tition CRL No 1171 of 1982
Under article 32 of the Constitution of India
Petitioner in person
Social Welfare
Miss Kamini Jaiswal for Indian Council of Social Welfare
JB Dadachanji  Co for Indian Council of Child Welfare and Swedish Embassy
Dr NM Ghatate for all God s Children Inc Arizone USA PH Parekh for Maharashtra State Women s Council of Child Welfare Bombay and for Enfants de L espoir
804 PK Chakeravorty for Legal Aid Service West Bengal
Mrs Manik Karanjawala for Indian Associations for Promotion of Adoption
Mrs Urmila Kapur for SOS Children s Village of India
Kailash Vasdev for Missionary of Charity Calcutta
Baldev Raj Respondent in person
GM Coelho Bar at Law for Enfant s du Mande France Miss Rani Jethamalani for Kuanyin Charitable Trust
BM Bageria for Terre Des Hommes India Society
Sukumar Ghose for Mission of Hope India Society Calcutta
SK Mehta for Netherlands Inter Country Child Welfare Oraganisation
Parijot Sinha for society for International Child Welfare
Kailash Vasdev for Bhavishys
The Judgment of the Court was delivered by BHAGWATI J
This writ petition has been initiated on the basis of a letter addressed by one Laxmi Kant Pandey an advocate practising in this Court complaining of malpractices indulged in by social organisations and voluntary agencies engaged in the work of offering Indian children in adoption to foreign parents
The letter referred to a press report based on empirical investigation carried out by the staff of a reputed foreign magazine called The Mail and alleged that not only Indian children of tender age are under the guise of adoption exposed to the long horrendous journey to distant foreign countries at great risk to their lives but in cases where they survive and where these children are not placed in the Shelter and Relief Homes they in course of time become beggars or prostitutes for want of proper care from their alleged foreign foster parents
 The petitioner accordingly sought relief restraining Indian based private agencies from carrying out further activity of routing children for adoption abroad and directing the Govern 805 ment of India the Indian Council of Child Welfare and the Indian Council of Social Welfare to carry out their obligations in the matter of adoption of Indian children by foreign parents
This letter was treated as a writ petition and by an Order dated 1st September 1982 the Court issued notice to the Union of India the Indian Council of Child Welfare and the Indian Council of Social Welfare to appear in answer to the writ petition and assist the Court in laying down principles and norms which should be followed in determining whether a child should be allowed to be adopted by foreign parents and if so the procedure to be followed for that purpose with the object of ensuring the welfare of the child
The Indian Council of Social Welfare was the first to file its written submissions in response to the notice issued by the Court and its written submission filed on 30th September 1982 not only carried considerable useful material bearing on the question of adoption of Indian children by foreign parents but also contained various suggestions and recommendations for consideration by the Court in formulating principles and norms for permitting such adoptions and laying down the procedure for that purpose
We shall have occasion to refer to this large material placed before us as also to discuss the various suggestions and recommendations made in the written submission by the Indian Council of Social Welfare when we take up for consideration the various issues arising in the writ petition
Suffice it to state for the present that the written submission of the Indian Council of Social Welfare is a well thought out document dealing comprehensively with various aspects of the problem in its manifold dimensions
When the writ petition reached hearing before the Court on 12th October 1982 the only written submission filed was that the Indian Council of Social Welfare and neither the Union of India nor the Indian Council of Child Welfare had made any response to the notice issued by the Court
But there was a telegram received from a Swedish Organisation called Barnen Framfoer Allt Adoptioner intimating to the Court that this Organisation desired to participate in the hearing of the writ petition and to present proper material before the Court
SOS Children s Villages of India also appeared through their counsel Mrs Urmila Kapoor and applied for being allowed to intervene at the hearing of the writ petition so that they could made their submissions on the question of adoption of Indian Children by foreign parents
Since SOS Children s Villages of India is admittedly an organisation concerned with welfare of children the Court by an Order dated 12th October 1982 allowed them to intervene and to make 806 their submissions before the Court
The Court also by the same Order directed that the Registry may address a communication to Barnen Framfoer Allt Adoptioner informing them about the adjourned date of hearing of the writ petition and stating that if they wished to present any material and make their submissions they could do so by filing an affidavit before the adjourned date of hearing
The Court also directed the Union of India to furnish before the next hearing of the writ petition the names of any Indian Institutions or Organisations other than the Indian Council of Social Welfare and the Indian Council of Child Welfare which are engaged or involved in offering Indian children for adoption by foreign parents and observed that if the Union of India does not have this information they should gather the requisite information so far as it is possible for them to do so and to make it available to the Court
The Court also issued a similar direction to the Indian Council of Child Welfare Indian Council of Social Welfare and SOS Children s Villages of India
There was also a further direction given in the same Order to the Union of India the Indian Council of Child Welfare the Indian Council of Social Welfare and the SOS Children s Villages of India to supply to the Court information in regard to the names and particulars of any foreign agencies which are engaged in the work of finding Indian children for adoption for foreign parents
The writ petition was adjourned to 9th November 1982 for enabling the parties to carry out these directions
It appears that the Indian Council of Social Welfare thereafter in compliance with the directions given by the Court filed copies of the Adoption of Children Bill 1972 and the adoption of Children Bill 1980
The adoption of Children Bill 1972 was introduced in the Rajya Sabha sometime in 1972 but it was subsequently dropped presumably because of the opposition of the Muslims stemming from the fact that it was intended to provide for a uniform law of adoption applicable to all communities including the Muslims
It is a little difficult to appreciate why the Muslims should have opposed this Bill which merely empowered a Muslim to adopt if he so wished it had no compulsive force requiring a Muslim to act contrary to his religious tenets it was merely an enabling legislation and if a Muslim felt that it was contrary to his religion to adopt he was free not to adopt
But in view of the rather strong sentiments expressed by the members of the Muslim Community and with a view not to offend their religious susceptibilities the Adoption of Children Bill 1980 which was introduced in the Lok 807 Sabha eight years later on 16th December 1980 contained an express provision that it shall not be applicable to Muslims
Apart from this change in its coverage the Adoption of Children Bill 1980 was substantially in the same terms as the Adoption of Children Bill 1972
The Adoption of Children Bill 1980 has unfortunately not yet been enacted into law but it would be useful to notice some of the relevant provisions of this Bill in so far as they indicate what principles and norms the Central Government regarded as necessary to be observed for securing the welfare of children sought to be given in adoption to foreign parents and what procedural safeguards the Central Government thought were essential for securing this end
Clauses 23 and 24 of the Adoption of Children Bill 1980 dealt with the problem of adoption of Indian children by parents domiciled abroad and in so far as material they provided as follows 23 1 Except under the authority of an order under section 24 it shall not be lawful for any person to take or send out of India a child who is a citizen of India to any place outside India with a view to the adoption of the child by any person
2 Any person who takes or sends a child out of India to any place outside India in contravention of sub section 1 or makes or takes part in any arrangements for transferring the care and custody of a child to any person for that purpose shall be punishable with imprisonment for a term which may extend to six months or with fine or with both
24 1 If upon an application made by a person who is not domiciled in India the district court is satisfied that the applicant intends to adopt a child under the law of or within the country in which he is domiciled and for that purpose desires to remove the child from India either immediately or after an interval the court may make an order in this section referred to as a provisional adoption order authorising the applicant to remove the child for the purpose aforesaid and giving to the applicant the care and custody of the child pending his adoption as aforesaid Provided that no application shall be entertained 808 unless it is accompanied by a certificate by the Central Government to the effect that i the applicant is in its opinion a fit person to adopt the child ii the welfare and interests of the child shall be safeguarded under the law of the country of domicile of the applicant iii the applicant has made proper provision by way of deposit or bond or otherwise in accordance with the rules made under this Act to enable the child to be repatriated to India should it become necessary for any reason
2 The provisions of this Act relating to an adoption order shall as far as may be apply in relation to a provisional adoption order made under this section
The other clauses of the Adoption of Children Bill 1980 were sought to be made applicable in relation to a provisional adoption order by reason of sub clause 3 of clause 24
The net effect of this provision if the Bill were enacted into law would be that in view of clause 17 no institution or organisation can make any arrangement for the adoption of an Indian child by foreign parents unless such institution or organisation is licensed as a social welfare institution and under Clause 21 it would be unlawful to make or to give to any person any payment or reward for or in consideration of the grant by that person of any consent required in connection with the adoption of a child or the transfer by that person of the care and custody of such child with a view to its adoption or the making by that person of any arrangements for such adoption
Moreover in view of Clause 8 no provisional adoption order can be made in respect of an Indian child except with the consent of the parent or guardian of such child and if such child is in the care of an institution except with the consent of the institution given on its behalf by all the persons entrusted with or in charge of its management but the District Court can dispense with such consent if it is satisfied that the person whose consent is to be dispensed with has abandoned neglected or persistently ill treated the child or has persistently failed without reasonable cause to discharge his obligation as parent or guardian or can not be found or is incapable of giving consent or is withholding consent unreasonably
When a 809 provisional adoption order is made by the District Court on the application of a person domiciled abroad such person would be entitled to obtain the care and custody of the child in respect of which the order is made and to remove such child for the purpose of adopting it under the law or within the country in which he is domiciled
These provisions in the Adoption of Children Bill 1980 will have to be borne in mind when we formulate the guidelines which must be observed in permitting an Indian child to be given in adoption to foreign parents
Besides filing copies of the Adoption of Children Bill 1972 and the Adoption of Children Bill 1980 the Indian Council of Social Welfare also filed two lists one list giving names and particulars of recognised agencies in foreign countries engaged in facilitating procurement of children from other countries for adoption in their own respective countries and the other list containing names and particulars of institutions and organisations in India engaged in the work of offering and placing Indian children for adoption by foreign parents
The Writ Petition thereafter came up for hearing on 9th November 1982 when several applications were made by various institutions and organisations for intervention at the hearing of the writ petition
Since the questions arising in the writ petition were of national importance the Court thought that it would be desirable to have assistance from whatever legitimate source it might come and accordingly by an order dated 9th November 1982 the Court granted permission to eight specified institutions or organisations to file affidavits or statements placing relevant material before the Court in regard to the question of adoption of Indian children by foreign parents and directed that such affidavits or statements should be filed on or before 27th November 1982
The Court also issued notice of the writ petition to the State of West Bengal directing it to file its affidavit or statement on or before the same date
The Court also directed the Superintendent of Tees Hazari courts to produce at the next hearing of the writ petition quarterly reports in regard to the orders made under the Guardian and Wards Act 1890 entrusting care and custody of Indian children to foreign parents during the period of five years immediately prior to 1st October 1982
Since the Union of India had not yet filed its affidavit or statement setting out what was the attitude adopted by it in regard to this question the Court directed the Union of India to file its affidavit or statement within the same time as the others
The Court then adjourned the hearing of the writ petition to 1st December 1982 in order that the record may be completed by that time
810 Pursuant to these directions given by the Court various affidavits and statements were filed on behalf of the Indian Council of Social Welfare Enfants Du Monde Missionaries of Charity Enfants De L s Espoir Indian Association for promotion of Adoption Kuan yin Charitable Trust Terre Des Homes India Society Maharashtra State Women s Council Legal Aid Services West Bengal SOS Children s Villages of India Bhavishya International Union for Child Welfare and the Union of India
These affidavits and statements placed before the Court a wealth of material bearing upon the question of adoption of Indian children by foreign parents and made valuable suggestions and recommendations for the consideration of the Court
These affidavits and statements were supplemented by elaborate oral arguments which explored every facet of the question involving not only legal but also sociological considerations
We are indeed grateful to the various participants in this inquiry and to their counsel for the very able assistance rendered by them in helping us to formulate principles and norms which should be observed in giving Indian children in adoption to foreign parents and the procedure that should be followed for the purpose of ensuring that such inter country adoptions do not lead to abuse maltreatment or exploitation of children and secure to them a healthy decent family life
It is obvious that in a civilized society the importance of child welfare cannot be over emphasized because the welfare of the entire community its growth and development depend on the health and well being of its children
Children are a supremely important national asset and the future well being of the nation depends on how its children grow and develop
The great poet Milton put it admirably when he said Child shows the man as morning shows the day and the Study Team on Social Welfare said much to the same effect when it observed that the physical and mental health of the nation is determined largely by the manner in which it is shaped in the early stages
The child is a soul with a being a nature and capacities of its own who must be helped to find them to grow into their maturity into fulness of physical and vital energy and the utmost breadth depth and height of its emotional intellectual and spiritual being otherwise there cannot be a healthy growth of the nation
Now obviously children need special protection because of their tender age and physique mental immaturity and incapacity to look after themselves
That is why there is a growing realisation in every part of the globe that children must be brought up in an atmosphere of love and affection 811 and under the tender care and attention of parents so that they may be able to attain full emotional intellectual and spiritual stability and maturity and acquire self confidence and self respect and a balanced view of life with full appreciation and realisation of the role which they have to play in the nation building process without which the nation cannot develop and attain real prosperity because a large segment of the society would then be left out of the developmental process
In India this consciousness is reflected in the provisions enacted in the Constitution
