There is confusion over implementation of new adoption rules that require transfer of adoption petitions from courts to District Magistrates, and parents, adoption agencies and activists are worried that this could lead to further delays in a long and arduous procedure.
Thirty four-year-old Meera Mehta* in Ahmedabad applied for adoption on Central Adoption Resource Authority’s (CARA) portal in February 2019. After a long wait, she was referred a seven-month-old girl on June 22 this year. The following month she brought home the girl under pre-adoption foster care pending a formal adoption order from the court which gives legal status to the adoption. A petition was then filed the same month before the local court to obtain an order. Since then the court has completed receiving evidence, and hearing arguments and her lawyers were confident that an order would be passed by September end. But the judge has now conveyed that he can’t proceed with the case as it has to be transferred to the District Magistrate as per the amended adoption rules.
“We have already spent more than two months on the court process and I am worried that the new rule will delay the entire process, and we will have to start all over again,” Ms. Mehta told The Hindu.
Her case is among 1,000 cases pending before courts across the country and now in limbo. Nearly, 3,500 adoptions are completed every year.
The Parliament in July 2021 passed the Juvenile Justice (Care and Protection of Children) Amendment Bill, 2021, which empowers DMs to give adoption orders. Ironically, the intent of the amendment was to prevent court-related delays during adoptions because of a large number of pending cases. The amendments came into effect from September 1, according to a gazette notification issued on August 31. Thereafter, amendments to the Juvenile Justice (Care and Protection of Children) Model Rules, 2016 were notified which state, “all the cases pertaining to adoption matters pending before the Court shall stand transferred to the District Magistrate from the date of commencement of these rules.”
Adoption agencies, lawyers and activists say there is confusion in the entire system about the requirement to transfer the cases from courts to DMs as well as the status of the court orders passed on or after September 1 after several months of court proceedings. The regulations detailing the procedure to be followed by the DMs as well as defining the roles of various agencies and authorities involved too are yet to be notified.
“The District Magistrate office tells us that they have not received any instructions about adoptions. Judges say they don’t have any information either. We obtained an adoption order for a Bangalore-based couple on September 2, but the law is not clear on whether that will now be nullified or will have to be ratified by a DM. To my knowledge though, city civil courts and district courts are higher in hierarchy than DM’s court,” said Bengaluru-based lawyer Anthony E.X.
In the absence of an adoption order parents can’t obtain birth certificates for adoptees which impacts school admissions. In one case adoptive parents had to admit their child to a hospital, but they can’t claim health insurance yet. Worse, in case of inter-country adoptions by foreigners or NRIs who live abroad, parents can’t take home a child without the court order and a passport.
The Bengaluru lawyer says that courts should be allowed to close adoption cases that have already been brought before them, and only fresh petitions filed after September 1 should be sent to DMs to avoid any inconvenience. Adoptions in India are infamous for being a lengthy process that take up to three years to conclude, primarily because there are only 2,188 children available for adoption as per the latest figures while there are nearly 31,000 parents waiting to adopt a child.
A senior CARA official told The Hindu that there were nearly 1,000 adoption cases already before the courts across the country and the Ministry of Women and Child Development (MWCD) was preparing a letter to be sent to State governments to convey that cases that had not been disposed of by courts could be transferred to the DMs. He added that DMs were also being told that where a court has either granted an order or is expected to do so shortly, they should be considered valid. A training workshop planned for them has not yet taken place though MWCD has held online consultations with State government officials and CARA has held them for District Child Protection Units and adoption agencies.
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“Adoptions need to be dealt with very sensitively. For the parents who have been waiting for several years, this is an extremely emotional time. Children in shelter homes are also being deprived of emotional support and a family environment. We must never forget the best interest of the child, and, therefore, the government needs to work on a war-footing to address the uncertainty in the system,” remarked Santosh Koulagi, Secretary, Janapada Seva - an adoption agency in Melkote, Karnataka. His agency has six cases pending before the Principal District Judge court in Mandya.
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He and others have also raised questions about how DMs, who have the responsibility of the entire district, will be able to ensure timely disposal of adoption cases and whether these could be susceptible to corruption and bribery.
(*Name changed on the request of the adoptive parent)
