In India, except for the Hindu Adoption and Maintenance Act, 1956[1] and Juvenile Justice (Care and protection of children) Act, 2015[2], no other law directly governs the adoption procedure. To redress the voids in terms of being non-secular and filling the chasm of ambiguous provisions and after a nudging by the Apex Court in the case of Mr. Craig Allen Coates v. State through Indian Council for Child Welfare and Welfare Home for Children[3]. The Central Adoption Resource Authority (CARA) released a set of guidelines in 2011. These guidelines serve the extra-regulatory role over the process of inter-country and domestic adoption.

According to CARA, three classifications of adoptive children are recognized: children who are orphans and are already under the care of some specialized adoption agency or abandoned or surrendered. In addition, it is often argued that the guidelines encourage in-country adoption than inter-country adoptions, and it is subject to the condition and rehabilitative status of the adoptive child.

Recognition of International treaties, conventions
The CARA Guidelines were the first in many instances
It was the first forceful piece of regulation to give due recognition to international treaties and provisions and establish them as relevant to the Indian milieu. The same can be seen under rule 8(3) of the guidelines, which mentions that citizens of “countries that have ratified the Hague Convention on Inter-Country Adoption in 1993”[4] are eligible to adopt a child from India; this also extends to “Indian nationals living in countries that are not signatories to the Convention.”

It also lists out an “order of priority”[5] concerning inter-country adoptions, as follows:

1. Non Resident Indian (NRI)
2. Overseas Citizen of India (OCI)
3. Persons of Indian Origin (PIO)
4. Foreign Nationals

Along with this, the guidelines explicitly outline the role of “Indian diplomatic missions, foreign accredited agencies”[6]and “professional social workers” in guarding a child against adoptive maltreatment. “Rehabilitation” and “repatriation” alternatives are also contained in the guidelines in case the process is disrupted. However, this guideline seems impractical and far-fetched when even at the domestic level the care of a child is a matter of concern.

Competency to Adopt:
According to the CARA guidelines, “the Court shall allow the person to adopt- (i) irrespective of his/her marital status, (ii) irrespective of the number of living biological sons or daughters and (iii) to a childless couple.” [7]

Additionally, the guidelines emphasize the ‘stability’ of the ‘marital relationship’ and bar couples in a live-in relationship from adopting a child[8]. The ‘Prospective Adoptive Parents (PAPs)’ are also expected to have the necessary financial and social resources to facilitate the child's upbringing.

Integration of Agencies and adoption institutions
The ‘Specialized adoption agencies’ have been vested with a crucial role in the process of adoption under the CARA guidelines. Provisions have been incorporated to ensure maximum integration of the formalistic framework into the procedure made largely simplistic by religious laws. It helped circumvent issues around succession, inheritance etc. However, given that the nature of the guidelines is unenforceable, such benefits remain unavailable.

The ‘Specialized adoption agencies’[9] can also be promoted to agencies facilitating inter-country adoption if they possess the requisite infrastructure and child care services. However, such an investigation should be made stricter so that many agencies do not qualify as adoption agencies. Otherwise, it might lead to severe hassles like child trafficking and legal turmoil over succession issues.

Other features
The guidelines mention the adoption pre-requisites to adopt ‘children with special needs’[10] as well as ‘surrendered children’ along with ‘orphan and abandoned children’. This makes the guidelines diverse and all-encompassing.

The secular nature of the guidelines can be an embodiment of inspiration for other laws. Unlike the Hindu Adoption and Maintenance Act, the guidelines do not set religious barriers over the adoption process. Parents of any religion can adopt children of any religion. The criteria are only asked regarding the social and economic viability of the prospective adoptive parents to adopt the child.

As mentioned earlier, the guidelines provide for transnational adoption as well. This is subject to the child adjusting well to the foreign environment. However, an ‘identity crisis’ situation may creep in if the child is averse to such a set-up. In pushing for the proper growth and development of the child, the guidelines neglect some inevitable consequences. A lack of penal actions stems from its guiding nature. Thus, the relevant provisions from the guidelines must be taken up by the Juvenile Justice Act, which, although dealing with overlapping groups of children, lacks specific inevitable provisions.

