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ADOPTION: NATURE, LAW OF ADOPTION AND INTER COUNTRY ADOPTION, CONDITIONS AND EFFECT

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This article is written by Hitaishi Jaiswal of 3rd Semester of National University of Study and Research in Law (NUSRL) Ranchi

Abstract

This article provides an overview of the concept of adoption, including its history, types, benefits, challenges, and laws. The paper highlights the importance of adoption in providing children with a secure and nurturing home environment, access to genetic and health information, and the opportunity to expand one’s family. The paper also acknowledges the challenges associated with adoption, including emotional and financial burdens, the possibility of disrupted adoptions, and navigating the legal and social dimensions of adoption. The paper concludes with recommendations for continued research on the psychological, social, and economic effects of adoption, the development of policies and regulations to ensure the safety and well-being of children who are adopted, and collaboration between countries to promote ethical and transparent inter-country adoption practices.

Keywords: Adoption, History of adoption, Types of adoption, Benefits of adoption, Challenges of adoption, Laws of adoption, Domestic adoption, International adoption, Open adoption, Closed adoption, Inter-country adoption, Political issues surrounding inter-country adoption, Post-placement study requirements, Psychological effects of adoption

Introduction

The concept of adoption is intricate and diverse, and it has been influenced by various cultural, social, and legal elements over the course of history.[1] Adoption refers to the comprehensive social, emotional, and legal procedure through which children, who are not being raised by their biological parents, establish enduring and complete legal membership within an alternative family unit, while simultaneously preserving their genetic and psychological ties to their birth family. The concept of adoption encompasses various dimensions and impacts individuals in diverse manners, contingent upon their respective roles and perspectives. Various roles and perspectives encompass individuals such as an adoption social worker, an adoption therapist, an adoption program administrator, an adoption attorney or court employee, an educator, a physician specializing in adoption, a researcher in the field of adoption, and a media professional.[2] Intercountry adoption is a multifaceted procedure that can yield gratifying outcomes, yet it is characterized by intricacies due to its adherence to both U.S. Federal and State laws, in addition to the laws governing the respective country involved.[3]

History of Adoption

The origins of adoption can be traced back to ancient Rome, where it was common for families with multiple sons to engage in a practice known as “adoption,” whereby their sons were formally transferred to other noble families in order to establish a desirable familial bond. The history of adoption in the United States can be categorized into two distinct periods, which are demarcated by the enactment of the Adoption of Children Act in 1851 by the state of Massachusetts.[4][5] Prior to the mid-nineteenth century, the practice of genuine adoption was frequently conducted covertly, with a deliberate effort to avoid involving the judicial system. During that period, adoption was accompanied by prevalent stigmas, leading individuals to exhibit hesitancy in welcoming children from diverse ethnic backgrounds and varying financial circumstances into their households. Consequently, it was prevalent for individuals to adopt children primarily from their extended family members. In the year 1891, the state of Michigan implemented a pioneering policy that mandated judicial approval of the moral character and capacity to provide for the upbringing and education of a child for individuals seeking to become adoptive parents. Several additional states initiated the enactment of adoption-related laws. Subsequently, during the First White House Conference on the Care of Dependent Children in 1909, President Theodore Roosevelt advocated for a shift away from the utilization of child institutional care.[6] The adoption model originating in the United States eventually spread worldwide. The enactment of the initial formal adoption legislation in England and Wales occurred in 1926. The legislation in question was enacted by the Netherlands in the year 1956. In 1959, Sweden enacted legislation that granted adoptees full legal status as members of their adoptive families. The initial legislation in West Germany was implemented in the year 1977.[7]

Importance of Adoption

The process of adoption holds significant importance as it provides children who are in vulnerable circumstances with the opportunity to realize their full potential within a secure, affectionate, and enduring household.[8] Here are some reasons why adoption is important:

  1. Adoption offers children a secure and nurturing domestic setting, characterized by stability, affection, and positive influences. Adopted children are embraced with love and integrated into a family unit, akin to any other familial structure.[9]
  2. The act of adoption possesses the capacity to significantly influence the trajectory of children’s lives for the entirety of their existence. The significance of adoption for children lies in the potential it offers for them to lead lives aligned with the aspirations of their biological parents.[10]
  3. The availability of genetic and health information holds significant importance in relation to overall well-being. Uncertainty regarding health history is a common concern among adoptive parents and birth parents alike; however, adoption serves as a valuable avenue for obtaining the desired answers.
  4. Adoption presents a valuable opportunity for expanding one’s family unit. This phenomenon enables individuals to broaden the scope of their familial relationships, fostering inclusivity. Additionally, it presents a unique avenue for individuals who may have otherwise faced barriers to parenthood to fulfill their desire to become parents.
  5. The adoptee experiences various positive effects as a result of adoption, including the provision of a stable domestic setting, improved mental and behavioral well-being, and achievements in personal and educational pursuits.

The Nature of Adoption

The concept of adoption has been influenced by a variety of cultural, social, and legal factors over the course of history.

The process of adoption is subject to the influence of various cultural factors, including but not limited to religion, family values, and societal norms. In certain cultural contexts, adoption may not be universally embraced, whereas in alternative cultural settings, it is regarded as a commendable endeavor.[11]

Social factors, including but not limited to poverty, armed conflict, and natural calamities, can exert an influence on the rates of adoption. In certain circumstances, children may become orphaned or abandoned as a result of these factors, thereby resulting in a rise in the occurrence of adoption.

