ABSTRACT:
Cross-border or intercountry adoption is the process which a person or family adopts a child situated in a different country from their own. Cross-border adoption can afford children a stable and nurturing environment, but navigating the channels of law, culture, and ethics is not without obstacles. This article offers a comparative overview of the cross-border adoption systems in India and France, two countries that have ratified the Hague Convention on Intercountry Adoption (1993).[1]
India tends to rely on a centralized system, under a closely regulated process by the Central Adoption Resource Authority (CARA), within the statutory framework created by the Juvenile Justice Act, 2015[2] and the Guardians and Wards Act, 1890. France, however, tends to be looser and more decentralised, utilizing its Civil Code while bringing in various state or accredited private entities to assist in carrying out this work.
Using this comparative lens, the article has analysed some of the major similarities and differences between the legal processes, qualifying factors, considerations for cultural factors and distribution of post-adoption duties. The article has also identified challenges such as administrative delays, lack of transparency and the necessity of ongoing adherence to international standards.
Ultimately, this research provides clarity as to how India and France attend to the tension of state involvement and the emotional and developmental needs of the child and recommends options for implementing child-centric and ethical cross-border adoptions.[3]
KEYWORDS: Cross Border Adoption, India, France, Comparative Analysis
INTRODUCTION:
Cross-border adoption is also called intercountry adoption. It legally allows individuals or couples to adopt children from countries that are different from their own. With the increasing number of orphaned or abandoned children throughout the world and the rise of families willing to help care for children beyond their local jurisdiction has profoundly expanded the importance of cross-border adoption. However, cross-border adoption deeply engages legal issues, cultural sensitivities, and ethical concerns that vary from jurisdiction to jurisdiction.
International bodies have adopted various instruments, including the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (1993), which has established safeguards to pursue the best interests of the child in cross-border adoptions and to prevent abuses of the adoption process, including trafficking. Even though there are general frameworks in place, countries recognise and apply adoption laws in divergent ways, resulting in differences in process, eligibility and child welfare safeguards.
FACTORS CONSIDERED IN CROSS-BORDER ADOPTION
- Legal and Regulatory Variation: Every country has its unique set of adoption laws and regulations, and future adoptive parents need to familiarise themselves with the adoption requirements of their country and the child’s country of birth to ensure they comply with all legal regulations.
- Cultural Sensitivity: International adoption typically means the child will be coming from a different culture. Adoptive parents must be prepared to acknowledge and embrace the child’s culture while remaining connected to the child’s country of origin.
- Adoption Agencies: Adoption agencies have an important role to provide education as part of the home study process, and to help match adoptive parents with a child who is a good fit in terms of family dynamics and characteristics.
- Consent and Transparency: Birth parents or legal guardians need to provide the consent needed for an adoption to take place. Furthermore, transparency is particularly important throughout the process so that everyone understands what the ramifications and consequences of the adoption are.[4]
LEGAL FRAMEWORK FOR CROSS-BORDER ADOPTION:
INDIA:
India’s legal implementation of intercountry adoptions is organized by a detailed legal framework designed to uphold the welfare of the child and promote ethical adoption practices. The statutes provide the legal basis for adoption in India; following are the main legal bases for intercountry adoptions:
- Juvenile Justice (Care and Protection of Children) Act, 2015:[5]
This Act mainly addresses intercountry adoption and contains all the regulations and considerations based on the best interests of the child for the adoption process (both domestic and intercountry).[6]
- Guardians and Wards Act, 1890:
If the Juvenile Justice Act does not apply, the Guardianship and Wards Act is a possible legal route that specifically covers guardianship only.
- Central Adoption Resource Authority (CARA):
In effect since 1990, CARA is the central authority for adoption in India (in-country and intercountry) and ensures that international adoptions conform with the Hague Convention. CARA also provides the information and services, including funding and institutional support to build a centralized database of “available” children waiting to be adopted and “competent” adults waiting to adopt.
India, formally ratified the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption[7] in 2003, enhancing its commitment to ethical adoption practices and international cooperation.
FRANCE:
France’s intercountry adoption laws are designed to balance children’s interests and the rights of adoptive parents.
- French Civil Code:
The French Civil Code sets out the legal process for adoption. There are two forms of adoption, simple and plenary. Plenary adoption is irreversible and legally separates all ties of kinship between the child and his/her biological family.
- Mission de l’Adoption Internationale (MAI):
MAI is France’s Central Authority responsible for keeping the process of intercountry adoptions in line with French law and with international agreements and conventions, such as the Hague Convention.
- Tribunal de grande instance:
Have jurisdiction over adoption cases and must determine if an adoption protects the child’s best interests and that the laws were adhered to.
While France ratified the Hague Convention in 1998, it was just a formality to align the requirements of its adoption process with international law, as that law was already sufficient to prevent trafficking of children and for ethical concerns.
COMPARATIVE ANALYSIS: INDIA VS. FRANCE:
Similarities:
- Hague Convention participants:
Both India and France are both members of the Hague convention on Intercountry Adoption, with India ratifying the Convention in 2003 and naming its Central Authority as the Central Adoption Resource Authority (CARA) and France ratifying the Convention in 1998 and holding the Mission de l’adoption internationale (MAI) as the new Central Authority.
- Child-centered:
Both India and France proceed through processes in which they consider best interests of the child an essential component of Intercountry Adoptions, and that Intercountry adoptions are under a legal and ethical process that does not allow for the abduction, sale, or trafficking.
- Isolated procedures:
Both India and France have procedures in place for Intercountry Adoption that includes eligibility consideration, home study assessments, matching considerations with children’s and families post adoption assessments.
