Arshad Shaikh looks at the recommendations by a Parliamentary Committee on the Adoption laws of the country. There is a mismatch between the supply and demand of orphans for legal adoption in India. Hence, some suggest relaxing the adoption processes to meet the unfulfilled demand. There is also debate about who should govern and adjudicate adoption cases. Should it be the judiciary or the administration? One aspect is the prevalence of malpractices and inter-country adoption rackets. Adoption must be dealt with extreme sensitivity and empathy as it involves the future of young lives. Policymakers must decide. Is it better to stay put than rush headlong in simplifying adoption to cater to existing demand? Not an easy question to answer.
A child is considered an orphan after losing one or both parents. Adoption is a formal process by which a child is separated from his biological parents permanently. The child then becomes the lawful child of his/her adoptive parents, enjoying all the rights and privileges of a normal child of his/her parents. India has a supply deficit when it comes to meeting the demand for orphans that prospective parents wish to adopt.
As per data available in the public domain, there are less than 2,500 children ‘available’ for adoption in our country. A child may become ‘available’ or ‘legally free’ for adoption when the conditions set by the Juvenile Justice (Care and Protection of Children) Act, 2015, including the Juvenile Justice (Care and Protection of Children) Model Rules, 2016 and Adoption Regulations, 2017 are satisfied. Currently, these conditions and requirements are extremely stringent.
According to the 2020 Orphan Report by Istanbul-based IHH Humanitarian and Social Research Centre (INSAMER), India has around 3.1 crore orphans. The Annual Report 2020-21 of the Ministry of Women and Child Development says that about 2.56 lakh children were living without their parents in 7,164 Child Care Institutions (CCIs). After directives from the Supreme Court, 1.45 lakh children were reunited with their biological parents. However, more than a lakh remain abandoned.
A Lancet study on children affected by the Covid-19 pandemic estimates that nearly 19 lakh children were orphaned in India between March 2020 and October 2021. The government (as per the Baal Swaraj portal of The National Commission for Protection of Child Rights (NCPCR)) maintains that the figure is much lower i.e. around 1.53 lakh. The pandemic also resulted in a decline in the number of cumulative adoptions in 2020-21. According to Central Adoption Resource Authority (CARA), there were only 3,559 adoptions in that period, making it the lowest number of adoptions since 2013.
PARLIAMENTARY COMMITTEE SUGGESTIONS
The issue of adoption in our country was back in the news after the Parliamentary Standing Committee on Personnel, Public Grievances, and Law and Justice submitted its 118th report – “Review of Guardianship and Adoption Laws”. The committee was appointed in December 2020 by Parliament and headed by BJP MP Sushil Kumar Modi.
The committee noted, “the paradoxical situation where on one hand there are a large number of Parents willing to adopt a child, on the other, there are not many children available for adoption”.
The committee felt the need to harmonise the Hindu Adoptions and Maintenance Act (HAMA) and the Juvenile Justice Act. There should be a “uniform and comprehensive legislation on adoption, which is more transparent, accountable, verifiable, less bureaucratic and applicable to all irrespective of religion in order to make adoptions more easy and less cumbersome.”
The committee suggested that the new law should “provide for early de-institutionalisation of the newborn as it is in the best interest of children”. It also felt that the “adopted child should be entitled to a share in the property of his adoptive parents and not of his biological parents since adoption replaces biological parents with adoptive parents permanently.”
The panel favoured the adjudication process of adoption to be given back to the judiciary rather than keep it with the administration. It felt that “judges can best handle adoption”.
This is in contrast with the Juvenile Justice (Care and Protection of Children) Amendment Bill, 2021, which entrusts the District Magistrate (DM/Collector) with compliance by childcare institutions with the clauses of the Act. The standing committee suggested that DMs should chair a monthly meeting to ensure that orphans and abandoned children are presented before the Child Welfare Committee. This will aid in making them available for adoption without any delay.
The Committee recommended training for DMs, ADMs, and divisional commissioners and told the Ministry of Women and Child Development to carry out an assessment of the new system and submit a report to the Committee. A pertinent suggestion by the panel is to remove the word “illegitimate child” from the adoption law. It felt that no child is illegitimate irrespective of being born within or outside wedlock. Other suggestions made by the panel mandate allowing the LGBTQ community to be eligible for adopting orphans.
THE CHALLENGES IN ADOPTION
Other than the supply mismatch of orphans and the stringent conditions of the various laws in the country that make the adoption of orphans difficult in India, there are various other challenges related to orphans. One major challenge is that many parents return the adopted child to the authority from where they selected the child.
According to CARA (2017-19 data), 60% of all children who were returned were girls, 24% were children with special needs and many were over the age of six. This breakdown in the adoption process is precipitated because physically challenged and older kids take more time to adjust to the new homes of their adoptive parents. It is reported that the adoption of disabled children is on the decline every year.
Another huge task is the reformation of the entire adoption ecosystem. There must be a transformation of the system from being parent-centric to becoming child-centric. If the lawmakers feel that rules need to be relaxed to enable more adoptions, it is based on the assumption that the child has automatically received happiness once it moves from the care centre to the adoptive parent’s home. This assumption can turn out to be a patent fallacy.
It is difficult to fathom how an orphaned child must be feeling or thinking about life and people in his/her formative years. The sense of deprivation and being “othered” by society is too overwhelming for anybody to bear. Probably, that is the reason why caring for orphans has always been considered an act of virtue in all religions.
The low adoption numbers in India cannot be solely attributed to the rigidity of its legality. It is also due to the growing insensitivity and indifference in society towards the marginalised, needy, and underprivileged. If people learn to adopt orphans and absorb them into their own families, there would be no need for orphanages and “anath ashrams”.
Renowned psychiatrist Carl Jung touches the heartstrings with these lines – “I am an orphan, alone: nevertheless I am found everywhere. I am one, but opposed to myself. I am youth and old man at one and the same time. I have known neither father nor mother, because I have had to be fetched out of the deep like a fish, or fell like a white stone from heaven. In woods and mountains I roam, but I am hidden in the innermost soul of man. I am mortal for everyone, yet I am not touched by the cycle of aeons.”