Clause 3 of Article 15 enables the State to make special provisions inter alia for children and Article 24 provides that no child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment
Clauses e and f of Article 39 provide that the State shall direct its policy towards securing inter alia that the tender age of children is not abused that citizens are not forced by economic necessity to enter avocations unsuited to their age and strength and that children are given facility to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment
These constitutional provisions reflect the great anxiety of the constitution makers to protect and safeguard the interest and welfare of children in the country
The Government of India has also in pursuance of these constitutional provisions evolved a National Policy for the Welfare of Children
This Policy starts with a goal oriented perambulatory introduction The nation s children are a supremely important asset
Their nurture and solicitude are our responsibility
Children s programme should find a prominent part in our national plans for the development of human resources so that our children grow up to become robust citizens physically fit mentally alert and morally healthy endowed with the skills and motivations needed by society
Equal opportunities for development to all children during the period of growth should be our aim for this would serve our larger purpose of reducing inequality and ensuring social justice
 The National Policy sets out the measures which the Government of India proposes to adopt towards attainment of the objectives set out in the perambulatory introduction and they include measures designed to protect children against neglect cruelty and exploitation 812 and to strengthen family ties so that full potentialities of growth of children are realised within the normal family neighbourhood and community environment
 The National Policy also lays down priority in programme formation and it gives fairly high priority to maintenance education and training of orphan and destitute children
There is also provision made in the National Policy for constitution of a National Children s Board and pursuant to this provision the Government of India has Constituted the National Children s Board with the Prime Minister as the chair person
It is the function of the National Children s Board to provide a focus for planning and review and proper coordination of the multiplicity of services striving to meet the needs of children and to ensure at different levels continuous planning review and coordination of all the essential services
The National Policy also stresses the vital role which the voluntary organisations have to play in the field of education health recreation and social welfare services for children and declares that it shall be the endeavour of State to encourage and strengthen such voluntary organisations
There has been equally great concern for the welfare of children at the international level culminating in the Declaration of the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1959
The Declaration in its Preamble points out that the child by reason of his physical and mental immaturity needs special safeguards and care including appropriate legal protection before as well as after birth and that mankind owes to the child the best it has to give and proceeds to formulate several Principles of which the following are material for our present purpose PRINCIPLE 2 The child shall enjoy special protection and shall be given opportunities and facilities by law and by other means to enable him to develop physically mentally morally spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity
In the enactment of laws for this purpose the best interests of the child shall be the paramount consideration
 PRINCIPLE 3 The child shall be entitled from his birth to a name and a nationality
PRINCIPLE 6 The Child for the full and harmonious development of his personality needs love and under 813 standing
He shall wherever possible grow up in the care and under the responsibility of his parents and in any case in an atmosphere of affection and of moral and material security a child of tender years shall not save in exceptional circumstances be separated from his mother
Society and the public authorities shall have the duty to extend particular care to children without a family and to those without adequate means of support
Payment of State and other assistance towards the maintenance of children of large families is desirable
PRINCIPLE 9 The child shall be protected against all forms of neglect cruelty and exploitation
He shall not be the subject of traffic in any form
PRINCIPLE 10 The child shall be protected from practices which may foster racial religious and any other form of discrimination
He shall be brought up in a spirit of understanding tolerance friendship among peoples peace and universal brotherhood and in full consciousness that his energy and talents should be devoted to the service of his fellow men
 Every child has a right to love and be loved and to grow up in an atmosphere of love and affection and of moral and material security and this is possible only if the child is brought up in a family
The most congenial environment would of course be that of the family of his biological parents
But if for any reason it is not possible for the biological parents or other near relative to look after the child or the child is abandoned and it is either not possible to trace the parents or the parents are not willing to take care of the child the next best alternative would be to find adoptive parents for the child so that the child can grow up under the loving care and attention of the adoptive parents
The adoptive parents would be the next best substitute for the biological parents
The practice of adoption has been prevalent in Hindu Society for centuries and it is recognised by Hindu Law but in a large number of other countries it is of comparatively recent origin while in the muslim countries it is totally unknown
Amongst Hindus it is not merely ancient Hindu Law which recognises the practice of adoption but it has also been legislatively recognised in the Hindu Adoption and Maintenance Act 1956
The Adoption of Children Bill 1972 sought to provide for a uniform law of adoption applicable to all communities includ 814 ing the muslims but as pointed out above it was dropped owing to the strong opposition of the muslim community
The Adoption of Children Bill 1980 is now pending in Parliament and if enacted it will provide a uniform law of adoption applicable to all communities in India excluding the muslim community
Now when the parents of a child want to give it away in adoption or the child is abandoned and it is considered necessary in the interest of the child to give it in adoption every effort must be made first to find adoptive parents for it within the country because such adoption would steer clear of any problems of assimilation of the child in the family of the adoptive parents which might arise on account of cultural racial or linguistic differences in case of adoption of the child by foreign parents
If it is not possible to find suitable adoptive parents for the child within the country it may become necessary to give the child in adoption to foreign parents rather than allow the child to grow up in an orphanage or an institution where it will have no family life and no love and affection of parents and quite often in the socioeconomic conditions prevailing in the country it might have to lead the life of a destitute half clad half hungry and suffering from malnutrition and illness
Paul Harrison a free lance journalist working for several UN Agencies including the International Year of the Child Secretariat points out that most third world children suffer because of their country s lack of resources for development as well as pronounced inequalities in the way available resources are distributed and they face a situation of absolute material deprivation
He proceeds to say that for quite a large number of children in the rural areas poverty and lack of education of their parents combined with little or no access to essential services of health sanitation and education prevent the realisation of their full human potential making them more likely to grow up uneducated unskilled and unproductive and their life is blighted by malnutrition lack of health care and disease and illness caused by starvation impure water and poor sanitation
What Paul Harrison has said about children of the third world applies to children in India and if it is not possible to provide to them in India decent family life where they can grow up under the loving care and attention of parents and enjoy the basic necessities of life such as nutritive food health care and education and lead a life of basic human dignity with stability and security moral as well as material there is no reason why such children should not be allowed to be given in adoption to foreign parents
Such adoption would be quite consistent with our National Policy on Children because it would 815 provide an opportunity to children otherwise destitute neglected or abandoned to lead a healthy decent life without privation and suffering arising from poverty ignorance malnutrition and lack of sanitation and free from neglect and exploitation where they would be able to realise full potential of growth
But of course as we said above every effort must be made first to see if the child can be rehabilitated by adoption within the country and if that is not possible then only adoption by foreign parents or as it is some time called inter country adoption  should be acceptable
This principle stems from the fact that inter country adoption may involve trans racial trans cultural and trans national aspects which would not arise in case of adoption  within the country and the first alternative should therefore always be to find adoptive parents for the child within the country
In fact the Draft Guidelines of Procedures Concerning Inter Country Adoption formulated at the International Council of Social Welfare Regional Conference of Asia and Western Pacific held in Bombay in 1981 and approved at the Workshop on Inter Country Adoption held in Brighten UK on 4th September 1982 recognise the validity of this principle in clause 31 which provides Before any plans are considered for a child to be adopted by a foreigner the appropriate authority or agency shall consider all alternatives for permanent family care within the child s own country
Where however it is not possible to find placement for the child in an adoptive family within the country we do not see anything wrong if a home is provided to the child with an adoptive family in a foreign country
The Government of India also in the affidavit filed on its behalf by Miss B Sennapati Programme Officer in the Ministry of Social Welfare seems to approve of inter country adoption for Indian children and the proceedings of the Workshop on Inter Country Adoption held in Brighten UK on 4th September 1982 clearly show that the Joint Secretary Ministry of Social Welfare who represented the Government of India at the Workshop affirmed support of the Indian Government to the efforts of the international organisations in promoting measures to protect welfare and interests of children who are adopted aboard
 But while supporting inter country adoption it is necessary to bear in mind that the primary object of giving the child in adoption being the welfare of the child great care has to be exercised in permitting the child to be given in adoption to foreign parents lest the child may be neglected or abandoned by the adoptive parents in 816 the foreign country or the adoptive parents may not be able to provide to the child a life of moral or material security or the child may be subjected to moral or sexual abuse or forced labour or experimentation for medical or other research and may be placed in a worse situation than that in his own country
The Economic and Social Council as also the Commission for Social Development have therefore tried to evolve social and legal principles for the protection and welfare of children given in inter country adoption
The Economic and Social Council by its Resolution 1925 LVIII requested the Secretary General of the United Nations to convene a group of Experts with relevant experts with relevant experience of family and child welfare with the following mandate a To prepare a draft declaration of social and legal principles relating to adoption and foster placement of children nationally and internationally and to review and appraise the recommendations and guidelines incorporated in the report of the Secretary General and the relevant material submitted by Governments already available to the Secretary General and the regional commissions
b To draft guidelines for the use of Governments in the implementation of the above principles as well as suggestions for improving procedures within the context of their social development including family and child welfare programmes
 Pursuant to this mandate an expert Group meeting was convened in Geneva in December 1978 and this Expert Group adopted a Draft declaration on social and legal principles relating to the protection and welfare of children with special reference of foster placement and adoption nationally and internationally
The Commission for Social Development considered the draft Declaration at its 26th Session and expressed agreement with its contents and the Economic and Social Council approved the draft Declaration and requested the General Assembly to consider it in a suitable manner
None of the parties appearing could give us information whether any action has been taken by the General Assembly
But the draft Declaration is a very important document in as much it lays down certain social and legal principles which must be observed in case of inter country adoption
Some of the relevant principles set out 817 in the draft Declaration may be referred to with advantage article 2
It is recognised that the best child welfare is good family welfare
When biological family care is unavailable or in appropriate substitute family care should be considered
Every child has a right to a family
Children who cannot remain in their biological family should be placed in foster family or adoption in preference to institutions unless the child s particular needs can best be met in a specialized facility
Children for whom institutional care was formerly regarded as the only option should be placed with families both foster and adoptive
The primary purpose of adoption is to provide a permanent family for a child who cannot be cared for by hisher biological family
In considering possible adoption placements those responsible for the child should select the most appropriate environment for the particular child concerned
Sufficient time and adequate counselling should be given to the biological parents to enable them to reach a decision on their child s future recognizing that it is in the child s best interest to reach this decision as early as possible
Legislation and services should ensure that the child becomes an integral part of the adoptive family
The need of adult adoptees to know about their background should be recognized
Governments should determine the adequacy of their national services for children and recognize those children whose needs are not being met by existing services
For some of these children inter country adoption may be considered as a suitable means of providing them with a oily
In each country placements should be made 818 through authorized agencies competent to deal with inter country adoption services and providing the same safeguards and standards as are applied in national adoptions
Proxy adoptions are not acceptable in consideration of the child s legal and social safety
No adoption plan should be considered before it has been established that the child is legally free for adoption and the pertinent documents necessary to complete the adoption are available
All necessary consents must be in a form which is legally valid in both countries
It must be definitely established that the child will be able to immigrate into the country of the prospective adopters and can subsequently obtain their nationality
In inter country adoptions legal validation of the adoption should be assured in the countries involved
The child should at all times have a name nationality and legal guardian
 Thereafter at the Regional Conference of Asia and Western Pacific held by the International Council on Social Welfare in Bombay in 1981 draft guidelines of procedure concerning inter country adoption were formulated and as pointed out above they were approved at the Workshop held in Brighton UK on 4th September 1982
These guidelines were based on the Draft Declaration and they are extremely relevant as they reflect the almost unanimous thinking of participants from various countries who took part in the Regional Conference in Bombay and in the Workshop in Brighton UK There are quite a few of these guidelines which are important and which deserve serious consideration by us 14
In all inter country adoption arrangements the welfare of the child shall be prime consideration
Biological Parents 22
When the biological parents are known they shall be offered social work services by professionally qualified workers or experienced personnel who are supervised by such qualified workers before and after the birth of the child
819 23
These services shall assist the parents to consider all the alternatives for the child s future
Parents shall not be subject to any duress in making a decision about adoption
