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High Court ruling on adoption of children

Staff Reporter

Says it is not safe to rely entirely on biological parents' wisdom


Petitioners want to adopt the fourth girl child of an Indian family at Oothukottai

CARA directed to conduct a home study


MADURAI: “Children are not properties of their parents so as to entitle the latter to have an absolute dominance over the former. In a country where abject poverty drives a few families to sell their children for beggary, forced labour or prostitution, it is not safe to rely entirely upon the wisdom of the biological parents to give their children in adoption or foster care to foreigners,” the Madras High Court has said.

Justice V. Ramasubramanian made the observation while passing interim orders on a petition filed by a German couple seeking exemption from procedures required to be followed in cases of inter-country adoption on the ground that the norms need to be followed only while adopting abandoned children and not in cases of adoption with the consent of biological parents.

The petitioners wanted to adopt the fourth girl child of an Indian family at Oothukottai in Tiruvallur district with the consent of the biological parents.

However, they neither possessed a Home Study Report (HSR) regarding their economic, social, familial and physical status nor were they sponsored by a recognised adoption agency as required under inter-country adoption laws.

Apex court verdict cited

Stating that they had come in contact with the family during their visit to India, the couple relied upon a Supreme Court judgment in Smt. Anokha Vs. State of Rajasthan (2004) wherein it was held that procedural safeguards need not be stressed in cases of adoption with the consent of the biological parents who would be the best persons to decide whether to give their child in adoption to foreigners or not.

However, not in agreement with the views expressed by the apex court, Mr. Justice Ramasubramanian pointed out that the judgment in the Anokha case was found to be incompatible with the Hague Adoption Convention according to a book titled ‘Every Child Deserves a Loving Family' published by the Central Adoption Resource Authority (CARA) of the Union Ministry of Women and Child Development.

“This (Supreme court judgment) cannot be used as a precedent since the Hague Convention on Protection of Children and Cooperation in Respect of Inter-country Adoption, ratified by the Government of India, does not recognise any case of direct adoption and the receiving country will not issue permission under Article 5/17 of the Convention to agree to such kind of adoption without the involvement of recognised agencies and authorities,” the book states.

Social picture

Doling out extensive statistics about millions of street children, child labourers, children forced into commercial sex trade, deaths due to gender discrimination and illiteracy, the judge said: “Even if one does not give undue weight to these statistics, the social picture presented by it cannot be ignored in toto. I think that a blanket exemption of biological parents from the safeguards prescribed in other inter-country adoptions may not be in the interest of children to whom the court owes an obligation as a Court of Wards…

“As a matter of fact, adoption is evolved as a method of providing alternative care for children deprived of a healthy and happy environment. Therefore, it is accepted as a mode of enforcement of the fundamental rights of the child and hence it cannot be looked at as an exercise of the rights of the biological parents over the child.”

Referring to various other international conventions on the issue, the United Nations Guidelines for the Alternative Care of Children adopted by the General Assembly on February 24 as well as the Juvenile Justice (Care and Protection of Children) Act, 2000, the judge said, “The primary responsibility of providing care and protection to children is that of their birth family. Since the child has a fundamental right to be protected against any kind of exploitation, the biological parents cannot be held to have an absolute and unfettered right to give their children in adoption or for foster care to foreign nationals.”

Personal Law of Hindus

Agreeing that the Personal Law of Hindus has always recognised the right of the biological parents to give their child in adoption, the judge said that such recognition was a contrivance to prevent the interruption of succession.

“The origin of this institution amongst the Hindus was attributed to the religious belief or spiritual efficacy of the possession of a son and a belief that by leaving a male issue in this world, they would save themselves from the torments in the next. Consequently there was to some extent an element of protection in the form of succession to property.

Therefore, the same cannot, as on date, enable the biological parents to contend that their right to give their children in adoption to foreign nationals is absolute and unfettered.

“Even decisions taken by courts prove, at times, to be wrong. Therefore, the decision taken by the biological parents, however bona fide, need not always be an informed decision or a decision which would stand the test of time. Hence, the minimum safeguard that could be adopted is to call for a HSR, if not a sponsorship through an agency.”

In three months

The judge directed CARA to engage the services of a recognised agency in Germany to conduct a HSR in the present case and submit the report before the court within three months.

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