This Article is written by Siddhi Agrawal, a Thid Year Law Student of Manikchand Pahade Law College Aurangabad, Maharashtra

INTRODUCTION-

It is indeed what has been widely discussed about human rights as well as the expectation to be one among citizens. These range from children's rights to family rights. Indeed, what has been based on the history of the Nazi State and its impact is a base of different systems, including frameworks, but the idea is universal itself. The topic of foster care and adoption is very often debated as there are various points regarding whether either of the options is a good idea or not. Other arguments have been targeted around the preparedness of carer parents towards making good impacts for children while other arguments state that unstable living conditions may be for children if there are conditions changes and impermanence of foster care. Adoption is usually a positive step; the children get to stay in a safe, loving home that is available. No one said adoption would be an easy process.

This research paper tries to go deep into the issues of foster care and adoption by analysing the positives and negatives of the former and the latter, and based on the theories, research articles, and experts' opinions, it throws out current opinions about the problem, does pros vs. cons analysis, and gives a conclusion after evaluating the strength and the value of the evidence put forward.

ADOPTION AND FOSTER CARE ON THE DIFFERENT SIDES OF SCALES-

● Adoptive parents will be the legal guardians of a child, and they will acquire all the rights, privileges, and responsibilities associated with a biological parent by legally severing the bond between a child and his or her biological parents.

● Children may reside in foster care with prospective adoptive families before adoption, up to the point when a court completes the adoption process.

● Government and organization-based Specialized Adoption Agencies provide shelter to orphaned, abandoned, or otherwise parents-d deserted children.

The Indian adoption history dates back centuries. The motives for adoption are exceedingly varied, and range from the desire to care for and support a child who needs it to the natural want for a child to complete one's family unit, to even an effort to have a child as someone with whom one will spend one's future married life or with whom one will share an inheritance. However, the legal aspects are influenced by different religions' laws, leading to a variety of legal frameworks across different religions.

In India, people of different religions-including Muslims, Christians, Parsis, and Jews- generally adopted the Guardians and Wards Act of 1890. On the other hand, Hindu citizens, Jains, Sikhs, or Buddhists can decide to adopt a child through the Hindu Adoption and Maintenance Act of 1956, where adoption has been made more inclusive and flexible by modernizing the procedure.

According to Hindu law, adopted children are considered as legitimate as natural children since the feeling is that the family, including both spiritual and material prosperity, needs a son. Nonetheless, the societal balance has shifted into equality for both genders, making this possible by permitting male and female members if only they are of legal age and sound mentality to adopt. Specific rules, laws, and procedures regarding adoption are defined under The Hindu Adoption and Maintenance Act of 1956.

The Hindu Adoption and Maintenance Act, 1956 was enacted after the attainment of Indian Independence to codify and update Hindu Law by making many provisions discrimination-proof in nature. It has some preliminary principles of equality and social justice within it, as most of its provisions have removed discrimination, especially on grounds of gender. The Act talks about the right to adopt and the right to waive, the impact of adoption on the parties involved, and the rights of gender bias.

Any adult Hindu male who is of sound mind can adopt with the consent of his wife in the case he is married. A female adult Hindu who is of sound mind can adopt a child if: she is unmarried, divorced, or widowed, is suffering from certain disabilities, or has become a Hindu otherwise than through a conversion ceremony; she has renounced the world; or a court has declared her to be of unsound mind.

Only the father, mother, or guardian can release his or her parental rights. The right of the father over the child can be released only by the father if the mother also assents to it unless she has renounced her status as a Hindu, given up her life, or become so mentally unsound. The mother is entitled to alienate her parental rights towards the child when her husband has died or become completely extinct, he has renounced the Hindu religion or has been declared incapable by an authority competent within the court of law.

All rights and obligations of the child so adopted vest in the adoptive parent. When a Hindu male adopts a child, his wife who is alive at the time of adoption is to be considered as the adopting mother and, if he has more than one wife, the wife with whom he was living at the time of adoption would be considered his adopting mother.

Even in the case of an adoption order, for instance, gender-based disparities come into operation. It is well brought out by the law which does not allow a married woman to adopt her child unless she has obtained her husband's consent, or unless her husband is dead, a spendthrift, or declared headlong to have renounced life. Malti Roy Choudhury v Sudhindranath Majumdar is an illustrative case in this regard. The appellant, Malti, was adopted by her mother, Tripti, who died but was rejected by the court.

Now, it's a matter that the law has to address and let both men and women have equal rights in the process of adoption. It cannot be justified as it gives the right to veto his wife's desire to be a mother.

Although the Hindu Adoption and Maintenance Act, 1956 was replaced by the Guardians and Wards Act, 1890, as the sole statute governing adoption in India, this was a non-religiously specific legislation. This law applies to all minors in the country but mainly focuses on Muslims, Christians, Parsis, and Jews. Their laws do not support complete adoption but rather guardianship. The legislation states any minor is defined as someone under 18 years old and, therefore, considered under the guardianship of the court or another designated entity.

In Islamic law, adoption comes with restrictions, while the position of guardian or ward is more common than that of a parent. The regulation follows specific rules that focus on the integrity of the family lineage. While in Islam, the thing itself may not be outlawed, claiming an adopted child as one's own and, therefore, as a biological one is not allowed. Hence, the name the adopted child carries is their natural family surname and does not need to be changed to coincide with the adopted family's. In Muslim law, Muslims have to make provisions in preference for members of their kin before taking a stranger as a guardian thus risking breaking the child's connections with its family, cultural, and religious heritage.