No commitment to an adoption plan shall be permitted before the birth of the child
After allowing parents a reasonable time to reconsider any decision to relinquish a child for adoption the decision should become irrevocable
If the parents decide to relinquish the child for adoption they shall be helped to understand all the implications including the possibility of adoption by foreigners and of no further contact with the child
Parents should be encouraged where possible to provide information about the child s background and development and their own health
It is the responsibility of the appropriate authority or agency to ensure that when the parents relinquish a child for adoption all of the legal requirements are met
If the parents state a preference for the religious up bringing of the child these wishes shall be respected as far as possible but the best interest of the child will be the paramount consideration
If the parents are not known the appropriate authority or agency in whose care the child has been placed shall endeavour to trace the parents and ensure that the above services are provided before taking any action in relation to adoption of the child
The Child 31
Before any plans are considered for a child to be adopted by foreigners the appropriate authority or agency shall consider all alternatives for permanent family care within the child s own country
A child study report shall be prepared by professional workers or experienced personnel who are supervised by such qualified workers of an appropriate authority or agency to provide information which will form a basis for the selection of prospective adopters for the child 820 assist with the child s need to know about his original family at the appropriate time and help the adoptive parents understand the child and have relevant information about himher
33 As far as possible the child study report shall include the following 331
Identifying information supported where possible by documents
332
Information about original parents including their health and details of the mother s pregnancy and the birth
333
Physical intellectual and emotional development
334
Health report
335
Recent photograph
336
Present environment category of care Own home foster home institution etc relationships routines and habits
337
Social Worker s assessment and reasons for suggesting inter country adoption
Brothers and sisters and other children who have been cared for as siblings should not be separated by adoption placement except for special reasons
When a decision about an adoption placement is finalised adequate time and effort shall be given to preparation of the child in a manner appropriate to hisher age and level of development
Information about the child s new country and new home and counselling shall be provided by a skilled worker
a Before any adoption placement is finalized the child concerned shall be consulted in a manner appropriate to hisher age and level of development
When older children are placed for adoption the adoptive parents should be encouraged to come to the child s country of origin to meet himher there learn 821 personally about hisher first environment and escort the child to its new home
Adoptive Parents 43
In addition to the usual capacity for adoptive parenthood applicants need to have the capacity to handle the trans racial trans cultural and trans national aspects of inter country adoptions
A family study report shall be prepared by professional worker or experienced personnel who are supervised by such qualified workers to indicate the basis on which the applicants were accepted as prospective adopters
It should include an assessment of the parents  capacity to parent a particular type of child and provide relevant in formation for other authorities such as Courts
The report on the family study which must be made in the community where the applicants are residing shall include details of the following 451
Identifying information about parents and other members of the family including any necessary documentation
452
Emotional and intellectual capacities of prospective adopters and their motivation to adoption
453
Relationship material family relatives friends community 454
Health
455
Accommodation and financial position
456
Employment and other interests
457
Religious affiliations andor attitude
458
Capacity for adoptive parenthood and details of child preferred age sex degree of disability
459
Support available from relatives friends community
4510
Social worker s assessment and details of adoption authority s approval
822 4511
Recent photograph of family
Adoption Authorities and Agencies 51
Inter country adoption arrangements should be made only through Government adoption authorities or agencies recognised by them in both sending and receiving countries
They shall use experienced staff with professional social work education or experienced personnel supervised by such qualified workers
The appropriate authority or agency in the child s country should be informed of all proposed inter country adoptions and have the opportunity to satisfy itself that all alternatives in the country have been considered and that inter country adoption is the optimal choice of care for the child
Before any inter country adoption plan is considered the appropriate authority or agency in the child s country should be responsible for establishing that the child is legally free for adoption and that the necessary documentation is legally valid in both countries
Approval of inter country adoption applicants is a responsibility of the appropriate authorities or agencies in both sending and receiving countries
An application to adopt a child shall not be considered by a sending country unless it is forwarded through the appropriate authority or agency in the receiving country
The appropriate authority or agency in both countries shall monitor the reimbursement of costs involved in inter country adoption to prevent profiteering and traffic king in children
XX XX XX XX 57
When a child goes to another country to be adopted the appropriate authority or agency of the receiving country shall accept responsibility for supervision of the placement and for the provision of progress reports for the adoption authority or agency in the sending country for the period agreed upon
823 58
In cases where the adoption is not to be finalised in the sending country the adoption authority in the receiving country shall ensure that an adoption order is sought as soon as possible but not later than 2 years after placement
It is the responsibility of the appropriate authority or agency in the receiving country to inform the appropriate authority or agency in the sending country of the details of the adoption order when it is granted
581
In cases where the adoption is to be finalised in the sending country after placement it is the responsibility of the appropriate authority or agency in both the sending and receiving country to ensure that the adoption is finalised as soon as possible
If the placement is disrupted before the adoption is finalised the adoption authority in the receiving country shall be responsible for ensuring with the agreement of the adoption authority in the sending country that a satisfactory alternative placement is made with prospective adoptive parents who are approved by the adoption authorities of both countries
Adoption Services and Communities 61
Appropriate authorities or agencies in receiving countries shall ensure that there is adequate feedback to the appropriate authorities or agencies in sending countries both in relation to inter country adoption generally and to individual children where required
XX XX XX XX 63
The appropriate authorities and agencies in both sending and receiving countries have a responsibility for public education in relation to inter country adoption to ensure that when such adoption is appropriate for children public attitudes support this
Where public attitude is known to be discriminatory or likely to be hostile on grounds of race or colour the appropriate authority or agency in the sending country should not consider placement of the child
824 Status of the Child 71
Family It is essential that in inter country adoption child is given the same legal status and rights of inheritance as if shehe had been born to the adoptive parents in marriage
Name When the legal adoption process is concluded the child shall have the equivalent of a birth registration certificate
Nationality When the legal adoption is concluded the child shall be granted appropriate citizenship
XX XX XX XX 75
Immigration Before an inter country adoption placement with particular prospective adopters is proposed the appropriate authority or agency in the child s country shall ensure that there is no hindrance to the child entering the prospective adopters  country and that travel documents can be obtained at the appropriate time
We shall examine these provisions of the Draft Declaration and the draft guidelines of procedure when we proceed to consider and lay down the principles and norms which should be followed in intercountry adoption
Now it would be convenient at this stage to set out the procedure which is at present being followed for giving a child in adoption to foreign parents
Since there is no statutory enactment in our country providing for adoption of a child by foreign parents or laying down the procedure which must be followed in such a case resort is had to the provisions of the Guardians  Wards Act 1890 for the purpose of facilitating such adoption
This Act is an old statute enacted for the purpose of providing for appointment of guardian of the person or property of a minor
Section 4 sub section 5 clause a defines the court to mean the district court 825 having jurisdiction to entertain an application under the Act for an order appointing or declaring a person to be a guardian and the expression district court is defined in sub section 4 of section 4 to have the same meaning as assigned to it in the Code of Civil Procedure and includes a High Court in the exercise of its ordinary original civil jurisdiction
Section 7 sub section 1 provides that where the court is satisfied that it is for the welfare of a minor that an order should be made appointing a guardian of his person or property or both or declaring a person to be such a guardian the court may make an order accordingly and according to section 8 such an order shall not be made except on the application of one of four categories of persons specified in clauses a to d one of them being the person desirous of being the guardian of the minor and the other being any relative or friend of the minor
Sub section 1 of section 9 declares that if the application  is with respect to the guardianship of the person of the minor and that is the kind of application which is availed of for the purpose of intercountry adoption it shall be made to the district court having jurisdiction in the place where the minor ordinarily resides
Then follows section 11 sub section 1 which prescribes that if the court is satisfied that there is ground for proceeding on the application it shall fix a date for the hearing thereof and cause notice of the application and of the date fixed for the hearing to be served on the parents of the minor if they are residing in any State to which the Act extends the person if any named in the petition as having the custody or possession of the person of the minor the person proposed in the application to be appointed guardian and any other person to whom in the opinion of the court special notice of the application should be given
Section 17 provides that in appointing guardian of a minor the court shall be guided by what consistently with the law to which the minor is subject appears in the circumstances to be for the welfare of the minor and in considering what will be for the welfare of the minor the court shall have regard to the age sex and religion of the minor the character and capacity of the proposed guardian and his nearness of kin to the minor the wishes if any of a deceased parent and any existing or previous relations of the proposed guardian with the minor or his property
The last material section is section 26 which provides that a guardian of the person of a minor appointed by the court shall not without the leave of the court by which he was appointed remove the ward from the limits of its jurisdiction except for such purposes as may be prescribed and the leave to be granted by the 826 court may be special or general
These are the relevant provisions of the which have a bearing on the procedure which is at present being followed for the purpose of carrying through inter country adoption
The foreign parent makes an application to the court for being appointed guardian of the person of the child whom he wishes to take in adoption and for leave of the court to take the child with him to his country on being appointed such guardian
The procedure to be followed by the court in disposing of such application is laid down by three High Courts in the country with a view to protecting the interest and safeguarding the welfare of the child but so far as the rest of the High Courts are concerned they do not seem to have taken any steps so far in that direction
Since most of the applications by foreign parents wishing to take a child in adoption in the State of Maharashtra are made on the original side of the High Court of Bombay that High Court has issued a notification dated 10th May 1972 incorporating Rule 361 B in Chapter XX of the Rules of the High Court of Bombay Original Side 1957 an this newly added Rule provides inter alia as follows When a foreigner makes an application for being appointed as the guardian of the person or property of a minor the Prothonotary and Senior Master shall address a letter to the Secretary of the Indian Council of Social Welfare informing him of the presentation of the application and the date fixed for the hearing thereof he shall also inform him that any representation which the Indian Council of Social Welfare may make in the matter would be considered by the Court before passing the order on the application
A copy of the application shall be forwarded to the Secretary of the Indian Council of Social Welfare along with the letter of Prothonotary and Senior Master
 The High Court of Delhi has also issued instructions on the same lines to the Courts subordinate to it and these instructions read as follows i A foreigner desirous of being appointed guardian or the person of a minor and praying for leave to remove the minor to a foreign country shall make an application for the purpose in the prescribed form under the  attaching with it three copies of passport size 827 photographs of the minor duly attested by the person having custody of the minor at the time ii If the court is satisfied that there is no ground for proceedings on the application it shall fix a day for the hearing there of and cause notice of the application and of the date fixed for the hearing on the person and in the manner mentioned in Section 11 as also to the general public and the Secretary of the Indian Council of child Welfare and consider their representation iii Every person appointed guardian of the person of a minor shall execute a bond with or without a surety or sureties as the court may think fit to direct and in such sum as the court may fix having regard to the welfare of the minor and to ensure his production in the court if and when so required by the court iv On the court making an order for the appointment of a foreigner guardian of the person of an Indian minor a copy of the minor s photograph shall be counter signed by the Court and issued to the guardian or joint guardian as the case may be appointed by the court alongwith the certificate or guardianship
 The High Court of Gujarat has not framed any specific rule for this purpose like the High Courts of Bombay and Delhi but in a judgment delivered in 1982 in the case of Rasiklal Chaganlal Mehta1 the High Court of Gujarat has made the following observations In order that the Courts can satisfactorily decide an intercountry adoption case against the aforesaid background and in the light of the above referred guidelines we consider it necessary to give certain directions
In all such cases the Court should issue notice to the Indian Council of Social Welfare 175 Dadabhai Naroji Road Bombay 828 400001 and seek its assistance
If the Indian Council of Social Welfare so desires it should be made a party to the proceedings
If the Indian Council of Social Welfare does not appear or if it is unable for some reason to render assistance the Court should issue notice to an independent reputed and publiclyofficially recognised social welfare agency working in the field and in that area and request it to render assistance in the matter
 The object of giving notice to the Indian Council of Social Welfare or the Indian Council for Child Welfare or any other independent reputed and publicly or officially recognised social welfare agency is obviously to ensure that the application of foreign parents for guardianship of the child with a view to its eventual adoption is properly and carefully scrutinised and evaluated by an expert body having experience in the area of child welfare with a view to assisting the Court in coming to the conclusion whether it will be in the interest of the child promotive of its welfare to be adopted by the foreign parents making the application or in other words whether such adoption will provide moral and material security to the child with an opportunity to grow into the full stature of its personality in an atmosphere of love and affection and warmth of a family hearth and home
