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The inheritance of loss

Adoption in India is regulated by personal law, preventing many from finding a home, writes Preeti Singh.

india Updated: Aug 05, 2010 23:54 IST
Preeti Singh

Remember Amar Akbar Anthony? Three tragically-separated brothers grow up following different faiths after being taken in by kindly souls who bring them up as their own. Nearly a quarter-century later, its idealism seems grossly out of place as current adoption laws in India continue to give more credence to religious beliefs over the secular right of every child to grow up in a loving home.

Only Hindus were allowed to legally adopt till a decade ago, under the Hindu Adoptions and Maintenance Act, 1956. Even now, if non-Hindus wish to adopt from within the gene pool, they can't. Till 2000, non-Hindus could only become guardians of a child under the Guardian and Wards Act (Gawa), 1890, which also applies to all foreigners wishing to adopt an Indian child. The lesser-known Juvenile Justice Act of 2000 (JJA) plugged a vital gap by allowing anyone to legally adopt any number of abandoned or destitute children, but still not from within the family.

Under Gawa, the adoptive parents are only guardians and the child has no automatic legal rights, unlike Hindu adoptees who are treated on a par with 'biological' siblings. Also, the guardian-ward relationship ceases to exist once the child turns 18, and any inheritance claims must be explicitly willed. Passports and visas are difficult to obtain since they carry no provision for a guardian's name; family insurance covers are tricky to negotiate and school admissions become tougher than they already are.

Continuing opposition from various religious communities — who view any proposed changes in the current laws as a Trojan trick to ease in the Uniform Civil Code — often forces prospective parents to sneak around under the radar. Pushing many adoptions underground, this has also opened the floodgates for predators looking to make a quick buck, spawning transnational adoption rackets.

The logic of demand and supply creates its own opportunities and pitfalls but, despite this, feels Bharati Dasgupta, managing trustee of the Pune-based Catalysts for Social Change, "even though we have a good system of checks and balances, the biggest problem today is the lack of imaginative interpretation of existing laws like the JJA, which prevents the State from reaching out to those that are already in its care."

The proposed Personal Laws (Amendment) Bill, 2010 seeks to correct a long-standing anomaly, by finally allowing married women to adopt, give up a child for adoption, and become guardians (albeit with consent from their husbands). For now, a woman can adopt only if she is single, divorced or widowed. But any legislation is bound to fall short unless there's a level playing field for all — potential parents and children alike.

The equal measure of desperation and hope that mark every parent-in-waiting's quest for a child, as well as the psychological impact of rejection and abandonment on children, make adoption a highly emotive issue. Heart-rending stories of babies dumped in trash-cans, abandoned at hospitals or sold for paltry sums of money vie with tales of the decrepit conditions in our State-run homes, even

as there are couples desperately seeking that one child to complete the family portrait. Why can't the twain meet?

Says Vinita Bhargava, author of the pioneering book, Adoption in India (and an adoptive mom herself), "The lack of a special, uniform law, coupled with corruption at several levels, political appointments of non-experts in regulatory bodies and the paucity of both funds and sensitivity have ensured that our approach to adoption is far from being child-centric." Previous attempts to introduce a common law have only raised religious red-flags but then as long as a law does not challenge a faith's core beliefs, why shouldn't the State's edicts apply to all?

Parents may get to choose which boxes they tick when seeking to adopt, but the child has little choice in deciding his/her future. By taking a long, hard look at our laws and ensuring that a child's welfare precedes all else, it's time to give these invisible children at least a fighting chance.