Differences
Legal context and authority:
India:
The adoption process for children is governed by the Juvenile Justice (Care and Protection of Children) Act, 2015 ( see 23), and CARA governs the process. The processes include judicial involvement with a District Magistrate/District Judge being responsible for providing the adoption decree per the adoption order.
France:
The adoption process is based in the French Civil code and MAI is used as an administrative co-coordinator of Intercountry Adoptions. In general, authorities approve adoptions more without referring them to the courts as a more administrative process.
Types of Adoption:
India: Only full adoptions are legally recognized in India, meaning that all ties with the biological family will be severed.
France: Both plenary (full) and simple adoptions exist. A plenary adoption means that all legal ties with the biological family will be severed. Simple adoption means that the adoption will allow the child to maintain some rights and relationships.
Eligibility Criteria for Adoptive Parents:
India: Prospective adoptive parents must meet certain age, marital status, and financial requirements. A single individual or married couple is eligible to adopt a child, but same-sex couples cannot adopt.
France: An individual must be over 28 years old to adopt a child, single persons and same-sex couples are eligible. The law states that adoptive parents must be at least fifteen years older than the child.
Cultural and Religious Factors:
India: The matching process considers children’s and the prospective adoptive family’s cultural, religious, and linguistic backgrounds; these factors are important for the child’s long-term well-being.
France: The adoption process in France is secular in nature and does not emphasise affiliation.
Post-Adoption Follow-up:
India: CARA requires follow-up reports twice a year for two years after an adoption is finalized to monitor the child’s well-being.
France: The French authorities require several years of annual progress reports post-adoption. Public services provide the family with follow-up support to assist the child in achieving family and societal integration.
CHALLENGES IN CROSS-BORDER ADOPTION:
Legal and Procedural Complexities:
India:
In India, the adoption process is regulated by the Juvenile Justice (Care and Protection of Children) Act, 2015, and the Adoption Regulations, 2022. While these two Acts represent attempts to create a complete process, the Indian adoption process remains bureaucratic and much longer than generally anticipated, with considerable waiting times and requirements for multiple levels of approval, including a No Objection Certificate (NOC) from the Central Adoption Resource Authority (CARA). After reviewing the practices of CARA, the Delhi High Court voiced concerns regarding the challenges encountered by prospective adoptive parents in dealing with CARA for NOCs, stating, “It cannot be a burdensome exercise, and if procedures for CARA issue NOCs as prescribed in the adoption regulations, then it is in the interest of children.”
France:
France has developed relatively straightforward procedures for adoption under its Civil Code; however, adopting children from countries that are not Hague Convention signatories incurs different challenges. Even if the foreign court issued a decree of adoption, its validity may not be recognized by the French government if the adoption does not follow the requirements set out by French law. The co-existence of plenary or simple adoptions in France can create further problems for prospective parents in determining the exact legal implications of either adoption path.[8]
CONCLUSION:
Adoptions across borders is an important legal and humanitarian medium allowing at-risk children the chance to grow and thrive in caring, loving, and safe environments across borders. With India and France both being parties to the Hague Convention on Adoption of Children, they have both established frameworks to provide the guideposts to establish international adoptions and assure transparency, legitimacy, and the best interests of children. Each country’s legal framework is comparable to many of the international standards, but also reflects its respective unique social, legal, and cultural frameworks.
India has an adoption cycle based on the Juvenile Justice (Care and Protection of Children) Act of 2015 and CARA (Central Adoption Resource Authority), which consists of a very complete and thorough adoption process focusing on compliance with legal standards and protection of children. However, adoption in India has a reputation for being heavily bureaucratic and therefore,e can be an arduous, slow, and time-consuming process. France, through its Civil Code and MAI (Mission d’Accueil et d’Information), also follows a structure for adoption that is somewhat convoluted, albeit with only two forms of adoption (plenary and simple). France’s process further distinguishes itself by requiring the approval of adoptive parents to ensure they are prepared to be parents.
Despite these procedural differences, both nations prioritise promoting children’s rights and ethical practices. However, administrative delay, cultural discrepancy, and legal conflict could arise as obstacles to inter-country cooperation, particularly about post-adoption integration or in the recognition of the legal status of adoption. However, both France and India will be able to surmount these barriers through bilateral cooperation, strict adherence to international agreements and standards, and reform to create efficiencies where feasible.
Ultimately, India and France may practice differently, and have different legalities and procedures regarding international adoption, but both nations espouse the principles of the Hague Convention and are adopting of ethical, child-centred practices. Gaps in processes need to be understood and improved, and inter-country cooperation needs to be improved in an effort to strengthen adoption systems and support the best interests of vulnerable children.
[1]Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, May 29, 1993, 1870 U.N.T.S. 167.]
[2]The Juvenile Justice (Care and Protection of Children) Act, No. 2 of 2016, India Code (2016).
[3]https://assets.hcch.net/docs/bb168262-1696-4e7f-acf3-fbbd85504af6.pdf
[4]Tehreem Fazal Qureshi, International Adoption Law – Navigating Cross-Border Family Building, MEDIUM, https://medium.com/@TehreemFazalQureshi/international-adoption-law-navigating-cross-border-family-building-1207ee0694f7.
[5]https://en.wikipedia.org/wiki/Juvenile_Justice_(Care_and_Protection_of_Children)_Act,_2015
[6]https://cara.wcd.gov.in/pdf/jj%20act%202015.pdf
[7]https://assets.hcch.net/docs/77e12f23-d3dc-4851-8f0b-050f71a16947.pdf
[8]Inter-country adoptions: Issuance of NOC to prospective adoptive parents can’t be made onerous, HC to CARA, The Economic Times, https://economictimes.indiatimes.com/news/india/inter-country-adoptions-issuance-of-noc-to-prospective-adoptive-parents-cant-be-made-onerous-hc-to-cara/articleshow/104532028.cms?from=mdr.