The guidelines aim at making the adoption process more inclusive in terms of the household offered to the child along with the preparation of the parents for the process. Chapter III of the guidelines explicitly concerns with making the process of adoption more systematic right from the registration which his highly accessible and can simply be done on CARA’s website.

It suggests “pre-adoption counselling’’[11] of prospective parents as well as a dedicated “home study” and “follow-up visits.’’[12]

Conclusion
The guidelines make the adoption process extremely streamlined. However, the major drawback remains the un enforceability of the guidelines in terms of them not being binding.

We realize that by including a future-seeking vision and accommodating a holistic picture of the adoption process, the guidelines have much to offer in a concise, little package of suggestions. The laws that currently prevail in India to regulate adoptions lack certain features that can ease the burden for both- the authorities and the prospective parents, all the while ensuring the utmost well-being of the child. While punishments for any violations of the provisions under the guidelines should be made penal nature the screening process for adoption agencies must be made stricter. Lower courts should be made aware of these guidelines so that they are not complicit in worsening of the human rights situation of the child as well as the rights of the parents to adopt irrespective of their religion or marital status thus making the process of adoption uniform stringent and beneficial in nature and procedure.

End-Notes:

1. Hindu Adoption and Maintenance Act, 1956, No. 2, Acts of Parliament, 2016 (India).
2. Juvenile Justice (Care and protection of children) Act, 2015, No. 2, Acts of Parliament, 2016 (India).
3. Mr. Craig Allen Coates & Anr. vs State & Anr. on 31 August, 2009, Indiankanoon.org (2012), https://indiankanoon.org/doc/108886199/ (last visited Aug 22, 2022).
4.  Convention On Protection Of Children And Co-Operation In Respect Of Intercountry Adoption 1, (1993), Https://Assets.Hcch.Net/Docs/77e12f23-D3dc-4851-8f0b-050f71a16947.Pdf.
5. CARA guidelines, Section 8(6): “The following order of priority shall be followed in case of inter-country adoptions.”
6. CARA guidelines, Section 26: “Procedure for Inter-country Adoption as per the Hague Convention on Inter-country Adoption”
7. CARA guidelines, Section 5: “Person competent to adopt. - In accordance with the provisions of sub-section (6) of section 41, the Court may allow a child to be given in adoption:
   
   1. To an individual irrespective of his or her marital status; or
   2. To parents to adopt a child of the same sex irrespective of the number of living biological sons or daughters; or
   3. To a childless couple.
       
8. CARA guidelines, Section 6: “Additional Eligibility Criteria for Prospective Adoptive Parents (PAPs).
9. CARA guidelines, Section 7(1)(a): “The Indian PAPs habitually residing in India shall adopt a child only through a Government recognised adoption agency known as Specialised Adoption Agency.
    
10. CARA guidelines, Section 9: Adoption of Special Needs Children.
11. CARA guidelines, Chapter III, Section 19: “Pre-Adoption Counselling and Preparation of the PAP(s):
    1. In order to facilitate the PAPs to take appropriate decision, the concerned Specialised Adoption Agency shall provide pre-adoption counselling to them.
    2. Such agency shall also prepare the PAP(s) for the adoption and related process by providing them with all relevant information.
12. CARA guidelines, Chapter III, Section 24: Follow up visits and post-adoption services:
    
    1. The Specialised Adoption Agency shall carry out half yearly follow-up visits of the child from the time the child has been placed in pre-adoption foster care till a period of two years after the legal adoption.
    2. The copies of the follow-up reports of the children shall be submitted by the Specialised Adoption Agency to SARA or ACA.
    3. In cases of disruption of adoption, the Specialised Adoption Agency shall make efforts for alternate rehabilitation of the child.