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PETITIONER: LAKSHMI KANT PANDEY

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT06/02/1984

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. PATHAK, R.S. SEN, AMARENDRA NATH (J)

CITATION:  1984 AIR  469            1984 SCR  (2) 795  1984 SCC  (2) 244        1984 SCALE  (1)159  CITATOR INFO :  E          1987 SC 232  (4,5,8)  RF         1990 SC1413  (14)  RF         1990 SC1480  (52)

ACT:      Adoption   of   Children   by   foreigner-International adoptions-Normative and Procedural safeguards to be insisted upon so  far as  a foreigner  wishing to  take  a  child  in adoption,  outlined-Constitution  of  India,  1950  Articles 15,24 and  39 and Guardian and Wards Act (Act VIII of 1890), Sections 7 to 9 and 11.

HEADNOTE:      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

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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 Guardians and Wards  Act   1890  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

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family where it may be neglected, maltreated or exploited by the adoptive parents. [828B-E]      Rasiklal Chaganlal  Mehta’s case  A.I.R.  1982  Gujarat 193, approved.      3: 1. 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

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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

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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

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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]      3:5. 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

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         suggesting inter-country  adoption. [838G-H; 839A-           E]      3:6. 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  Guardians  and  Wards  Act,  1890 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

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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]      3:8. 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]      3:9. If  a  child  is  to  be  given  in  inter-country

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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]      3:10.  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]      3:11. 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]

JUDGMENT:      ORIGINAL JURISDICTION:  Writ Petition (CRL) No. 1171 of 1982.      Under article 32 of the Constitution of India.      Petitioner in person.      FOR THE RESPONDENTS:      Miss A.  Subhashini for  Union of India and Ministry of Social Welfare.      Miss  Kamini  Jaiswal  for  Indian  Council  of  Social Welfare.      J.B. Dadachanji  & Co.  for  Indian  Council  of  Child Welfare and Swedish Embassy.      Dr. N.M.  Ghatate for  all God’s Children Inc. Arizone, U.S.A.      P.H. Parekh  for Maharashtra  State Women’s  Council of Child Welfare, Bombay and for Enfants de-L’espoir. 804      P.K. Chakeravorty for Legal Aid Service, West Bengal.

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    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.      G.M. Coelho Bar at Law for Enfant’s du Mande (France)      Miss Rani Jethamalani for Kuanyin Charitable Trust.      B.M. Bageria for Terre Des Hommes (India) Society.      Sukumar Ghose  for Mission  of  Hope  (India)  Society, Calcutta.      S.K. 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

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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. S.O.S,  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  S.O.S,  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  S.O.S. 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 S.O.S. 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

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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

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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

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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

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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

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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.

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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  U.N.  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

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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, U.K. on 4th September, 1982, recognise the validity of  this principle  in clause  3.1 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, U.K. 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

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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:           "Art. 2.  It is  recognised that  the  best  child      welfare is good family welfare.           4. When  biological family  care is unavailable or      in  appropriate,   substitute  family  care  should  be      considered.           7. 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.           8.  Children   for  whom  institutional  care  was      formerly regarded  as the  only option should be placed      with families, both foster and adoptive.           12. The  primary purpose of adoption is to provide      a permanent  family for a child who cannot be cared for      by his/her biological family.           14. In  considering possible  adoption placements,      those responsible  for the child should select the most      appropriate  environment   for  the   particular  child      concerned.           15.  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.           16. Legislation  and services  should ensure  that      the child  becomes an  integral part  of  the  adoptive      family.           17. The need of adult adoptees to know about their      background should be recognized.           19. 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.           21. 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.           22.  Proxy   adoptions  are   not  acceptable,  in      consideration of the child’s legal and social safety.           23. 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

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    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.           24. In  inter-country adoptions,  legal validation      of the  adoption should  be assured  in  the  countries      involved.           25. 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, U.K. 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, U.K. There  are  quite  a  few  of  these  guidelines  which  are important and which deserve serious consideration by us:           "1.4. In  all inter-country adoption arrangements,      the welfare of the child shall be prime consideration. Biological Parents:           2.2. 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           2.3. 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.           2.5. 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.           2.6. Parents should be encouraged, where possible,      to provide information about the child’s background and      development, and their own health.           2.8. 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.           2.9. 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.           2.10.  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:           3.1. 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.           3.2. A  child-study report  shall be  prepared  by

