A division bench of Justice B.D. Ahmed and Justice Siddhartha Mridul said “there must be some kind of control” on how to deal with the adoption process in the country.
The bench remarked that there were chances that people may sell their children because of poverty, which has to be controlled.
The court was hearing a plea whether an adoption in which the child is given directly by the biological parents of a child to another person for adoption, without the intervention of the Central Adoption Resource Authority (CARA), is valid in the eyes of the law.
CARA is an autonomous body under the ministry of women and child development and functions as the nodal body for adoption of Indian children.
It is mandated to monitor and regulate in-country and inter-country adoptions.
Appearing as amicus curiae, advocate Maninder Acharya told the court that in the interests of the children being adopted, a specialised adoption agency would need to intervene in the matter.
“Rehabilitative measures for children in need of care and protection through means of adoption applies not only to orphaned and abandoned children but also to surrendered children,” the lawyer said.
According to CARA, the term “surrendered children” would include “children given in adoption by their biological parents directly to adoptive parents”.
“It is not unknown that children are often adopted and taken away from their country of origin for the purposes of trafficking, gaming, clinical trials and other pernicious activities. Therefore, the checks and balances which have been provided in the 2011 guidelines perhaps are required to be adhered to even in cases of direct adoption,” the lawyer said.
The single court in January last year had referred the matter to the division bench, saying the issue needed examination by a larger bench, where two petitions were filed on direct inter-country adoption.
One petitioner was a woman doctor from the US who had adopted a child from a couple in Uttar Pradesh. She got the adoption deed registered but when she applied for the passport of the child, the passport authority refused to give a passport saying she has to obtain a “no objection certificate from CARA which refused to give her the NOC.
The second petitioner was a couple from the US who adopted a child from a single mother who remarried after the death of her first husband.
CARA also refused to give a NOC to the couple when they applied for the child’s passport.
The advocate said that in both cases, the adoptive parents took the route of direct adoption, which in a sense “excludes the checks and balances provided in the best interests of the child at the pre-adoption, adoption and post-adoption stages”.
The counsel told the court that the Indian government June 27, 2011 notified guidelines governing adoption of children in furtherance of provisions contained in the Juvenile Justice Act and the Hague Convention of 1993, to which India became a signatory in 2003.
The court posted the matter for further hearing to Jan 19.
The adoptive parents, however, said CARA has “no role” to play in the facts and circumstances of the case as the “children were given in adoption to their respective adoptive parents by their biological parents”.
The intercession of CARA was mandated only in cases of those children who are orphaned or abandoned by their biological parents, the adoptive parents said.