This procedure which has been evolved by the High Courts of Bombay Delhi and Gujarat is in our opinion eminently desirable and it can help considerably to reduce if not eliminate the possibility of the child being adopted by unsuitable or undesirable parents or being placed in a family where it may be neglected maltreated or exploited by the adoptive parents
We would strongly commend this procedure for acceptance by every court in the country which has to deal with an application by a foreign parent for appointment of himself as guardian of a child with a view to its eventual adoption We shall discuss this matter a little more in detail when we proceed to consider what principles and norms should be laid down for inter country adoption but in the meanwhile proceeding further with the narration of the procedure followed by the courts in Bombay Delhi and Gujarat we may point out that when notice is issued by the court the Indian Council of Social Welfare or the Indian Council for Child Welfare or any other recognised social welfare agency to which notice is issued prepares what may conveniently be described as a child study report and submits it to the Court for its consideration
What are the different aspects relating to the child in respect of which the child study report should give information is a matter which we shall presently discuss but suffice it to state for the time 829 being that the child study report should contain legal and social data in regard to the child as also an assessment of its behavioural pattern and its intellectual emotional and physical development
The Indian Council of Social Welfare has evolved a standardised form of the child study report and it has been annexed as exhibit C  to the reply filed in answer to the notice issued by the Court
Ordinarily an adoption proposal from a foreign parent is sponsored by a social or child welfare agency recognised or licensed by the Government of the country in which the foreign parents resides and the application of the foreign parent for appointment as guardian of the child is accompanied by a home study report prepared by such social or child welfare agency
The home study report contains an assessment of the fitness and suitability of the foreign parent for taking the child in adoption based on his antecedents family background financial condition psychological and emotional adaptability and the capacity to look after the child after adoption despite racial national and cultural differences
The Indian Council of Social Welfare has set out in annexure B  to the reply filed by it guidelines for the preparation of the home study report in regard to the foreign parent wishing to take a child in adoption and it is obvious from these guidlines which we shall discuss a little later that the home study report is intended to provide social and legal facts in regard to the foreign parent with a view to assisting the court in arriving at a proper determination of the question whether it will be in the interest of the child to be given in adoption to such foreign parent
The court thus has in most cases where an application is made by a foreign parent for being appointed guardian of a child in the courts in Bombay Delhi and Gujarat the child study report as well as the home study report together with other relevant material in order to enable it to decide whether it will be for the welfare of the child to be allowed to be adopted by the foreign parents and if on a consideration of these reports and material the court comes to the conclusion that it will be for the welfare of the child the court makes an order appointing the foreign parent as guardian of the child with liberty to him to take the child to his own country with a view to its eventual adoption
Since adoption in a foreign country is bound to take some time and till then the child would continue to be under the guardianship of the foreign parent by virtue of the order made by the court the foreign parent as guardian would continue to be accountable to the court for the welfare of the child and the court therefore takes a bond from him with or without surety or sureties in such sum as may be thought for ensuring its production if and when required by the court
830 The foreign parent then takes the child to his own country either personally or through an escort and the child is then adopted by the foreign parent according to the law of his country and on such adoption the child acquires the same status as a natural born child with the same rights of inheritance and succession as also the same nationality as the foreign parent adopting it
This is broadly the procedure which is followed in the courts in Bombay Delhi and Gujarat and there can be no doubt that by and large this procedure tends to ensure the welfare of the child but even so there are several aspects of procedure and detail which need to be considered in order to make sure that the child is placed in the right family where it will be able to grow into full maturity of its personality with moral and material security and in an atmosphere of love and warmth and it would not be subjected to neglect maltreatment or exploitation
Now one thing is certain that in the absence of a law providing for adoption of an Indian child by a foreign parent the only way in which such adoption can be effectuated is by making it in accordance with the law of the country in which the foreign parent resides
But in order to enable such adoption to be made in the country of the foreign parent it would be necessary for the foreign parent to take the child to his own country where the procedure for making the adoption in accordance with the law of that country can be followed
However the child which is an Indian national cannot be allowed to be removed out of India by the foreign parent unless the foreign parent is appointed guardian of the person of the child by the Court and is permitted by the Court to take the child to his own country under the provisions of the 
Today therefore as the law stands the only way in which a foreign parents can take an Indian child in adoption is by making an application to the Court in which the child ordinarily resides for being appointed guardian of the person of the child with leave to remove the child out of India and take it to his own country for the purpose of adopting it in accordance with the law of his country
We are definitely of the view that such inter country adoption should be permitted after exhausting the possibility of adoption within the country by Indian parents
It has been the experience of a large number of social welfare agencies working in the area of adoption that by and large Indian parents are not enthusiastic about taking a stranger child in adoption and even if they decide to take such child in adoption they prefer to adopt a boy rather than a girl and they are wholly averse to adopting a handicapped child with the result that the majority of abandoned destitute or orphan girls and 831 handicapped children have very little possibility of finding adoptive parents within the country and their future lies only in adoption by foreign parents
But at the same time it is necessary to bear in mind that by reason of the unavailability of children in the developed countries for adoption there is a great demand for adoption of children from India and consequently there is increasing danger of ill equipped and sometimes even undesirable organisations or individuals activising themselves in the field of inter country adoption with a view to trafficking in children and sometimes it may also happen that the immediate prospect of transporting the child from neglect and abandonment to material comfort and security by placing it with a foreigner may lead to other relevant factors such as the intangible needs of the child its emotional and psychological requirements and possible difficulty of its assimilation and integration in a foreign family with a different racial and cultural background being under emphasized if not ignored
It is therefore necessary to evolve normative and procedural safeguards for ensuring that the child goes into the right family which would provide it warmth and affection of family life and help it to grow and develop physically emotionally intellectually and spiritually
These safeguards we now proceed to examine
We may make it clear at the outset that we are not concerned here with cases of adoption of children living with their biological parents for in such class of cases the biological parents would be the best persons to decide whether to give their child in adoption to foreign parents
It is only in those cases where the children sought to be taken in adoption are destitute or abandoned and are living in social or child welfare centres that it is necessary to consider what normative and procedural safeguards should be forged for protecting their interest and promoting their welfare
Let us first consider what are the requirements which should be insisted upon so far ar a foreigner whishing to take a child in adoption is concerned In the first place every application from a foreigner desiring to adopt a child must be sponsored by a social or child welfare agency recognised or licensed by the government of the country in which the foreigner is resident
No application by a foreigner for taking a child in adoption should be entertained directly by any social or welfare agency in India working in the area of inter country adoption or by any institution or centre or home to which children are committed by the juvenile court
This is essential primarily for three reasons
832 Firstly it will help to reduce if not eliminate altogether the possibility of profiteering and trafficking in children because if a foreigner were allowed to contact directly agencies or individuals in India for the purpose of obtaining a child in adoption he might in his anxiety to secure a child for adoption be induced or persuaded to pay any unconscionable or unreasonable amount which might be demanded by the agency or individual procuring the child
Secondly it would be almost impossible for the court to satisfy itself that the foreigner who wishes to take the child in adoption would be suitable as a parent for the child and whether he would be able to provide a stable and secure family life to the child and would be able to handle trans racial trans cultural and trans national problems likely to arise from such adoption because where the application for adopting a child has not been sponsored by a social or child welfare agency in the country of the foreigner there would be no proper and satisfactory home study report on which the court can rely
Thirdly in such a case where the application of a foreigner for taking a child in adoption is made directly without the intervention of a social or child welfare agency there would be no authority or agency in the country of the foreigner who could be made responsible for supervising the progress of the child and ensuring that the child is adopted at the earliest in accordance with law and grows up in an atmosphere of warmth and affection with moral and material security assured to it
The record shows that in every foreign country where children from India are taken in adoption there are social and child welfare agencies licensed or recognised by the government and it would not therefore cause any difficulty hardship or inconvenience if it is insisted that every application from a foreigner for taking a child in adoption must be sponsored by a social or child welfare agency licensed or recognised or recognised by the government of the country in which the foreigner resides
It is not necessary that there should be only one social or child welfare agency in the foreign country through which an application for adoption of a child may be routed there may be more than one such social or child welfare agencies but every such social or child welfare agency must be licensed or recognised by the government of the foreign country and the court should not make an order for appointment of a foreigner as guardian unless it is satisfied that the application of the foreigner for adopting a child has been sponsored by such social or child welfare agency
The social or child welfare agency which sponsors the application for taking a child in adoption must get a home study report prepared by a professional 833 worker indicating the basis on which the application of the foreigner for adopting a child has been sponsored by it
The home study report should broadly include information in regard to the various matters set out in Annexure A  to this judgment though it need not strictly adhere to the requirements of that Annexure and it should also contain an assessment by the social or child welfare agency as to whether the foreigner wishing to take a child in adoption is fit and suitable and has the capacity to parent a child coming from a different racial and cultural milieu and whether the child will be able to fit into the environment of the adoptive family and the community in which it lives
Every application of a foreigner for taking a child in adoption must be accompanied by a home study report and the social or child welfare agency sponsoring such application should also send along with it a recent photograph of the family a marriage certificate of the foreigner and his or her spouse as also a declaration concerning their health together with a certificate regarding their medical fitness duly certificate by a medical doctor a declaration regarding their financial status alongwith supporting documents including employer s certificate where applicable income tax assessment orders bank references and particulars concerning the properties owned by them and also a declaration stating that they are willing to be appointed guardian of the child and undertaking that they would adopt the child according to the law of their country within a period of not more than two years from the time of arrival of the child in their country and give intimation of such adoption to the court appointing them as guardian as also to the social or child welfare agency in India processing their case they would maintain the child and provide it necessary education and up bringing according to their status and they would also send to the court as also to the social or child welfare agency in India reports relating to the progress of the child alongwith its recent photograph the frequency of such progress reports being quarterly during the first two years and half yearly for the next three years
The application of the foreigner must also be accompanied by a Power of Attorney in favour of an Officer of the social or child welfare agency in India which is requested to process the case and such Power of Attorney should authorise the Attorney to handle the case on behalf of the foreigner in case the foreigner is not in a position to come to India
The social or child welfare agency sponsoring the application of the foreigner must also certify that the foreigner seeking to adopt a child is permitted to do so according to the law of his country
These certificates declarations and documents which must accompany the application of the foreig 834 ner for taking a child in adoption should be duly notarised by a Notary Public whose signature should be duly attested either by an Officer of the Ministry of External Affairs or Justice or Social Welfare of the country of the foreigner or by an Officer of the Indian Embassy or High Commission or Consulate in that country
The social or child welfare agency sponsoring the application of the foreigner must also undertake while forwarding the application to the social or child welfare agency in India that it will ensure adoption of the child by the foreigner according to the law of his country within a period not exceeding two years and as soon as the adoption is effected it will send two certified copies of the adoption order to the social or child welfare agency in India through which the application for guardianship is processed so that one copy can be filed in court and the other can remain with the social or child welfare agency in India
The social or child welfare agency sponsoring the application must also agree to send to the concerned social or child welfare agency in India progress reports in regard to the child quarterly during the first year and half yearly for the subsequent year or years until the adoption is effected and it must also undertake that in case of disruption of the family of the foreigner before adoption can be effected it will take care of the child and find a suitable alternative placement for it with the approval of the concerned social or child welfare agency in India and report such alternative placement to the court handling the guardianship proceedings and such information shall be passed on both by the court as also by the concerned social or child welfare agency in India to the Secretary Ministry of Social Welfare Government of India
The Government of India shall prepare a list of social or child welfare agencies licensed or recognised for inter country adoption by the government of each foreign country where children from India are taken in adoption and this list shall be prepared after getting the necessary information from the government of each such foreign country and the Indian Diplomatic Mission in that foreign country
We may point out that the Swedish Embassy has in Annexure II to the affidavit filed on its behalf by Ulf Waltre given names of seven Swedish organisations or agencies which are authorised by the National Board for Inter Country Adoption functioning under the Swedish Ministry of Social Affairs to mediate applications for adoption by Swedish nationals and the Indian Council of Social Welfare has also in the reply filed by it in answer to the writ petition given a list of government recognised organisations or agencies dealing in inter country adoption in foreign countries
