Prospective adoptive parents, who’ve been waiting an eternity to bring home a child, say the stay order on the new amendment fast-tracking adoption orders has only added to their woes. But, activists argue you can’t keep judiciary out of the process
Businessman Abhinav Krishan Aggarwal fought a long battle for the custody of his seven-year-old adopted son. Aggarwal had skipped the CARA procedure as he found it time-consuming, only to be dragged into a child trafficking case in 2017. Aggarwal with his family at their Delhi home. Pics/Nishad Alam
The child adoption system in our country is flawed,” businessman Abhinav Krishan Aggarwal voices out, over a telephone call. Aggarwal’s disillusionment stems from his and wife Renuka’s experience of adopting a toddler from Mumbai around six years ago. The couple already had a college-going daughter then. “One of our relatives was undergoing IVF treatment and was approached by Pawan Sharma who ran the centre. He told them that they could adopt a boy through a Mumbai-based NGO called First Step,” says the 44-year-old Delhi-resident. “He showed us a photo of an infant and told us that his mother was unable to raise him and wanted to give the baby up for adoption. While our relative was not keen, we decided to adopt the child instead.” As the procedures prescribed by Central Adoption Resource Authority (CARA) under the Juvenile Justice Act (JJ Act) were lengthy and time-consuming, Aggarwal contacted Sharma and directly adopted the baby.” They became legal parents to the boy in 2016, and even enrolled him in a preschool in Delhi later that year.
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In February 2017, Aggarwal received his son’s birth certificate, and assumed that all paperwork had been completed. A few months later, his child was taken away from him, after the police unearthed a child trafficking racket. The Mumbai police booked Aggarwal, his wife and six other couples who had also adopted kids through Sharma, under various sections of the IPC for human trafficking. The boy was sent to an NGO-run charitable home in Chembur. After seeking bail, Aggarwal and the other parents appealed to CARA to secure custody of their children in 2019; they even filed adoption petitions before the Mumbai Civil Court. It was only after a long legal battle that he received custody of his son in 2020, under the Hindu Adoptions and Maintenance Act, 1956. The child is now seven years old. The act deals specifically with the legal process of adopting children by a Hindu adult.
Today, Aggarwal runs a non-profit to help and support parents trapped in adoption cases. “There are lakhs of children in orphanages, but only a few thousand get adopted every year,” he says, adding, “The waiting period for adoption is at least three to three-and-a-half years and even more in many cases. This is preventing many parents from taking the legal route.”
Last year’s notification of the Model Amendment Rules 2022, to implement the Juvenile Justice (Care and Protection of Children) Amendment Act 2021, has thrown yet another spanner in the works, he thinks. The notification, that came into force in September last year, granted District Magistrates (DMs) the power to issue adoption orders, which so far was the domain of district courts. “DMs already have a lot of administrative work to deal with; how will they handle cases of malpractices [in adoption]?” asks Aggarwal, “passing on the power to an executive/administrative officer is not a solution. We need a separate judicial body or a designated court for child adoptions.”
On October 6 last year, Kandivli-resident Nisha Pandya filed a petition in the Bombay High Court, through advocates Vishal Kanade and Sameer Sawant, challenging this very notification.
At present, parents seeking to adopt, need to file an application with CARA, following which the applicant’s financial stability, health condition, among other parameters, are scrutinised. A waiting number is handed out to acquire a match as per their requirement. Once prospective adoptive parents (PAPs) approve the profile of a shortlisted child, they are allowed to meet him/her. According to CARA, around 25,000 PAPs register each year, and they have to wait at least two years before being matched with a child.
Arun Dohle and Anjali Pawar Kate
Both CARA and the Union Ministry of Women and Child Development have defended the new notification arguing that giving authority to DMs will “speed up the resolution of adoption cases, reduce unnecessary delays, and improve accountability”. According to officials, the DM or the additional DM (authorised by the DM) will issue adoption orders within two months of the date of filing of the application, saving significant time.
