Placing the entire scrutiny procedure in the domain of the executive may expedite the process, but will not take care of fundamental problems, such as missing children and illegal adoptions.
Why is Maneka Gandhi, the minister of women and child development, determined to shift the process of adoption of children out of the domain of the courts and place it under the control of an executive magistrate (district collector)?
Adoption, as defined in Section 2(2) of the Juvenile Justice Act, 2015, “means the process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of his adoptive parents with all the rights, privileges and responsibilities that are attached to a biological child”.
Severing of ties with an existing family and creating permanency in a new family requires due diligence and precaution. These concerns have been addressed by the Supreme Court of India, the Central Adoption Resource Authority (CARA) and the Ministry of Women and Child Development (MWCD) in the past. Obviously, Gandhi thinks differently and feels the judicial process is cumbersome and time-consuming and so believes that the executive magistrate will help expedite this process.
The minister, however, seems to overlook the fact that the overworked district collector is already busy with the task of implementing over 100 separate programmes. He/she is hardly in a position to be able to personally scrutinise and verify every document for adoption. The chances are that he/she will hand over the task of scrutinising this to juniors.
Also, at the district-level, the executive magistrate is a nomenclature that is used to cover several revenue officials, including even tehsildars. Will tehsildars now decide which child is to be given in adoption to which family?
Child rights activists working in the field of adoption have written to the MWCD warning that such a move could create havoc with the existing adoption procedures that are already in place.
Bharati Ali, co-director of HAQ, Centre for Child Rights and a signatory to the letter said, “The minister feels that the courts are delaying procedures but who is to ensure that an executive magistrate will hurry things up. Due consideration has to be given to the interests of a child according to their age, and the judiciary, while scrutinising each case, needs to ensure that no money has changed hands between the parents and the adoption agency”.
“I must emphasise that during the last two years, the courts have made an effort to expedite each case and in fact (adoption) delays have reduced substantially. The aim of this verification process is to ensure that there has been no buying and selling or other exploitation of kids,” said Ali.
Nilima Mehta, chairperson of the Child Welfare Committee, author of a book on adoption titled Ours by Choice, pointed out that “adoption of a child is a socio-legal process. The severance of the child’s rights with his biological parents and the creating of new set of rights involving family name, succession and inheritance follows a statutory legal process. All this is done by following a statutory legal process laid down by Juvenile Justice (Care and Protection) Act 2015”.
Mehta said that when severance is done through a civil court, then the adoption should also be done through a civil court, which carries more weight than a district collector. “A district collector draws power through the government whereas the civil courts entitle a judicial officer to oversee the entire adoption process,” she added.
“Adoption cannot be revoked. Ultimately, a DC will also follow the same process of adoption and if any of the parties concerned want to go into appeal, they will take their case before the judiciary,” she said, adding, “we don’t want to follow the Chinese model where adoption is being allowed by individuals. That is why all the child rights organisations have taken a unanimous stand against this move by the MWCD.”
Legal researcher Swagata Raha, who is also a signatory to the letter, believes this move is being introduced to expedite the entire adoption process.
“Court pendency is longer than four months, while people in the ministry want to bring down the waiting period to two months which is very, very ambitious. I think parents wanting to adopt are putting pressure on the minister and their voices are louder than those of the kids,” said Raha.
Raha, who adopted a child in 2016, said she did not face any hiccups while going through the adoption process. “The whole process was very smooth. It took us nine months to adopt the child, but I understand waiting has now increased to 18 months and more. The demand is high and there are not enough children. The question to be asked is: are there illegal adoptions taking place and why are these kids not entering the system?”
In an attempt to streamline the process of adoption, MWCD has made the application process online, under which the prospective parents need to upload all details, such as proof of residence, income etc. This was supposed to streamline the procedures but it has not quite worked that way, said child rights activists, citing a drop in the number of adoptions.
Gandhi told the Lok Sabha in 2015 that while in 2013-14, just under 4,000 children were placed for adoption, they were fewer than the 4,964 in 2012-13 and much fewer than 5,964 children in 2011-12. An RTI with the Central Adoption Resource Authority (CARA) has shown that 19,136 children were adopted within the country between 2010-13 and 1,866 kids were adopted in inter-country adoption for the same period.
This could be one of the key reasons why Gandhi is keen to reduce the waiting period for adoption.
The problem, however, is more complex. For one, the number of children available for adoption is reducing. There are 1,600-odd kids available for adoption against 7,700 parents who had applied to CARA as of March 2016.
One of the reasons for the drop in numbers is the growing black market for babies. Ali pointed out that “children are being adopted through nursing homes, hospitals and institutions that don’t figure in the adoption set-up at all.”
There are any number of alarming stories of babies from poor families being sold off to touts and middlemen because of delays in legal adoptions.
Pune-based Anjali Pawar, who heads the NGO Sakhee, has fought many battles against touts who buy children from poor parents and sell them at exorbitant rates within the country and abroad.
“Children are not commodities. Why is the MWCD doing away with all procedures…The court goes into every detail,” said Pawar.
Currently, foreign couples are required to pay an official fee of $5,000 to the agency from which they are adopting a child. In the black market, this figure can be $20,000 or even higher, says Pawar. Indian parents are required to pay Rs 46,000, out of which Rs 1,000 is for registration and Rs 5,000 for home study.
According to the National Crime Records Bureau (NCRB), 930 children were abandoned across India in 2013. This could be a massive under-estimation – by more than 10,000 times, according to statistics presented to the Supreme Court in a PIL filed in 2011 which estimates the figure to be closer to 11 million, 90% of them girls.
There are no official records on the number of children in orphanages, but ChildLine India Foundation, a Mumbai-based non-government organisation, believes the number of orphans in India are around 25 million. IndiaSpend, a journalistic data base, believes only 0.04% of the abandoned children end up getting adopted.
Several NGOs, therefore, strongly feel that before the government starts working on streamlining and simplifying the process, it needs to get clear statistic on the numbers of abandoned children and just how many of these get cleared for adoption. The Justice J.S. Verma Commission had put the number of missing children in India at one lakh kids a year. In Delhi alone, 18 children go missing every day with only few of them getting traced, according to NCRB.
Quick fix solutions do not necessarily work. By disinvesting adoption from the judicial process and placing it in the domain of the executive, the fundamental problems of missing children and illegal adoptions will not disappear.
The signatories to the letter sent to MWDC dated January 8, 2018, include Andal Damodaran, President, Indian Council For Child Welfare, Tamil Nadu & Former Chairperson, CARA, Bharti Ali and Enakshi Ganguly, HAQ: Centre for Child Rights, Delhi, Asha Bajpai, Professor, TISS, Mumbai, Bharti Sharma, child rights activist and former chairperson, CWC Delhi, Kiran Modi, Udayan Care, Nicole Rangel, Leher, Pam Rajput, Dean, Social Sciences, Punjab University and Sandhya Raju, Centre for Constitutional Rights Research and Advocacy, Cochin.
Rashme Sehgal is an author and a freelance journalist based in Delhi.