Mar 3, 2023

Adopting a Child Directly from the Biological Mother: An Exception, Not the Norm

Recently, the Supreme Court of India allowed an interested couple to adopt a child from the biological mother directly. This was a deviation from the due process of adoption in India. The court was hearing a plea from an unmarried woman who wanted to medically terminate her pregnancy. Doctors had advised her against it , as it was an advanced pregnancy and could potentially endanger the life of the mother and the child. She was unwilling to retain custody of the child after delivery for multiple reasons, including social backlash. 

To strike a balance between the freedom of choice of the petitioner and the medical exigency, the Court passed directions to allow the adoption of the child. An interested couple who met all the eligibility criteria and was registered with the Central Adoption Agency (CARA) as per the law, could adopt the child right after delivery. The Court clarified that this order was passed given the exceptional facts of this case. It must not be relied upon to supplant the due process of adoption law. 

This week, let’s discuss the due process of adoption in India. 

What are the laws on adoption in India?

We have two main streams of law dealing with adoption in India. One is the general law of adoption under the Juvenile Justice Act (JJ), 2015. This applies to every citizen. The other is the personal laws on adoption applicable to Hindus, Buddhists, Sikhs or Jains under the Hindu Adoption and Maintenance Act (HAMA), 1956.

Currently, citizens who are eligible to adopt under the HAMA may choose to do so but the rest must follow the process given under the JJ Act. 

What is the process of adoption under the Juvenile Justice Act?

The Juvenile Justice Act makes it mandatory for anyone who wishes to adopt a child in India to register themselves online on CARA’s registration portal – Child Adoption Resource Information and Guidance System (CARINGS). Then they have to apply to their nearest Specialised Adoption Agency (SAA) or the District Child Protection Unit (DCPU) for conducting a Home Study. Upon the completion of the Home Study, the SAAs will refer a child, available for adoption, to the prospective adoptive parents. However, this process is only applicable for domestic adoptions and not inter country adoptions. 

Once a child is matched with the prospective adoptive parents, an Adoption Committee will assess their suitability. The child is given in pre-adoptive foster care to the prospective adoptive parents. Parallelly, the SAA applies to the District Magistrate or the Children’s Court of the concerned district for the adoption proceedings. The adoption proceedings must be completed within two months of such application. If the District Magistrate is satisfied that the request is credible and the procedure has been duly followed, they may grant the adoption order and provide a legal confirmation to the adoption.

The process of matching a child depends on the seniority of registration of the parents on CARINGS. 

Can you adopt without registering on CARINGS?

If you are eligible to adopt a child under the HAMA, registering on CARINGS would not be necessary. For every other citizen, adoption routed through CARA is the only legally recognised adoption. Failure to follow the due process of law as per CARA can lead to imprisonment up to 3 years and a fine amounting to up to Rs 1 lakh.

To know more about the process of adoption in India, read our explainer here. You may also contact the CARA Helpline at 1800 11 1311. 

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