rare for a foreigner to get a baby younger than 10 months or a year. Of course, the satisfaction and fulfillment that one feels when the baby is one’s arms makes the long process worth the wait! Luckily, the Indian government has realized this problem and is now trying to speed up the process of adoption. From this year onwards some results are expected.
What exactly does an adoptive parent have to anticipate? Well, there are different rules - for Indians living in India, for those of Indian descent living in foreign countries and for foreigners. One of the advantages of Indian adoptions is that singles are allowed to adopt, including single males. However, it is easier for single women.
Generally speaking, childless parents are preferred, though this is not a must. If you have only boys, then it is perfectly alright if you adopt a girl. The age difference between the child and parents should not be more than 45 years.
For NRI’s (Non-Resident Indians)
No relatives can be adopted - only abandoned children. Secondly, at least one parent needs to hold foreign citizenship as most countries (United States) do not allow you to adopt from another country unless you are a citizen. It is also ideal if the other parent has an Indian passport as this exempts the prospective parent from an ACA clearance. This saves time and paperwork. Overall, parents of Indian descent are preferred, even if they hold foreign citizenship.
The Guardians and Wards Act, 1890 (GWA), a 116 year old Indian law, plays spoilt sport for the 12 million orphaned children in India who need parents by not allowing Muslims, Christians, Jews and Parses to become a child’s adoptive parents.
They can only be appointed as ‘guardians’. Even the more liberal Hindu Adoption and Maintenance Act, 1956 (HAMA) does not allow non-Hindus to adopt a Hindu child. The process is tedious and hemmed in with restrictions.
The result - non-Hindus and foreign nationals can at most become guardians but cannot adopt children from India, even after they comply with the cumbersome procedure.
The procedure of adopting Indian children is extremely complicated for NRIs, even if they are Hindus. Section 16 of HAMA gives a conclusive status to an adoption deed recording an adoption in compliance with the provisions of this Act.
So a Hindu NRI - who having executed an adoption deed under the said Act, approaches the American, British or any European embassy or high commission, for immigration of the adopted child to its new home country - is faced with big disappointment.
The adoption deed is not enough. The foreign rules stipulate that the adoptive parents have to now obtain ‘guardianship orders’ from a ‘guardian judge’ under the Hindu Minority and Guardianship Act, 1956 (HMGA) for Hindus and a similar order under the GWA for non-Hindus. Genuine transfer of parental responsibility does not help.
The fact that a valid adoption under HAMA is not acceptable for immigration purposes, unless supported by a guardianship order either under GWA or HMGA, is somewhat of a legal paradox.
In fact, it’s a pity that even after 60 years of Independence, India does not have a comprehensive adoption law applicable to all its citizens, irrespective of the religion they profess or the country they live in as NRIs, PIOs. .
In-country Adoption of Indian children is governed by In-country Guidelines-2004 while Inter-country Adoption procedure is governed by a set of Guidelines last issued on 14th February’2006. These Guidelines are a follow up of various directions given by the Supreme Court of India in L.K. Pandey vs. Union of India (WP No 1171 of 1982 and other cases). These Guidelines are amended and updated from time to time keeping in mind the welfare of such child. While CARA (Central Adoption Resource Authority) is engaged in clearing inter-country adoption of Indian children, its principal aim is to promote in-country adoption. In fact, CARA ensures that no Indian child is given for inter-country adoption without him/her having been considered by Indian families residing in India. CARA also provides financial assistance to various NGOs and Government run Homes to promote quality child care to such children and place them in domestic adoption.
Further, keeping in view the repeated guidelines of the Supreme Court of India in adoptions by foreign nationals to prevent trafficking of children and to protect their welfare, a uniform streamlined statutory procedure acceptable to foreign jurisdictions would also serve the purpose better to mitigate the plight of the adopted child.
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