Similarly, Christian and Parsi laws do not have the concept of adoption. However, it is possible to adopt a child from an orphanage permitted by the court under the Guardians and Wards Act. Because the Christians do not have any specific laws regarding adoption, they have to get permission from the court under the Guardians and Wards Act of 1890. According to the National Commission on Women, there is a requirement for one type of integrated adoption law, and all the major laws regarding guardians and wards are in this Act.

This legal status of fostering children is not defined in India, and rather, those who are not recognized by customary or statutory adoption by the courts, but there is no specific legislation specifically provided under the act for the adoption of Christians in India. Contrary to this, children can be adopted through Section 41 of the Juvenile Justice (Care and Protection of Children) Act 2006, along with the Guidelines and Rules issued by various State Governments.

The Hindu Adoptions and Maintenance Act, 1956, recognizes adoption and has strengthened the rights of women in this regard. In case the Uniform Civil Code is enacted, then all the women, irrespective of their religion, would be entitled to adopt. This would strengthen the position of women in every stratum of society.

To avoid disputes people should be given a choice to be exempt from being categorized by religion. The need is for more legislation of basic human rights rather than religious personal laws. If the central government doesn't want to continue, it's time the individual states, as Goa did, took the lead. A secular India needs a uniform civil code.

Inter-country adoption: It is the same as intra-country adoption, but it involves the transfer of legal rights and duties of parents or other guardians of a child to new parents or guardians from birth parents or other guardians. Lakshmi Kant Pandey's case is a landmark in the area of inter-country adoption. The landmark was, in 1982, when lawyer Lakshmi filed a complaint with the social organizations and volunteer groups who were involved in the adoption of children from India abroad, pointing to unethical practices and even trafficking. The Supreme Court of India established some details of norms for the adoption of children by foreigners comprising both legal requirements and international standards.

The Supreme Court of India has further clarified that each such application by a foreigner, a non-resident Indian, or a permanent resident of India to adopt a child shall be accompanied by a social or child welfare agency, recognized or licensed by the Government or a Department of the Foreign Ministry in the country from which the applicant comes. The foreign agency also shall get cleared from CARA, the Ministry of Social Justice & Empowerment, Government of India.

FOSTER CARE-

Foster care is the placement of a child in a different family from his own to provide temporary care, which is sanctioned and monitored by the Committee. A foster family is a family the District Child Protection Unit selects to care for children in foster care, under section 44 of the Act. Group foster care is a family-based environment that offers individualized attention and a sense of community and self-identity for children needing care.

The core values of foster care state that a family environment is basic to child development and growth. Decisions regarding choices, conduct, and practices should be made case-specific, leading to what's required and appropriate for ensuring the safety and security of the child. In the process, the child should prepare and be informed, and their views should be considered. Brothers and sisters, especially twins, should be kept together in a family or a suitable facility, and there should be flexibility in the maximum number that can live in one family or facility, for such reasons.

The CWC can place a child in a family or group foster care after multiple considerations, which may include the child's level of trauma, drug addiction history, disability, social conduct, particular care requirements, the presence of a terminal illness, the requirement of removal of a child from an institution, the availability of proper facilities, the wishes and consent of the child, the possibility of implementing the option, and the suitability of the option.

Inclusion in foster care is the children between 0-6 years who are declared legally available for adoption as well as those declared legally available for adoption. But after the declaration to be legally available for adoption, if the child is not adopted then the CWC may consider them for foster care on special circumstances; similarly, children aged between 6-8 years who are declared available for adoption but not adopted two years after the declaration made by the CWC.

If a child with special needs declared legally available for adoption is not adopted within one year from the declaration date, he or she must be placed with a family or in group foster care subject to the support of his or her Home Study Report for family or group care and provided that facilities exist in the group setting.

Those transferred from institutions into group foster care are the 6-18 years age group who have been in child care institutions and have not been declared legally available, children whose parents are terminally ill and have requested the Committee or the District Child Protection Unit to care for their child, and the children identified by the District Child Protection Unit.

Some of the rights that a child in foster care has include protection of their best interests, information about their biological family, and government schemes and programs aimed at their development.

CONCLUSION

Adoption is a noble act that gives smiles to orphaned or abandoned children, which marks the gentle face of human life. It treats the child as if the child were his biological child and lavishes him with love and care. Adopting children satisfies the heart of parents to have children, and laughter and plays reverberate behind their house walls. However, there are amendments, too, that could also enhance the legislation related to adoption.

REFERENCES-

1. Lento Baliashvili, ‘Adoption and Foster Care’, (2023)

https://www.researchgate.net/publication/372166923_Adoption_and_Foster_Care, accessed 14th October, 2024

2. Fostercare,(2016),https://cara.wcd.gov.in/pdf/foster%20care%202016.pdf accessed 14th October, 2024

3. Almas Shaikh, ‘Legal Framework Governing Adoption Laws in India’, (2015)

https://www.lawctopus.com/academike/legal-framework-governing-adoption-laws-india/ accessed 14th October 2024

4. Aishwarya Surana, ‘Foster care in India alternative family-based care’, (2018)

https://www.legalserviceindia.com/legal/article-192-foster-care-in-india-an-alternative-family-based-care.html accessed 14th October 2024