Facts in Brief

This writ petition was initiated on the basis of a letter addressed by the Petitioner, complaining of malpractices indulged in by social organisations and voluntary agencies engaged in the work of offering Indian children in adoption to foreign parents — who, according to the Petitioner, were being used for illegal purposes such as child sexual abuse, cheap labour and other similar work. The Petitioner accordingly sought relief restraining Indian-based private agencies from carrying out any further activity of routing children for adoption abroad.

Judgment

The Court expressed its concern that children needed special protection owing to their tender age and physique, mental immaturity, and incapacity to look after themselves. It also observed that they must be brought up in an atmosphere of love and affection, 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, self-respect and a balanced view of life.

Commenting upon the practice of adoption, the Court held that it was the well-being of the child which was of the utmost importance, and if the foreigner who wanted to take the child in adoption was found to be genuinely interested, the child may be given in adoption to him. However, the Court also warned that while supporting the practice of inter-country adoption, it was necessary to ascertain that the primary object of giving the child in adoption was the welfare of the child. Great care was to be exercised in permitting the child to be given in adoption to foreign parents, lest the child be neglected or abandoned by the adoptive parents in the foreign country; or the adoptive parents be unable to provide the child a life of moral or material security; or the child be subjected to moral or sexual abuse, forced labour or experimentation for medical or other research, and be placed in a worse situation than in his own country.

The Court thereupon laid down the procedure for giving a child in adoption to foreign parents, summarised as follows:

• 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.
• 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 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.
• 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; such an 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.
• The entire procedure — including preparation of the child study report, making of necessary enquiries, and taking of requisite steps leading up to 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.
• If a child is to be given in inter-country adoption, it would be desirable that it be given in such adoption, as far as possible, before it completes the age of three 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 into the new environment in which it may find itself on being adopted by a foreign parent.

For the Common Man

This judgment reflects the concern for the special protection of children. This case is also notable for the fact that it marked the trend of the Court framing guidelines and providing procedure — a task earmarked for the executive — in the absence of any statutory rules being provided for the same by the executive.