It should not therefore be difficult for the Government of India to prepare a list 835 of social or child welfare agencies licensed or recognised for intercountry adoption by the Government in various foreign countries
We direct the Government of India to prepare such list within six months from today and copies of such list shall be supplied by the Government of India to the various High Courts in India as also to the social or child welfare agencies operating in India in the area of inter country adoption under licence or recognition from the Government of India
We may of course make it clear that application of foreigners for appointment of themselves as guardians of children in India with a view to their eventual adoption shall not be held up until such list is prepared by the Government of India but they shall be processed and disposed of in the light of the principles and norms laid down in this judgment
We then proceed to consider the position in regard to biological parents of the child proposed to be taken in adoption
What are the safeguards which are required to be provided in so far as biological parents are concerned  We may make it clear at the outset that when we talk about biological parents we mean both parents if they are together of the mother or the father if either is alone
Now it should be regarded as an elementary requirement that if the biological parents are known they should be properly assisted in making a decision about relinquishing the child for adoption by the Institution or centre or Home for Child Care or social or child welfare agency to which the child is being surrendered
Before a decision is taken by the biological parents to surrender the child for adoption they should be helped to understand all the implications of adoptions including the possibility of adoption by a foreigner and they should be told specifically that in case the child is adopted it would not be possible for them to have any further contact with the child
The biological parents should not be subjected to any duress in making a decision about relinquishment and even after they have taken a decision to relinquish the child for giving in adoption a further period of about three months should be allowed to them to reconsider their decision
But once the decision is taken and not reconsidered within such further time as may be allowed to them it must be regarded as irrevocable and the procedure for giving the child in adoption to a foreigner can then be initiated without any further reference to the biological parents by filing an application for appointment of the foreigner as guardian of the child
Thereafter there can be no question of once again consulting the biological parents whether they wish to give the child in adoption or they want to take it back
It would be most unfair if after a 836 child is approved by a foreigner and expenses are incurred by him for the purpose of maintenance of the child and some times on medical assistance and even hospitalisation for the child the biological parents were once again to be consulted for giving them a locus penitential to reconsider their decision
But in order to eliminate any possibility of mischief and to make sure that the child has in fact been surrendered by its biological parents it is necessary that the Institution or Centre or Home for Child Care or social or child welfare agency to which the child is surrendered by the biological parents should take from the biological parents a document of surrender duly signed by the biological parents and attested by at least two responsible persons and such document of surrender should not only contain the names of the biological parents and their address but also information in regard to the birth of the child and its background health and development
If the biological parents state a preference for the religious upbringing of the child their wish should as far as possible be respected but ultimately the interest of the child alone should be the sole guiding factor and the biological parents should be informed that the child may be given in adoption even to a foreigner who professes a religion different from that of the biological parents
This procedure can and must be followed where the biological parents are known and they relinquish the child for adoption to an Institution or Centre or Home for Child Care or hospital or social or child welfare agency
But where the child is an orphan destitute or abandoned child and its parents are not known the Institution or Centre or Home for Child Care or hospital or social or child welfare agency in whose care the child has come must try to trace the biological parents of the child and if the biological parents can be traced and it is found that they do not want to take back the child then the same procedure as outlined above should as far as possible be followed
But if for any reason the biological parents cannot be traced then there can be no question of taking their consent or consulting them
It may also be pointed out that the biological parents should not be induced or encouraged or even be permitted to take a decision in regard to giving of a child in adoption before the birth of the child of within a period of three months from the date of birth
This precaution is necessary because the biological parents must have reasonable time after the birth of the child to take a decision whether to rear up the child themselves or to relinquish it for adoption and moreover it may be necessary to allow some time to the child to overcome any health problems experienced after birth
837 We may now turn to consider the safeguards which should be observed in so far as the child proposed to be taken in adoption is concerned
It was generally agreed by all parties appearing before the Court whether as interveners or otherwise that it should not be open to any and every agency or individual to process an application from a foreigner for taking a child in adoption and such application should be processed only through a social or child welfare agency licensed or recognised by the Government of India or the Government of the State in which it is operating or to put it differently in the language used by the Indian Council of Social Welfare in the reply filed by it in answer to the writ petition all private adoptions conducted by unauthorised individuals or agencies should be stopped
The Indian Council of Social Welfare and the Indian Council for Child Welfare are clearly two social or child welfare agencies operating at the national level and recognised by the Government of India as appears clearly from the letter dated 23rd August 1980 addressed by the Deputy Secretary to the Government of India to the Secretary Government of Kerela Law Department Annexure F  to the submissions filed by the Indian Council for Child Welfare in response to the writ petition
But apart from these two recognised social or child welfare agencies functioning at the national level there are other social or child welfare agencies engaged in child care and welfare and if they have good standing and reputation and are doing commendable work in the area of child care and welfare there is no reason why they should not be recognised by the Government of India or the Government of a State for the purpose of inter country adoptions
We would direct the Government of India to consider and decide within a period of three months from today whether any of the institutions or agencies which have appeared as interveners in the present writ petition are engaged in child care and welfare and if so whether they deserve to be recognised for inter country adoptions
Of course it would be open to the Government of India or the Government of a State suo motu or on an application made to it to recognise any other social or child welfare agency for the purpose of inter country adoptions provided such social or child welfare agency enjoys good reputation and is known for its work in the field of child care and welfare
We would suggest that before taking a decision to recognise any particular social or child welfare agency for the purpose of intercountry adoptions the Government of India or the Government of a State would do well to examine whether the social or child welfare agency has proper staff with professional social work experience because otherwise it may not be possible for the social or child wel 838 fare agency to carry out satisfactorily the highly responsible task of ensuring proper placement of a child with a foreign adoptive family
It would also be desirable not to recognise an organisation or agency which has been set up only for the purpose of placing children in adoption it is only an organisation or agency which is engaged in the work of child care and welfare which should be regarded as eligible for recognition since inter country adoption must be looked upon not as an independent activity by itself but as part of child welfare programme so that it may not tend to degenerate into trading
The Government of India or the Government of a State recognising any social or child welfare agency for inter country adoptions must insist as a condition of recognition that the social or child welfare agency shall maintain proper accounts which shall be audited by a chartered accountant at the end of every year and it shall not charge to the foreigner wishing to adopt a child any amount in excess of that actually incurred by way of legal or other expenses in connection with the application for appointment of guardian including such reasonable remuneration or honorarium for the work done and trouble taken in processing filing and pursuing the application as may be fixed by the Court
Situations may frequently arise where a child may be in the care of a child welfare institution or centre or social or child welfare agency which has not been recognised by the Government
Since an application for appointment as guardian can according to the principles and norms laid down by us be processed only by a recognised social or child welfare agency and none else any unrecognised institution centre or agency which has a child under its care would have to approach a recognised social or child welfare agency if it desires such child to be given in inter country adoption and in that event it must send without any undue delay the name and particulars of such child to the recognised social or child welfare agency through which such child is proposed to be given in inter country adoption
Every recognised social or child welfare agency must maintain a register in which the names and particulars of all children proposed to be given in inter country adoption through it must be entered and in regard to each such child the recognised social or child welfare agency must prepare a child study report through a professional social worker giving all relevant information in regard to the child so as to help the foreigner to come to a decision whether or not to adopt the child and to understand the child if he decides to adopt it as also to assist the court in coming to a decision whether it will be for the welfare of the child to be given in adoption to the 839 foreigner wishing to adopt it
The child study report should contain as far as possible information in regard to the following matters 1 Identifying information supported where possible by documents
2 Information about original parents including their health and details of the mother s pregnancy and birth
3 Physical intellectual and emotional development
4 Health report prepared by a registered medical practitioner preferably by a paediatrician
5 Recent photograph
6 Present environment category of care Own home foster home institution etc relationships routines and habits
7 Social worker s assessment and reasons for suggesting inter country adoption
 The government of India should with the assistance of the Government of the States prepare a list of recognised social or child welfare agencies with their names addresses and other particulars and send such list to the appropriate department of the Government of each foreign country where Indian children are ordinarily taken in adoption so that the social or child welfare agencies licensed or recognised by the Government of such foreign country for intercountry adoptions would know which social or child welfare agency in India they should approach for processing an application of its national for taking an Indian child in adoption
Such list shall also be sent by the Government of India to each High Court with a request to forward it to the district courts within its jurisdiction so that the High Courts and the district courts in the country would know which are the recognised social or child welfare agencies entitled to process an application for appointment of a foreigner as guardian
Of course it would be desirable if a Central Adoption Resource Agency is set up by the Government of India with regional branches at a few centres which are active in inter country 840 adoptions
Such Central Adoption Resource Agency can act as a clearing house of information in regard to children available for inter country adoption and all applications by foreigners for taking Indian children in adoption can then be forwarded by the social or child welfare agency in the foreign country to such Central Adoption Resource Agency and the latter can in its turn forward them to one or the other of the recognised social or child welfare agencies in the country
Every social or child welfare agency taking children under its care can then be required to send to such Central Adoption Resource Agency the names and particulars of children under its care who are available for adoption and the names and particulars of such children can be entered in a register to be maintained by such Central Adoption Resource Agency
But until such Central Adoption Resource Agency is set up an application of a foreigner for taking an Indian child in adoption must be routed through a recognised social or child welfare agency
Now before any such application from a foreigner is considered every effort must be made by the recognised social or child welfare agency to find placement for the child by adoption in an Indian family
Whenever any Indian family approaches a recognised social or child welfare agency for taking a child in adoption all facilities must be provided by such social or child welfare agency to the Indian family to have a look at the children available with it for adopt on and if the Indian family wants to see the child study report in respect of any particular child child study report must also be made available to the Indian family in order to enable the Indian family to decide whether they would take the child in adoption
It is only if no Indian family comes forward to take a child in adoption within a maximum period of two months that the child may be regarded as available for inter country adoption subject only to one exception namely that if the child is handicapped or is in bad state of health needing urgent medical attention which is not possible for the social or child welfare agency looking after the child to provide the recognised social or child welfare agency need not wait for a period of two months and it can and must take immediate steps for the purpose of giving such child in inter country adoption
The recognised social or child welfare agency should on receiving an application of a foreigner for adoption through a licensed or recognised social or child welfare agency in a foreign country consider which child would be suitable for being given in adoption to the foreigner and would fit into the environment of his family and community and send the photograph and child study report of such child to the foreigner for the purpose of obtaining his 841 approval to the adoption of such child
The practice of accepting a general approval of the foreigner to adopt any child should not be allowed because it is possible that if the foreigner has not seen the photograph of the child and has not studied the child study report and a child is selected for him by the recognised social or child welfare agency in India on the basis of his general approval he may on the arrival of the child in his country find that he does not like the child or that the child is not suitable in which event the interest of the child would be seriously prejudiced
The recognised social or child welfare agency must therefore insist upon approval of a specific known child and once that approval is obtained the recognised social or child welfare agency should immediately without any undue delay proceed to make an application for appointment of the foreigner as guardian of the child
Such application would have to be made in the court within whose jurisdiction the child ordinarily resides and it must be accompanied by copies of the home study report the child study report and other certificates and documents forwarded by the social or child welfare agency sponsoring the application of the foreigner for taking the child in adoption
Before we proceed to consider what procedure should be followed by the court in dealing with an application for appointment of a foreigner as guardian of a child we may deal with a point of doubt which was raised before us namely whether the social or child welfare agency which is looking after the child should be entitled to receive from the foreigner wishing to take the child in adoption any amount in respect of maintenance of the child or its medical expenses
