INTRODUCTION
Illegal adoption refers to the fraudulent labelling of a child as abandoned, surrendered, or abused as well as the unlawful adoption of children from orphanages for human trafficking. In India, both married and unmarried individuals, including Non-Resident Indians (NRIs) and foreigners are allowed to adopt a child per the legal procedures established by law. The adoption of surrendered children is primarily governed by the Juvenile Justice Act 2015,[1] which aims to uphold constitutional principles such as the Right to Life with dignity under Article 21[2], the Right to Family, and the promotion of Social Inclusion. However, the current laws have proven ineffective in fully preventing illegal adoptions. Globally, “an estimated 8 million children live in orphanages and similar institutions, yet 80% of them are not actual orphans. Research indicates that young adults raised in such institutions are more likely to be coerced into prostitution, have mental health issues, and commit suicide, and institutionalisation of very young children has a similar impact on early brain development to severe malnutrition or maternal drug use during pregnancy.”[3]
Orphanages are not only inadequate in providing a safe and nurturing environment for children but also serve as easy places for human traffickers to adopt children successfully to escape any legal consequences. Furthermore, Social media platforms have become a medium for the open circulation of posts that advertise children in need of adoption –an act that violates adoption laws. The Juvenile Justice Act 2015, a secular law governing child adoption, operates alongside the Guardians and Wards Act 1890[4] and the Hindu Adoption and Maintenance Act of 1956[5]. Section 74[6] of the Juvenile Justice Act prohibits the disclosure of a child’s identity, as publicising such details increases the risk of trafficking. Additionally, under section 41[7] of the same act, it is a punishable offense to give or receive an orphaned, abandoned, or surrendered child for adoption without following the prescribed legal procedures and the punishment for which includes imprisonment for up to three years, a fine of one lakh rupees, or both.
SOCIO-LEGAL REASONS THAT FACILITATE ILLEGAL ADOPTION IN INDIA
- Lack of Strict Punishment and Vigilance by Authorities: Under Section 56(5) of the Juvenile Justice (Care and Protection of Children) Act, 2015[8], the punishment for sending a child broad without a valid court order or neglecting parental care, resulting in physical or mental harm, is merely three years of imprisonment and/or a fine of 1lakh rupees. This penalty is disproportionately low for such a serious crime, allowing offenders to escape with minimal consequences. The law lacks a strong deterrent effect, failing to highlight the grave violation of children’s human rights. On a national level, the urgency to protect orphaned children is often overlooked, despite their increasing numbers due to migration, war, poverty, and other socio-economic factors.
- Absence of Adoption Laws for certain Religions: Adoption, like marriage and inheritance, falls under personal laws. Currently, Religions like Islam, Christianity, Judaism, and Zoroastrianism lack adoption provisions, as many of their Personal laws do not recognize the concept of Adoption[9]. Instead, individuals from these communities can only become guardians under the Guardians and Wards Act of 1890. In the landmark case of Shabnam Hashmi v. Union of India[10], the SC ruled that the Juvenile Justice Act upholds the statutory Right to Adopt, promoting the objectives of the Uniform Civil Code. However, the absence of clear adoption laws for all religions creates a legal vacuum, increasing the risk of discrimination and exploitation of adopted children.
- Societal Prejudice and Discrimination: Several societal factors limit the availability of children for adoption in India. “Due to deep-rooted patriarchal norms, the adoption of girls remains less common. Additionally, caste biases, gender discrimination, lack of awareness, and complex legal processes leave many children vulnerable to prostitution, forced begging, and human trafficking. Children with disabilities or special needs, who require greater care and financial support, are often the last choice for prospective adoptive parents. These restrictive societal perceptions deprive orphaned children of the love, security, and opportunities they desperately need.”[11]
- Procedural Delays and Long Waiting Periods: The Adoption process in India is lengthy and bureaucratic. “Adopting a child from domestic foster care takes approximately 6 months to 2 years while adoption inter-country may take 24 to 36 months.”[12] “The current waiting period for a healthy child aged two years is 3-4 years”[13]. While these stringent procedures aim to ensure safe and suitable placements, they leave many children in limbo while prospective parents face financial burdens and prolonged uncertainty.
- Indian Adoption Laws v. USA, UK, and Canada: Adoption in India is regulated by a central authority, the Central Adoption Resource Authority (CARA). In contrast, the USA and Canada follow provincial adoption systems, while in the UK process is managed by adoption agencies. India’s main challenge lies in ensuring uniformity within its diverse communities, a complexity that countries like the USA do not face due to their relatively homogeneous populations. Addressing these challenges is crucial to making adoption more accessible and efficient in India.
