Foster hits faster lane

A rise in adoption figures in recent times indicates that more and more people are beginning to accept the practice. In fact, the trend has gained much impetus in Maharashtra, considering the fact that several voluntary adoption agencies have been set up all across the state. However, Seemaa Kamdar finds that certain legal handicaps make both adoption and foster care a bit difficult

‘Mummy, when are we taking bhai home?’ asks a child of five, jumping up and down excitedly. Her mother smiles indulgently and, with one eye on her infant son nestling in her arms, beams, “soon.” This scene is not taking place in a maternity home but in the adoption cell of Vatsalaya Trust, an NGO at Kanjur Marg. The couple is here to adopt a son, after they adopted a girl from the same place over four years ago.

Adoption in India is hot and happening. Agencies swear that the figures have swelled over the past few years, thanks to greater acceptance of the practice and positive press coverage. Even as a rise in the number of adoptions is being registered and waiting periods at adoption cells increase, stories of single adoptive parents are also being heard.

Maharashtra, in particular, has been proactive with regards to adoptions. It is the only state with four voluntary adoption agencies (VCA) — other states have only one — to coordinate efforts with NGOs as and when required. The state has about 55 adoption agencies, including 14 in Mumbai alone.

The Bombay High Court’s ruling last Monday on foster care, a term used for the period the child stays with his prospective parents before the legal formalities are completed, gave an impetus to this ‘family’ cause. Till now, adoptive couples living outside the court’s jurisdiction could not take a child under foster care to their homes. For instance, a couple living in Delhi could take a child from Mumbai with them only after the adoption process was legally complete. In case they want to live with the child before the process was completed, they had to settle down in the city till the child was legally theirs.

Though the HC ruling will impact only a few couples — most agencies say they deal largely with local couples — experts say the ruling will foster greater bonding between prospective parents and the child before the formal handover of the child, and for the agencies, a better understanding of whether the couple and the child suit each other.

“It enables both, the agency and the parents, to confirm that the adoption will work,” says a social worker. Just in case there are any regrets, the agency can always withhold adoption. Foster care has always been understood to facilitate this intelligence, but the geographical limits set for the purpose was considered to be a constraint for parents living outside the court’s jurisdiction.

On the flip side, the order entails some additional pains for the adoption agencies. “This means stretching our resources to keep an eye on the child,” says the trustee of an adoption agency. “It’s an encouraging development for adoption as a whole, but this will add to our burden. We work on shoe-string budgets,” says the administrator of another organisation.

Adoption agencies are usually attached to NGOs, and entitled to receive grants from the government. Some of them, located in remote areas, get money under the Union Women and Child Development Ministry’s Shishu Graha scheme, to encourage in-country adoption. Agencies, though, complain of delays in disbursement. “The money usually doesn’t come on time,” says the administrator. Over the years, the law has been firmed up to refine the adoption process. The apex court order is the latest in this regard. However, what stands out sorely in an otherwise fault-free legal framework is the absence of a uniform adoption law. As with the uniform civil code, consensus has eluded this much-solicited legislation as well.

So, Hindus, Jains, Sikhs and Buddhists are governed by the Hindu Adoption and Maintenance Act, 1956, which permits adoption of a child of up to 15 years of age while other minorities like Christians, Parsis and Muslims adhere to the Guardians and Wards Act (GWA), 1890, which permits adoption of a child till he turns 18. While the Hindu Act is more or less fine (see box), the other Act is not.

The biggest complaint as far as the law goes is the ban on adopting a child of the same sex. “If a couple has a girl, they cannot adopt a girl again,” says advocate Rakesh Kapoor. “And that is a lacuna that needs to be addressed.” The condition was put in place to prevent discrimination against the girl child even during adoption, but agencies talk of the predicament of couples who are often keen to adopt a girl despite having a girl of their own.

GWA does not bestow automatic inheritance on the child, who remains a ward. The adoptive parents are governed first and foremost by their personal law and can deprive the adopted child of right to their property.

A legal handicap is the absence of any provision to take back a child in the rare event he is ill-treated by his adoptive parents. “Adoption is irrevocable,” points out Ashwini Thatte, senior project coordinator, Vatsalaya Trust. In one case, the child was taken back with the intervention of the Child Welfare Committee - formed by the state government — after counseling failed to make the parents behave.

Not all neglected or abandoned children, though, even have access to getting adopted. Unlike the West, there is little awareness here of foster care — the concept of nurturing a child without any claims on him till he is claimed back by his parent or guardian. It is distinct from foster care, which is for a short period, till adoption renders the child to the parents. Children who are not medically fit to be placed for adoption or children whose parents are not capable of fending for them are candidates for foster care.

However, there is no separate law on the subject. The Juvenile Justice Act deals with the issue, permitting foster care for a child by an individual or an institution. “The development of a foster care programme could help find homes for neglected and delinquent children who land up in depressing government homes,” says Sunil Arora, coordinator of the Bal Asha adoption cell. “They are older, and because of legal issues, can’t be placed for adoption,” he says.

Thatte recounts the experience of trying to find a home for a six-year-old whose mother was mentally challenged. “We moved heaven and earth but found nobody to care for her,’’ she recalls. Finding a foster home is indeed tough. That’s why the centre pitches in with grants to meet the nutritional and medical needs of the child. “Foster families are paid for such children, who can also be placed for adoption in case the parents abandon them,” says Savita Nagpurkar, Project Officer, Indian Association for Promotion of Adoption.

A child under foster care gets no privileges that an adopted child does. “In guardianship, the child doesn’t get rights but can be willed some assets. A child under foster care can make no claims whatsoever on the foster family’s assets,” adds Thatte.