We were told that there are instances where large amounts are demanded by so called social or child welfare agencies or individuals in consideration of giving a child in adoption and often this is done under the label of maintenance charges and medical expenses supposed to have been incurred for the child
This is a pernicious practice which is really nothing short of trafficking in children and it is absolutely necessary to put an end to it by introducing adequate safeguards
There can be no doubt that if an application of a foreigner for taking a child in adoption is required to be routed through a recognised social or child welfare agency and the necessary steps for the purpose of securing appointment of the foreigner as guardian of the child have also to be taken only through a recognised social or child welfare agency the possibility of any so called social or child welfare agency or individual trafficking in children by demanding exorbitant amounts from prospective adoptive parents under the guise of maintenance charges and medical expenses or 842 otherwise would be almost eliminated
But at the same time it would not be fair to suggest that the social or child welfare agency which is looking after the child should not be entitled to receive any amount from the prospective adoptive parent when maintenance and medical expenses in connection with the child are actually incurred by such social or child welfare agency
Many of the social or child welfare agencies running homes for children have little financial resources of their own and have to depend largely on voluntary donations and therefore if any maintenance or medical expenses are incurred by them on a child there is no reason why they should not be entitled to receive reimbursement of such maintenance and medical expenses from the foreigner taking the child in adoption
We would therefore direct that the social or child welfare agency which is looking after the child selected by a prospective adoptive parent may legitimately receive from such prospective adoptive parent maintenance expenses at a rate not exceeding Rs 60 per day this outer limit being subject to revision by the Ministry of Social Welfare Government of India from time to time from the date of selection of the child by him until the date the child leaves for going to its new home as also medical expenses including hospitalisation charges if any actually incurred by such social or child welfare agency for the child
But the claim for payment of such maintenance charges and medical expenses shall be submitted to the prospective adoptive parent through the recognised social or child welfare agency which has processed the application for guardianship and payment in respect of such claim shall not be received directly by the social or child welfare agency making the claim but shall be paid only through the recognised social or child welfare agency
This procedure will to a large extent eliminate trafficking in children for money or benefits in kind and we would therefore direct that this procedure shall be followed in the future
But while giving this direction we may make it clear that what we have said should not be interpreted as in any way preventing a foreigner from making voluntary donation to any social or child welfare agency but no such donation from a prospective adoptive parent shall be received until after the child has reached the country of its prospective adoptive parent
It is also necessary to point out that the recognised social or child welfare agency through which an application of a foreigner for taking a child in adoption is routed must before offering a child in adoption make sure that the child is free to be adopted
Where the parents have relinquished the child for adoption and there is a docu 843 ment of surrender the child must obviously be taken to be free for adoption
So also where a child is an orphan or destitute or abandoned child and it has not been possible by the concerned social or child welfare agency to trace its parents or where the child is committed by a juvenile court to an institution centre or home for committed children and is declared to be a destitute by the juvenile court it must be regarded as free for adoption
The recognised social or child welfare agency must place sufficient material before the court to satisfy it that the child is legally available for the adoption
It is also necessary that the recognised welfare agency must satisfy itself firstly that there is no impediment in the way of the child entering the country of the prospective adoptive parent secondly that the travel documents for the child can be obtained at the appropriate time and lastly that the law of the country of the prospective adoptive parent permits legal adoption of the child and that no such legal adoption being concluded the child would acquire the same legal status and rights of inheritance as a natural born child and would be granted citizenship in the country of adoption and it should file along with the application for guardianship a certificate reciting such satisfaction
We may also at this stage refer to one other question that was raised before us namely whether a child under the care of a social or child welfare agency or hospital or orphanage in one State can be brought to another State by a social or child welfare agency for the purpose of being given in adoption and an application for appointment of a guardian of such child can be made in the court of the latter State
This question was debated before us in view of the judgment given by Justice Lentin of the Bombay High Court of 22nd July 1982 in Miscellaneous Petition No 178 of 1982 and other allied petitions
We agree with Justice Lentin that the practice of social or child welfare agencies or individuals going to different States for the purpose of collecting children for being given in inter country adoption is likely to lead to considerable abuse because it is possible that such social or child welfare agencies or individuals may by offering monetary inducement persuade indigent parents to part with their children and then give the children to foreigners in adoption by demanding a higher price which the foreigners in their anxiety to secure a child for adoption may be willing to pay
But we do not think that if a child is relinquished by its biological parents or is an orphan or destitute or abandoned child in its parent State there should be any objection to a social or child welfare agency taking the child to another State even if 844 the object be to give it in adoption provided there are sufficient safeguards to ensure that such social or child welfare agency does not indulge in any malpractice
Since we are directing that every application of a foreigner for taking a child in adoption shall be routed only through a recognised social or child welfare agency and an application for appointment of the foreigner as guardian of the child shall be made to the court only through such recognised social or child welfare agency there would hardly be any scope for a social or child welfare agency or individual who brings a child from another State for the purpose of being given in adoption to indulge in trafficking and such a possibility would be reduced to almost nil
Moreover before proposing a child for adoption the recognised social or child welfare agency must satisfy itself that the child has either been voluntarily relinquished by its biological parents without monetary inducement or is an orphan or destitute or abandoned child and for this purpose the recognised social or child welfare agency may require the agency or individual who has the care and custody of the child to state on oath as to how he came by the child and may also if it thinks fit verify such statement by directly enquiring from the biological parents or from the child care centre or hospital or orphanage from which the child is taken
This will considerably reduce the possibility of abuse while at the same time facilitating placement of children deprived of family love and care in smaller towns and rural areas
We do not see any reason why in cases of this kind where a child relinquished by its biological parents or an orphan or destitute or abandoned child is brought by an agency or individual from one State to another it should not be possible to apply for guardianship of the child in the court of the latter State because the child not having any permanent place of residence would then be ordinarily resident in the place where it is in the care and custody of such agency or individual
But quite apart from such cases we are of the view that in all cases where a child is proposed to be given in adoption enquiries regarding biological parents whether they are traceable or not and if traceable whether they have voluntarily relinquished the child and if not whether they wish to take the child back should be completed before the child is offered for adoption and thereafter no attempt should be made to trace or contact the biological parents
This would obviate the possibility of an ugly and unpleasant situation of biological parents coming forward to claim the child after it has been given to a foreigner in adoption
It is also necessary while considering placement of a child in adoption to bear in mind that brothers and sisters or children who have 845 been brought up as siblings should not be separated except for special reasons and as soon as a decision to give a child in adoption to a foreigner is finalised the recognised social or child welfare agency must if the child has reached the age of understanding take steps to ensure that the child is given proper orientation and is prepared for going to its new home in a new country so that the assimilation of the child to the new environment is facilitated
We must emphasize strongly that the entire procedure which we have indicated above including preparation of child study report making of necessary enquiries and taking of requisite steps leading upto the filing of an application for guardianship of the child proposed to be given in adoption must be completed expeditiously so that the child does not have to remain in the care and custody of a social or child welfare agency without the warmth and affection of family life longer than is absolutely necessary
We may also point out that if a child is to be given in intercountry adoption it would be desirable that it is given in such adoption as far as possible before it completes the age of 3 years
The reason is that if a child is adopted before it attains the age of understanding it is always easier for it to get assimilated and integrated in the new environment in which it may find itself on being adopted by a foreign parent
Comparatively it may be some what difficult for a grown up child to get acclimatized to new surroundings in a different land and some times a problem may also arise whether foreign adoptive parents would be able to win the love and affection of such grown up child
But we make it clear that we say this we do not wish to suggest for a moment that children above the age of three years should not be given in inter country adoption
There can be no hard and fast rule in this connection
Even children between the ages of 3 and 7 years may be able to assimilate themselves in the new surroundings without any difficulty and there is no reason why they should be denied the benefit of family warmth and affection in the home of foreign parents merely because they are past the age of 3 years
We would suggest that even children above the age of 7 years may be given in inter country adoption but we would recommend that in such cases their wishes may be ascertained if they are in a position to indicate any preference
The statistics placed before us show that even children past the age of 7 years have been happily integrated in the family of their foreign adoptive parents
846 Lastly we come to the procedure to be followed by the court when an application for guardianship of a child is made to it
Section 11 of the provides for notice of the application to be issued to various persons including the parents of the child if they are residing in any State to which the Act extends
But we are definitely of the view that no notice under this section should be issued to the biological parents of the child since it would create considerable amount of embarrassment and hard ship if the biological parents were then to come forward and oppose the application of the prospective adoptive parent for guardianship of the child
Moreover the biological parents would then come to know who is the person taking the child in adoption and with this knowledge they would at any time be able to trace the whereabouts of the child and they may try to contact the child resulting in emotional and psychological disturbance for the child which might affect his future happiness
The possibility also cannot be ruled out that if the biological parents know who are the adoptive parents they may try to extort money from the adoptive parents
It is therefore absolutely essential that the biological parents should not have any opportunity of knowing who are the adoptive parents taking the child in adoption and therefore notice of the application for guardianship should not be given to the biological parents
We would direct that for the same reasons notice of the application for guardianship should also not be published in any newspaper
Section 11 of the Act empowers the court to serve notice of the application for guardianship on any other person to whom in the opinion of the court special notice of the application should be given and in exercise of this power the court should before entertaining an application for guardianship give notice to the Indian Council of Child Welfare or the Indian Council for Social Welfare or any of its branches for scrutiny of the application with a view to ensuring that it will be for the welfare of the child to be given in adoption to the foreigner making the application for guardianship
The Indian Council of Social Welfare of the Indian Council of Child Welfare to which notice is issued by the court would have to scrutinise the application for guardianship made on behalf of the foreigner wishing to take the child in adoption and after examining the home study report the child study report as also documents and certificates forwarded by the sponsoring social or child welfare agency and making necessary enquiries it must make its representation to the court so that the court may be able to satisfy itself whether the principles and norms as also the procedure laid down by us in this judgment have been observed and followed whether the foreigner 847 will be a suitable adoptive parent for the child and the child will be able to integrate and assimilate itself in the family and community of the foreigner and will be able to get warmth and affection of family life as also moral and material stability and security and whether it will be in the interest of the child to be taken in adoption by the foreigner
If the court is satisfied then and then only it will make an order appointing the foreigner as guardian of the child and permitting him to remove the child to his own country with a view to eventual adoption
The court will also introduce a condition in the order that the foreigner who is appointed guardian shall make proper provision by way of deposit or bond or otherwise to enable the child to be repatriated to India should it become necessary for and reason
We may point out that such a provision is to be found in clause 24 of the Adoption of Children Bill No 208 of 1980 and in fact the practice of taking a bond from the foreigner who is appointed guardian of the child is being followed by the courts in Delhi as a result of practice instructions issued by the High Court of Delhi
The order will also include a condition that the foreigner who is appointed guardian shall submit to the Court as also to the Social or Child Welfare Agency processing the application for guardianship progress reports of the child along with a recent photograph quarterly during the first two years and half yearly for the next three years
The court may also while making the order permit the social or child welfare agency which has taken care of the child pending its selection for adoption to receive such amount as the Court thinks fit from the foreigner who is appointed guardian of such child
The order appointing guardian shall carry attached to it a photograph of the child duly counter signed by an officer of the court
This entire procedure shall be completed by the court expediticusly and as far as possible within a period of two months from the date of filing of the application for guardianship of the child
The proceedings on the application for guardianship should be held by the Court in camera and they should be regarded as confidential and as soon as an order is made on the application for guardianship the entire proceedings including the papers and documents should be sealed
When an order appointing guardian of a child is made by the court immediate intimation of the same shall be given to the Ministry of Social Welfare Government of India as also to the Ministry of Social Welfare of the Government of the State in which the court is situate and copies of such order shall also be forwarded to the two respective ministries of Social Welfare
The Ministry of Social Welfare Government of India shall maintain a register containing names and other particulars of the children in 848 respect of whom orders for appointment of guardian have been made as also names addresses and other particulars of the prospective adoptive parents who have been appointed such guardians and who have been permitted to take away the children for the purpose of adoption