Pandya’s petition, which will be heard on March 21, has, however, led to a subsequent stay on this notification, leaving many PAPs disgruntled and divided on the issue.
Shilpa Bhatt, who had registered with CARA in 2019, welcomed her seven-year-old daughter in September 2022. The adoption procedure was successfully completed, but the Bhatts are now facing new issues, because the hearing with the DM is still pending. “We were told by the agency that the hearing would be held two months after we took our daughter home,” says the Borivli-resident, “it’s been close to six months now... The hearing date was scheduled for January 11, but it was cancelled and we weren’t given a reason,” Bhatt is unaware about the stay on the notification.
She is still waiting for her daughter’s documents, essentially the birth certificate. “She has been excited about going to school ever since she came home. No school will admit her without the birth certificate. I can’t even get her Aadhaar card. She is missing out on a very crucial phase of her life.”
Kandivli-resident, who has been on the wait list since she registered for adoption in July 2020, says such delays only leave PAPs dejected. “I was 37 when I registered on CARA; today, I am 40. I have a biological child, who is now seven. When we registered, they told us that the process will take two-and-a-half years. But, first the pandemic, and now the stay on the amendment, has increased the wait time. This is quite frustrating,” she says, adding, “Going by the history of some cases I know, those who registered in 2018 and 2019 are getting their babies now. I haven’t even matched with a child.”
Another PAP, a resident of Chembur, said that when she registered with CARA in 2020, her wait list was over 2,000. She is now 600 on the waitlist. “The process has taken very long. Irrespective of who passes the adoption order, the DM or courts, the system needs to be fast-tracked.
Despite having so many legally free-for-adoption babies, prospective parents have such long wait lines.”
While Pandya remained unavailable for comment, experts and activists feel that the petition has come at the right time.
A Mumbai-based adoption lawyer, on condition of anonymity said that though the government, through the amendment, is looking at fast-tracking cases to make it easy for parents, “what is being ignored here is the safety, welfare and interest of the child/adoptee”. “A court’s parens patriae intervention is required in child adoption cases in order to protect the child’s welfare. This cannot be a recommendation left to non-judicial/bureaucracy handled by administrative staff without any judicial training or experience to determine the safety and welfare of the child.”
According to the lawyer, there are cases where children are adopted and then abandoned—“how will the DMs and additional DMs handle this? By making the process administrative, the government is taking away the judicial security of the child.” Activist-advocate Anjali Pawar Kate fears it could lead to a rise in malpractices as there’s a risk of “cases and documents not being checked thoroughly”.
Arun Dohle is co-founder of NGO Against Child Trafficking (ACT). An adoptee himself, Dohle says involving DMs “takes away checks and balances”. According to the JJ Act, the district magistrates will also independently evaluate the functioning of District Child Protection Units, Child Welfare Committees (CWCs), Juvenile Justice Board (JJB), and Specialised Juvenile Police Units, child care institutions. An amendment in 2015 had transferred control of the adoption process from the (JJB) and Child Welfare Committee (CWC) to the district courts. “Now, essentially the DM is in charge of the CWC and the DM issues administrative adoption orders,” says Dohle. Kate feels that this is a clear case of conflict of interest. Dohle says that at present, the Act states that a PAP aggrieved by an adoption order can appeal against the decision to the divisional commissioner. “This does not guarantee judicial control over the appeals process.”
Fewer people are adopting
According to adoption statistics of the Central Adoption Resource Authority (CARA), the number of children adopted within the country declined from 5,693 in 2010 to 3,142 in 2020-21. It further dropped to 2,991 in 2021-22.
The number of children taken in inter-country adoption decreased from 628 in 2010 to 417 in 2020-21, recording a marginal decline to 414 in 2021-22. Even the Parliamentary committee, headed by BJP Rajya Sabha Member Sushil Kumar Modi in August 2022, had expressed concerns over the declining number of adoptions.
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