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    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 him/her.           3.3 As  far as  possible, the  child-study  report      shall include the following:           3.3.1. Identifying  information,  supported  where      possible by documents.           3.3.2.   Information   about   original   parents,      including their  health and  details  of  the  mother’s      pregnancy and the birth.           3.3.3.  Physical,   intellectual   and   emotional      development.           3.3.4. Health report.           3.3.5. Recent photograph.           3.3.6. Present  environment-category of  care (Own      home, foster  home, institution,  etc.)  relationships,      routines and habits.           3.3.7. Social  Worker’s assessment and reasons for      suggesting inter-country adoption.           3.4. Brothers  and sisters  and other children who      have been cared for as siblings should not be separated      by adoption placement except for special reasons.           3.5. 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      his/her age and level of development. Information about      the child’s  new country  and new home, and counselling      shall be provided by a skilled worker.           3.5.  (a)   Before  any   adoption  placement   is      finalized the  child concerned  shall be consulted in a      manner  appropriate   to  his/her   age  and  level  of      development.           3.6. When  older children are placed for adoption,      the adoptive  parents should  be encouraged  to come to      the child’s  country of  origin, to meet him/her there,      learn 821      personally about  his/her first  environment and escort      the child to its new home. Adoptive Parents:           4.3.  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.           4.4. 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.           4.5. The  report on the family study which must be      made  in   the  community   where  the  applicants  are      residing, shall include details of the following:           4.5.1. Identifying  information about  parents and      other members  of the  family, including  any necessary      documentation.

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         4.5.2. Emotional  and intellectual  capacities  of      prospective adopters, and their motivation to adoption.           4.5.3. Relationship  (material, family, relatives,      friends, community)           4.5.4. Health.           4.5.5. Accommodation and financial position.           4.5.6. Employment and other interests.           4.5.7. Religious affiliations and/or attitude.           4.5.8.  Capacity   for  adoptive  parenthood,  and      details  of   child  preferred  (age,  sex,  degree  of      disability).           4.5.9. Support  available from relatives, friends,      community.           4.5.10. Social  worker’s assessment and details of      adoption authority’s approval. 822           4,5.11. Recent photograph of family.      Adoption Authorities and Agencies:           5.1. 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.           5.2. 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.           5.3. 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.           5.4. 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.           5.5. 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.           5.6.  XX           XX             XX            XX           5.7. 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           5.8. 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.           5.8.1. In  cases  where  the  adoption  is  to  be

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    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.           5.9. 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:           6.1.  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.           6.2. XX          XX            XX             XX           6.3. 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:           7.1. Family:           It is  essential that  in  inter-country  adoption      child is  given the  same legal  status and  rights  of      inheritance, as if she/he had been born to the adoptive      parents in marriage.           7.2. Name:           When the  legal adoption  process is concluded the      child shall have the equivalent of a birth registration      certificate.           7.3. Nationality:           When the  legal adoption  is concluded,  the child      shall be granted appropriate citizenship.           7.4.  XX          XX           XX            XX           7.5. 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

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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 Guardians and Wards Act 1890 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

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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                Guardians and  Wards Act,  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,                Guardians and  Wards Act, 1890 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."

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    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  Mehta,(1) 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      publicly/officially 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

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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  Ex. ’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

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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 Guardians and Wards Act 1890. 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

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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

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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

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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

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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

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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

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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

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              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

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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

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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

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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

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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 Guardians and Wards Act, 1890 provides for  notice of  the application  to  be  issued  to

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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

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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

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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. S.R. 850                         ANNEXURE-’A’ 1.   Source of Referral. 2.   Number of single and joint interviews. 3.   Personality of husband and wife.

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4.   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. 6.   Nature and Adjustment with occupation. 7.   Relationship with community. 8.   Description of home. 9.   Accommodation for the child. 10.  Schooling facilities. 11.  Amenities in the home. 12.  Standard of living as it appears in the home. 13.  Type of neighbourhood. 14.  Current relationship between husband and wife. 15.  (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. 16.  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. 24.  Reasons for wanting to adopt an Indian child. 25.   Attitude of  grand-parents and  relatives towards  the      adoption. 26.  Attitude   of   relatives,   friends,   community   and      neighbourhood towards adoption of an Indian child. 27.  Anticipated plans for the adopted child. 28.  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. 33.  Name and  address of  the agency  conducting  the  home      study. Name  of social  worker, qualification of social      worker. 34.  Name  of   agency  responsible   for  post   placement,      supervision and follow up. 853