The Government of India will also send to the Indian Embassy or High Commission in the country of the prospective adoptive parents from time to time the names addresses and other particulars of such prospective adoptive parents together with particulars of the children taken by them and requesting the Embassy or High Commission to maintain an unobtrusive watch over the welfare and progress of such children in order to safeguard against any possible maltreatment exploitation or use for ulterior purposes and to immediately report any instance of maltreatment negligence or exploitation to the Government of India for suitable action
We may add even at the cost of repetition that the biological parents of a child taken in adoption should not under any circumstances be able to know who are the adoptive parents of the child nor should they have any access to the home study report or the child study report or the other papers and proceedings in the application for guardianship of the child
The foreign parents who have taken a child in adoption would normally have the child study report with them before they select the child for adoption and in case they do not have the child study report the same should be supplied to them by the recognised social or child welfare agency processing the application for guardianship and from the child study report they would be able to gather information as to who are the biological parents of the child if the biological parents are known
There can be no objection in furnishing to the foreign adoptive parents particulars in regard to the biological parents of the child taken in adoption but it should be made clear that it would be entirely at the discretion of the foreign adoptive parents whether and if so when to inform the child about its biological parents
Once a child is taken in adoption by a foreigner and the child grows up in the surroundings of the country of adoption and becomes a part of the society of that country it may not be desirable to give information to the child about its biological parents whilst it is young as that might have the effect of exciting his curiosity to meet its biological parents resulting in unsettling effect on its mind
But if after attaining the age of maturity the child wants to know about its biological parents there may not be any serious objection to the giving of such information to the child because after the child attains maturity it is not likely to be easily affected by such information and in such a 849 case the foreign adoptive parents may in exercise of their discretion furnish such information to the child if they so think fit
These are the principles and norms which must be observed and the procedure which must be followed in giving a child in adoption to foreign parents
If these principles and norms are observed and this procedure is followed we have no doubt that the abuses to which inter country adoptions if allowed without any safeguards may lend themselves would be considerably reduced if not eliminated and the welfare of the child would be protected and it would be able to find a new home where it can grow in an atmosphere of warmth and affection of family life with full opportunities for physical intellectual and spiritual development
We may point out that the adoption of children by foreign parents need not wait until social or child welfare agencies are recognised by the Government as directed in this order but pending recognition of social or child welfare agencies for the purpose of inter country adoptions which interregnum we hope will not last for a period of more than two months any social or child welfare agency having the care and custody of a child may be permitted to process an application of a foreigner but barring this departure the rest of the procedure laid down by us shall be followed wholly and the principles and norms enunciated by us in this Judgment shall be observed in giving a child in inter country adoption
The writ petition shall stand disposed of in these terms
Copies of this order shall be sent immediately to the Ministry of Social Welfare of the Government of India and the Ministry of Social Welfare of each of the State Governments as also to all the High Courts in the country and to the Indian Council of Social Welfare and the Indian Council of Child Welfare
We would direct that copies of this Order shall also be supplied to the Embassies and Diplomatic Missions of Norway Sweden France Federal Republic of Germany and the United States of America and the High Commissions of Canada and Australia for their informations since the statistics show that these are the countries where Indian children are taken in adoption
SR 850 ANNEXURE A  1 Source of Referral
Number of single and joint interviews
Personality of husband and wife
Health details such as clinical tests heart condition past illnesses etc
medical certificates required sterility certificate required if applicable 5
Social status and family background
Nature and Adjustment with occupation
Relationship with community
Description of home
Accommodation for the child
Schooling facilities
Amenities in the home
Standard of living as it appears in the home
Type of neighbourhood
Current relationship between husband and wife
a Current relationship between parents and children if any children
b Development of already adopted children if any and their acceptance of the child to be adopted
Current relationship between the couple and the members of each other s families
851 17
If the wife is working will she be able to give up the job  18
If she cannot leave the job what arrangements will she make to look after the child  19
Is adoption considered because of sterility of one of the maritial partners  20
If not can they eventually have children of their own  21
If a child is born to them how will they treat the adopted child  22
If the couple already has children how will these children react to an adopted child  23
Important social and psychological experiences which have had a bearing on their desire to adopt a child
Reasons for wanting to adopt an Indian child
Attitude of grand parents and relatives towards the adoption
Attitude of relatives friends community and neighbourhood towards adoption of an Indian child
Anticipated plans for the adopted child
Can the child be adopted according to the adoption law in the adoptive parents country  Have they obtained the necessary permission to adopt  Statement of permission required 29
Do the adoptive parents know any one who adopted a child from their own country or another country  Who are they  From where did they fail to get a child from that source  30
Did the couple apply for a child from any other source  If yes which source  31
What type of child is the couple interested in  sex age and for what reasons 852 32
Worker s recommendation concerning the family and the type of child which would best fit into this home
Name and address of the agency conducting the home study
Name of social worker qualification of social worker
Name of agency responsible for post placement supervision and follow up


Summary:
The petitioner an advocate of the Supreme Court addressed a letter in public interest to the Court complaining of malpractices indulged in by social organisation and voluntary agencies engaged in the work of offering Indian Children in adoption to foreign parents the petitioner alleged that not only Indian Children of tender age are under the guise of adoption exposed to the long horrendous journey to distant foreign countries at great risk to their lives but in cases where they survive and where these children are not placed in the shelter and Relief Houses they in course of time become beggars or prostitutes for want of proper care from their alleged foster parents
 The petitioner accordingly sought relief restraining Indian based private agencies from carrying out further activity of routing children for adoption abroad and directing the Government of India the Indian Council of Child Welfare and the Indian Council of Social Welfare to carry out their obligations in the matter of adoption of Indian Children by Foreign parents
Being a public interest litigation the letter was treated as a writ petition
Disposing of the Writ Petition after indicating the principles and norms to be observed in giving a Child in adoption to foreign parents the Court  HELD 1 1
Every child has a right to love and be loved and to grow up in an atmosphere of love and affection and of moral and material security and this is possible only if the child is brought up in a family
The most congenial environment would of course be that of the family of his biological parents
But if for any reason it is not possible for the biological parents or other near relative to look after the child or the child is abandoned and it is either not possible to trace the parents or the parents are not willing to take care of the child the next best alternative would be to find adoptive parents for the child so that the child can grow up under the loving care and attention of the adoptive parents
The adoptive parents would be the next best substitute for the biological parents
813E F 1 2
When the parents of a child want to give it away in adoption or the child is abandoned and it is considered necessary in the interest of the child 796 to give it in adoption every effort must be made first to find adoptive parents for it within the country because such adoption would steer clear of any problems of assimilation of the child in the family of the adoptive parents which might arise on account of cultural racial or linguistic differences in case of adoption of the child by foreign parents
If it is not possible to find suitable adoptive parents for the child within the country it may become necessary to give the child in adoption to foreign parents rather than allow the child to grow up in an orphanage or an institution where it will have no family life and no love and affection of parents and quite often in the socioeconomic conditions prevailing in the country it might have to lead the life of a destitute half clad half hungry and suffering from malnutrition and illness
8 4B D 2 1
The primary object of giving the child in adoption should be the welfare of the child
Great care has to be exercised in permitting the child to be given in adoption to foreign parents lest the child may be neglected or abandoned by the adoptive parents in the foreign country or the adoptive parents may not be able to provide to the child a life or moral or material security or the child may be subjected to moral or sexual abuse or forced labour or experimentation for medial or other research and may be placed in a worse situation than that in his own country
815G H 816A 2 2
Since there is no statutory enactment in our country providing for adoption of a child by foreign parents or laying down the procedure which must be followed in such a case resort is had to the provisions of the for the purpose of facilitating such adoption
 824G 2 3
The High Courts of Bombay Delhi and Gujarat have laid down by Rules and Instructions certain procedure when a foreigner makes an application for adoption under the Guardian and Wards Act including issuing of a notice to the Indian Council of Social Welfare and other officially recognised social welfare agencies with a view to assist the court in properly and carefully scrutinising the applications of the foreign parents for determining whether it will be in the interest of the child and promotive of its welfare to be adopted by the foreign parents making the application or in other words whether such adoption will provide moral and material security to the child with an opportunity to grow into the full stature of its personality in an atmosphere of love and affection and warmth of a family health and home
This Procedure is eminently desirable and it can help considerably to reduce if notice imitate the possibility of the child being adopted by unsuitable or undesirable parents or being placed in a family where it may be neglected maltreated or exploited by the adoptive parents
828B E Rasiklal Chaganlal Mehta s case AIR 1982 Gujarat 193 approved
The requirements which should be insisted upon so far as a foreigner wishing to take a child in adoption and the procedure that should be followed for the purpose of ensuring that such inter country adoptions do not lead to abuse maltreatment or exploitation of children and secure to them a healthy decent family life are as under 1 Every application from a foreigner desiring to adopt a child must be 797 sponsored by a social or child welfare agency recognised or licensed by the government of the country in which the foreigner is resident
No application by a foreigner for taking a child in adoption should be entertained directly by any social or welfare agency of India working in the area of inter country adoption or by any institution or centre or home to which children are committed by the juvenile court
This is essential primarily for three reasons
831G H Firstly it will help to reduce if not eliminate altogether the possibility of profiteering and trafficking in children because if a foreigner were allowed to contact directly agencies or individuals in India for the purpose of obtaining a child in adoption he might in his anxiety to secure a child for adoption be induced or persuaded to pay any unconscionable or unreasonable amount which might be demanded by the agency to individual procuring the child
Secondly it would be almost impossible for the court to satisfy itself that the foreigner who wishes to take the child in adoption would be suitable as a parent for the child and whether he would be able to provide a stable and secure family life to the child and would be able to handler trans racial trans cultural and trans national problems likely to arise from such adoption because where the application for adopting a child has not been sponsored by a social or child welfare agency in the country of the foreigner there would be no proper and satisfactory home study report on which the court can rely
Thirdly in such a case where the application of a foreigner for taking a child in adoption is made directly without the intervention of a social or child welfare agency there would be no authority or agency in the country of the foreigner who could be made responsible for supervising the progress of the child and ensuring that the child is adopted at the earliest in accordance with law and grows up in an atmosphere of warmth and affection with moral and material security assured to it
832A E Every application of a foreigner for taking a child in adoption must be accompanied by a home study report and the social or child welfare agency sponsor in such application should also send along with it a recent photograph of the family a marriage certificate of the foreigner and his or her spouse as also a declaration concerning their health together with a certificate regarding their medical fitness duly certified by a medical doctor a declaration regarding their financial status alongwith supporting documents including employer s certificate where applicable income tax assessment orders bank references and particulars concerning the properties owned by them and also a declaration stating that they are willing to be appointed guardian of the child and an undertaking that they would adopt the child according to the law of their country within a period of not more than two years from time of arrival of the child in their country and give intimation of such adoption to the court appointing them as guardian as also to the social or child welfare agency in India process
sing their case and that they would maintain the child and provide it necessary education and up bringing according to their status and they would also send to the court as also to the social or child welfare agency in India reports relating to the progress of the child alongwith its recent photograph the frequency of such progress reports being quarterly during the first two years and half yearly for the next three years
The application of the foreigner must also be accompanied by a Power of Attorney in favour of an officer of the social or child welfare agency in India which is requested to process the case and such 798 Power of Attorney should authorize the Attorney to handle the case on behalf of the foreigner in case the foreigner is not in a position to come to India
The social or child welfare agency sponsoring the application of the foreigner must also certify that the foreigner seeking to adopt a child is permitted to do so according to the law of his country
These certificates declarations and documents must accompany the application of the foreigner for taking child in adoption should be duly notarised by a Notary Public whose signature should be duly attested either by an officer of the Ministry of External Affairs or Justice or Social Welfare of the country of the foreigner or by an officer of the Indian Embassy or High Commission or Consulate in that country
The social or child welfare agency sponsoring the application of the forefingers must also undertake while forwarding the application to the social or child welfare agency in India that it will ensure adoption of the child by the foreigner according to the law of his country within a period not exceeding two years and as soon as the adoption is affected it will send two certified copies of the adoption order to the social or child welfare agency in India through which the application for guardianship is processed so that one copy can be filed in court and the other can remain with the social or child welfare agency in India