THE WAY FORWARD
The Bharatiya Nyaya Sanhita, 2023[14] provides a comprehensive legal framework for human trafficking under Section 143[15], imposing strict penalties for child trafficking. This includes coercing parents into giving up their children, exploiting them for labour and begging, bypassing legal adoption procedures, and engaging in black-market practices. While the law acknowledges these issues, a transparent enforcement mechanism is crucial to ensuring the safety of orphaned children. The following measures can help strengthen protections:
- Integrating Orphanages with Old Age Homes: Housing orphaned children alongside elderly individuals can create a mutually supportive environment. This setup addresses loneliness among senior citizens while providing children with emotional support and guidance. Additionally, having guardians within the orphanage can help prevent abuse and ensure a safer environment for children.
- Effective Implementation of Post-Adoption Services: While the law mandates follow-ups for two years after adoption, enforcement remains a challenge. Adoption agencies should be held legally accountable for ensuring thorough post-adoption monitoring to safeguard the child’s well-being.
- Nationwide Public Awareness Campaigns: Raising awareness at a national level is essential to mobilize public action against child trafficking. Educating people about legal loopholes and the consequences of illegal adoption can encourage stronger advocacy and better policy implementation.
- Adopting Best Practices from Foreign Jurisdictions: India can improve adoption policies by learning from international models. Implementing a Uniform Civil Code, as recently introduced in Uttarakhand, can promote uniformity and accessibility. Streamlining adoption procedures, as seen in the UK, can reduce bureaucratic delays and curb corruption. Additionally, introducing open adoption, a practice in the USA and Canada, can help children maintain connections with their birth families. Lastly, leveraging technology to match children with prospective adoptive parents can expedite the process and ensure efficient resource allocation.
- Issues addressed by the Indian Judiciary: “As of February 2025, the Supreme Court has issued significant directives to enhance the adoption framework in India. In July 2024, the Court addressed the lack of Specialized Adoption Agencies (SAAs) in numerous districts, mandating all states and union territories to establish functional SAAs”[16]. The mandate aimed at streamlining the adoption process and ensuring that children have access to proper adoption services.
CONCLUSION
Children represent one of the most vulnerable sections of society and require special care to grow into responsible citizens. The Constitution of India, under Articles 23 and 24[17], prohibits human trafficking and child labour in hazardous environments. However, child-centric laws must also address the concerns of prospective parents to encourage ethical adoption. Lengthy and complex legal procedures often fail both children and parents. Additionally, human trafficking, as recognized under the Bharatiya Nyaya Sanhita 2023[18], is an organized crime driven by financial incentives, benefiting criminals, corrupt officials, and businesses while exploiting the public. To combat this, systemic reforms are necessary, corruption must be tackled, and public participation must be encouraged to bring about meaningful change.
Author(s) Name: Devyani Verma (Bharati Vidyapeeth, New Law College, Pune)
References:
[1] Juvenile Justice (Care and Protection Act) 2015
[2] Constitution of India 1950, art 21
[3] Emma Batha, ‘Factbox: Most children in orphanages are not orphans’ Reuters (14 November 2018) <https://www.reuters.com/article/world/factbox-most-children-in-orphanages-are-not-orphans-idUSKCN1NJ0AG/> accessed 25 January 2025
[4] Guardians and Wards Act 1890
[5] Hindu Adoption and Maintenance Act 1956
[6] Juvenile Justice (Care and Protection) Act 2015, s 74
[7] Juvenile Justice (Care and Protection) Act 2015, s 41
[8] Juvenile Justice (Care and Protection) Act 2015, s 56(5)
[9] Niraj Meena, ‘Adoption Laws in India: Challenging Existing law’ (Manupatra, 2016) <https://docs.manupatra.in/newsline/articles/Upload/E8EFE493-114B-4E5B-A014-682EB1729301.pdf.> accessed 25 January 2025
[10] Ms Shabnam Hashmi v Union of India & Ors. AIR [2014] SC 1281
[11] Murali Krishnan, ‘Why is it so difficult to adopt a child in India?’ (DW, 21 October 2022) <https://www.dw.com/en/why-is-it-so-difficult-to-adopt-a-child-in-india/a-63520320> accessed 15 January 2025
[12] Adv. Vishek Vats, ‘Child adoption process in India’ (Rest The Case, 11 January 2023) <https://restthecase.com/knowledge-bank/child-adoption-process-in-india> accessed 15 January 2025
[13] ‘Lakhs of children waiting to be adopted but it takes 3-4 years to adopt single child in India: SC’ The Times of India (26 August 2022) <https://timesofindia.indiatimes.com/india/lakhs-of-children-waiting-to-be-adopted-but-it-takes-3-4-years-to-adopt-single-child-in-india-sc/articleshow/93803987.cms> accessed 15 January 2025
[14] Bhartiya Nyaya Sanhita 2023
[15] Bhartiya Nyaya Sanhita 2023, s 143
[16] ‘Supreme Court flays States for not setting up adopting agencies’ The Hindu (09 July 2024) <https://www.thehindu.com/news/national/sc-initiates-coercive-steps-against-29-states-union-territories-for-not-setting-up-functional-saas-in-all-districts/article68385782.ece> accessed 15 January 2025
[17] Constitution of India 1950, arts 23-24
[18] Bharatiya Nyaya Sanhita 2023