The social or child welfare agency sponsoring the application must also agree to send to the concerned social or child welfare agency in India progress reports in regard to the child quarterly during the first year and half yearly for the subsequent year or years until the adoption is effected and it must also undertake that in case of disruption of the family of the foreigner before adoption can be effected it will take care of the child and find a suitable alternative placement for it with the approval of the concerned social or child welfare agency in India and report such alternative placement to the court handling the guardianship proceedings and such information shall be passed on both by the court as also by the concerned social or child welfare agency in India to the Secretary Ministry of Social Welfare Government of India
833C H 834A E 3 2
The Government of India shall prepare a list of social or child welfare agencies licensed or recognised for inter country adoption by the Government of each foreign country where children from India are taken in adoption and this list shall be prepared after getting the necessary information from the government of each such foreign country and the Indian Diplomatic Mission in that foreign country
Such lists shall be supplied by the Government of India to the various High Courts in India as also to the social or child welfare agencies operation in India in the area of inter country adoption under licence or recognition from the Government of India
834E F 835 B 3 3
If the biological parents are known they should be helped to understand all the implications of adoption including the possibility of adoption by a foreigner and they should be told specifically that in case the child is adopted it would not be possible for them to have any further contact with the child The biological parents should not be subjected to any duress in making a decision about relinquishment and even after they have taken a decision to relinquish the child for giving in adoption a further period of about three months should be allowed to them to reconsider their decision
But once the decision is taken and not reconsidered within such further time as may be allowed to them it must be regarded as irrevocable and the procedure for 799 giving the child in adoption to a foreigner can then be initiated without any further reference to the biological parents by filling an application for appointment of the foreigner as guardian of the child
Thereafter there can be no question of once again consulting the biological parents whether they wish to give the child in adoption or they want to take it back
But in order to eliminate any possibility of mischief and to make sure that the child has in fact surrendered by its biological parents it is necessary that the Institution or Centre or home for Child Care or social or Child Welfare Agency to which the child is surrendered by the biological parents should take from the biological parents a document of surrender duly signed by the biological parents and attested by at least two responsible persons and such document of surrender should not only contain the names of the biological parents and their address but also information in regard to the birth of the child and its background health and development
If the biological parents state a preference for the religious upbringing of the child their wish should as far as possible be respected but ultimately the interest of the child alone should be the sole guiding factor and the biological parents should be informed that the child may be given in adoption even to a foreigner who professes a religion different from that of the biological parents
The biological parents should not be induced or encouraged or even be permitted to take a decision in regard to giving of a child in adoption before the birth of a child or within a period of three months from the date of birth
This precaution is necessary because the biological parents must have reasonable time after the birth of the child to take a decision whether to rear up the child themselves or to relinquish it for adoption and moreover it may be necessary to allow some time to the child to overcome any health problems experienced after birth
835 H 836A D 836G H 3 4
It should not be open to any and every agency or individual to process an application from a foreigner for taking a child in adoption and such application should be processed only through a social or child welfare agency licensed or recognised by the Government of India or the Government of the State in which it is operating
Since an application for appointment as guardian can be processed only by a recognised social or child welfare agency and none else any unrecognised institution centre or agency which has a child under its care would have to approach a recognised social or child welfare agency if it desires such child to be given in inter country adoption and in that event it must send without any undue delay the name and must send without any undue delay the name and particulars of such child to the recognised social or child welfare agency through which such child is proposed to be given in inter country adoption
The Indian Council of Social Welfare and the Indian Council for Child Welfare are clearly two social or child welfare agencies operating at the national level and recognised by the Government of India
But apart from these two recognised social or child welfare agencies functioning at the national level there are other social or child welfare agencies engaged in child care and welfare and if they have good standing and reputation and are doing commendable work in the are of child care and welfare they should also be recognised by the Government of India or the Government of the State for the purpose of inter country adoptions
But before taking a decision to recognise any particular social or child welfare agency for the purpose of inter country adoptions the Government of India or the Government of a State would do well to examine whether the social or child welfare agency 800 has proper staff with professional social work experience because otherwise it may not be possible for the social or child welfare agency to carry out satisfactorily the highly responsible task of ensuring proper placement of a child with a foreign adoptive family
The Government of India or the Government of a State recognising any social or child welfare agency for inter country adoptions must insist as a condition of recognition that the social or child welfare agency shall maintain proper accounts which shall be audited by a chartered accountant at the end of every year and it shall not charge to the foreigner wishing to adopt a child any amount in excess of that actually in cured by way of legal or other expenses in connection with the application for appointment of guardian including such reasonable remuneration or honorarium for the work done and trouble taken in processing filing and pursuing the application as may be fixed by the Court
837B H 838A D 35
Every recognised social or child welfare agency must maintain a register in which the names and particulars of all children proposed to be given in inter country adoption through it must be entered and in regard to each such child the recognised social or child welfare agency must prepare a child study report through a professional social worker giving all relevant information in regard to the child so as to help the foreigner to come to a decision whether or not to adopt the child and to understand the child if he decides to adopt it as also to assist the court in coming to a decision whether it will be for the welfare of the child to be given in adoption to the foreigner wishing to adopt it
The child study report should contain as far as possible information in regard to the following matters 1 Identifying information supported where possible by documents
2 Information about original parents including their health and details of the mother s pregnancy and birth
3 Physical intellectual and emotional development
4 Health report prepared by a registered medical practitioner preferably by a paediatrician
5 Recent photograph
6 Present environment category of care Own home foster home institution etc relationships routines and habits
7 Social worker s assessment and reasons for suggesting inter country adoption
838G H 839A E 36
The recognised social or child welfare agency must insist upon approval of a specific known child and once that approval is obtained the recognised social or child welfare agency should immediately without any undue delay proceed to make an application for appointment of the foreigner as guardian of the child
Such application would have to be made in the court within whose jurisdiction the child ordinarily resides and it must be accompanied by copies of the home study report the child study report and other certificates and documents forwarded by the social or child welfare agency 801 sponsoring the application of the foreigner for taking the child in adoption
It is also necessary that the recognised social or child welfare agency through which an application of a foreigner for taking a child in adoption is routed must before offering a child in adoption make sure that the child is free to be adopted
The recognised social or child welfare agency must place sufficient material before the court to satisfy it that the child is legally available for adoption
It is also necessary that the recognised social or child welfare agency must satisfy itself firstly that there is no impediment in the way of the child entering the country of the prospective adoptive parent secondly that the travel documents for the child can be obtained at the appropriate time and lastly that the law of the country of the prospective adoptive parent permits legal adoption of the child and that on such legal adoption being concluded the child would acquire the same legal status and rights of inheritance as a natural born child and would be granted citizenship in the country of adoption and it should file alongwith the application for guardianship a certificate reciting such satisfaction
841C D 842H 843A D 3 7
In cases where a child relinquished by its biological parents or an orphan or destitute or abandoned child is brought by an agency or individual from one State to another there should be no objection to a social or child welfare agency taking the child to another State even if the object be to give it in adoption provided there are sufficient safeguards to ensure that such social or child welfare agency does not indulge in any malpractice
There should also be no difficulty to apply for guardianship of the child in the court of the latter State
because the child not having any permanent place of residence would then be ordinarily resident in the place where it is in the care and custody of such agency or individual
843H 844A F Section 11 of the provides for notice of the application to be issued to various persons including the parents of the child if they are residing in any State to which the Act extends
But no notice under this section should be issued to the biological parents of the child since it would create considerable amount of embarrassment and hardship if the biological parents were then to come forward and oppose the application of the prospective adoptive parent for guardianship of the child
Moreover the biological parents would then come to know who is the person taking the child in adoption and with this knowledge they would at any time be able to trace the whereabouts of the child and they may try to contact the child resulting in emotional and psychological disturbance for the child which might affect his future happiness
For the same reasons notice of the application for guardianship should also not be published in any newspaper
If the court is satisfied after giving notice of the application to the Indian Council of Child Welfare or the Indian Council for Social Welfare or any of its branches for scrutiny of the application that it will be for the welfare of the child to be give in adoption to the foreigner making the application for guardianship it will only then make an order appointing the foreigner as guardian of the child and permitting him to remove the child to his own country with a view to eventual adoption
The Court will introduce the following conditions in the order namely 846A H 848A B i That the foreigner who is appointed guardian shall make proper 802 provision by way of deposit or bond or otherwise to enable the child to be repatriated to India should it become necessary for any reason
847C ii That the foreigner who is appointed guardian shall submit to the court as also to the Social or Child Welfare Agency processing the application for guardianship progress reports of the child alone with a recent photograph quarterly during the first two years and half yearly for the next three years
847D iii The order appointing guardian shall carry attached to it a photograph of the child duly counter signed by an officer of the court
817F Where an order appointing guardian of a child is made by the court immediate intimation of the same shall be given to the Ministry of Social Welfare Government of India as also to the Ministry of Social Welfare of the Government of the State in which the court is situate and copies of such order shall also be forwarded to the two respective Ministries of Social Welfare
The Ministry of Social Welfare Government of India shall maintain a register containing names and other particulars of the children in respect of whom orders for appointment of guardian have been made as also names addresses and other particulars of the prospective adoptive parents who have been appointed such guardians and who have been permitted to take away the children for the purpose of adoption
The Govt
of India will also sent to the Indian Embassy or High Commission in the country of the prospective adoptive parents from time to time the names addresses and other particulars of such prospective adoptive parents together with particulars of the children taken by them and requesting the Embassy or High Commission to maintain and unobtrusive watch over the welfare and progress of such children in order to safeguard against any possible maltreatment exploitation or use for ulterior purposes and to immediately report and instance of maltreatment negligence or exploitation to the Government of India for suitable action
847G H 848A C 38
The social or child welfare agency which is looking after the child selected by a prospective adoptive parent may legitimately receive from such prospective adoptive parent maintenance expenses at a rate of not exceeding Rs 60 per day this outer limit being subjective to revision by the Ministry of Social Welfare Government of India from time to time from the date of selection of the child by him until the date the child leaves for going to is new home as also medical expenses including hospitalization charges any actually incurred by such social or child welfare agency for the child
But the claim for payment of such maintenance charges and medical expenses shall be submitted to the prospective adoptive parent
842C D 39
If a child is to be given in inter country adoption it would be desirable that it is given in such adoption as far as possible before it completes the age of 3 years
The reason is that if a child is adopted before it attains the age of understanding it is always easier for it to get assimilated and integrated in the new environment in which it may find itself on being adopted by a foreign parent
Children above the age of 3 years may also be given in inter country adoption
There can be no hard and fast rule in this connection
Even children between the ages of 3 to 7 years may be able to assimilate themselves in the new surroundings without any difficulty
Even children 803 above the age of seven years may be given in inter country adoption but their wishes may be ascertained if they are in a position to indicate any preference
845D G 310
The proceedings on the Application for guardianship should be held by the Court in camera and they should be regarded as confidential and as soon as an order is made on the application for guardianship the entire proceedings including the papers and documents should be sealed
841C D 311
The social or child welfare agency which is looking after the child selected by a prospective adoptive parent may legitimately receive from such prospective adoptive parent maintenance expenses at a rate of not exceeding Rs 60 per day this outer limit being subject to revision by the Ministry of Social Welfare Government of India from time to time from the date of selection of the child by him until the date the child leaves for going to its new home as also medical expenses including hospitalisation charges if any actually incurred by such social or child welfare agency for the child
But the claim for payment of such maintenance charges and medical expenses shall be submitted to the prospective adoptive parent through the recognised social or child welfare agency which has processed the application for guardianship and payment in respect of such claim shall not be received directly by the social or child welfare agency making the claim but shall be paid only through the recognised social or child welfare agency
However a foreigner may make voluntary donation to any social or child welfare agency but no such donation from a prospective adoptive parents shall be received until after the child has reached the country of its prospective adoptive parent
842C G