Adoption is influenced by various legal factors, including the laws and regulations pertaining to the process. The regulations pertaining to adoption exhibit considerable variation across different countries and states, encompassing a range of stipulations that govern the eligibility criteria for prospective adoptive parents, the legal entitlements of birth parents, and the procedural aspects of the adoption process.

Types of Adoption

There are various types of adoption, one of which is domestic adoption. This term pertains to the process of adopting a child within the adoptive parents’ country of residence.

International adoption, also referred to as inter-country adoption, pertains to the process of legally adopting a child from a foreign country.

Open adoption refers to a form of adoption wherein the adoptive parents and birth parents maintain continuous contact and engage in ongoing communication.

Closed adoption refers to a form of adoption wherein the adoptive parents and birth parents do not engage in any form of contact or communication subsequent to the finalization of the adoption process.

Benefits and Challenges of Adoption

The advantages of adoption encompass the provision of a stable and nurturing home environment for children, which significantly influences their overall development and well-being. Additionally, adoption offers access to crucial genetic and health information, as well as the opportunity to expand one’s family. Moreover, adoption has been shown to have positive effects on the individual being adopted. However, it is important to acknowledge that adoption also presents certain challenges.

The challenges associated with adoption encompass various aspects, including emotional and financial burdens inherent in the adoption process, the possibility of disrupted adoptions, and the difficulties involved in navigating the legal and social dimensions of adoption.

Laws of Adoption

The regulations pertaining to international adoptions differ across nations in terms of their level of receptiveness. Certain nations have implemented regulations and protocols pertaining to intercountry adoptions, whereas other nations explicitly prohibit such practices. The adoption policies implemented by different countries exhibit significant variations. Countries utilize various factors to assess the eligibility of prospective adoptive parents, including but not limited to the age of the individuals, their financial standing, educational attainment, marital status, past experiences, the presence of dependent children within the household, sexual orientation, body weight, psychological well-being, and ancestral background. These criteria aid in the determination of which individuals are suitable to adopt children from a particular country.[12] Intercountry adoptions are subject to regulation by three distinct legal frameworks: U.S. federal law, the legislation of the adoptee’s country of origin, and the laws of the adoptive parent’s U.S. state of domicile.[13]

Legal Requirements for adoption

The legal prerequisites for adoption exhibit variability across different countries and states. In the context of the United States, it is a requirement for prospective adoptive parents to meet certain criteria, such as attaining a minimum age of 25 years and possessing U.S. citizenship. In order to qualify as adoptive parents, it is necessary for individuals to possess a household income that is equivalent to or surpasses 125% of the federal poverty level. Additional legal prerequisites for adoption may encompass factors such as an individual’s age, marital status, financial solvency, and state of health.

Rights and responsibilities of adoptive parents and adopted children

Adoptive parents possess equivalent rights and responsibilities to those of biological parents. The individuals in question bear the responsibility of ensuring the fulfillment of the child’s fundamental necessities, including sustenance, housing, and healthcare. Furthermore, parents possess the entitlement to exercise authority in matters pertaining to the child’s upbringing, education, and medical welfare.

It is imperative that adopted children are afforded the opportunity to access information regarding their birth parents and their medical background, to the extent that it is feasible. Furthermore, individuals possess the entitlement to be treated with affection and regard, as well as to have their fundamental necessities fulfilled.

Inter-country Adoption

Inter-country adoption, commonly referred to as international adoption, is a legal procedure through which an individual or a couple assumes the role of the legal and permanent parent(s) of a child from a foreign nation.[14]

Indian Laws governing inter-country adoption

The regulations outlined by the Central Adoption Resource Authority (CARA) under the Juvenile Act govern all inter-country adoption processes in India.[15] India currently lacks specific legislation addressing inter-country adoption.[16] Foreign individuals are permitted to engage in the process of adopting children from India, albeit subject to the requirement of securing sponsorship from a child welfare agency or a social organization.[17] According to Indian legislation, the adoption of Indian children by foreign nationals is not legally permissible within the jurisdiction of India. In contrast, India bestows guardianship, which entails custody, thereby permitting the prospective adoptive parents to transport the child to their country of residence.[18] According to Article 21 of the Convention on the Rights of the Child (CRC), adoptive parents are obligated to ensure that the adopted child is afforded an equivalent level of standards and rights as a child who is native to the adopting parents’ country.[19]

The challenges associated with inter-country adoption in India encompass the intricate navigation of legal and social dimensions across diverse nations, linguistic obstacles, disparities in cultural norms, and the inherent possibility of adoption disruptions.

Challenges and benefits of inter-country adoption

Benefits of inter-country adoption include providing children with a stable and loving home environment, shaping their entire lives, providing access to genetic and health information, providing an opportunity to grow a family, and having positive impacts on the adoptee.

Challenges of inter-country adoption include navigating the legal and social aspects of adoption in different countries, language barriers, cultural differences, and the potential for disrupted adoptions

Political issues surrounding inter-country adoption:

Inter-country adoption has been the subject of political controversy in recent years. Some countries have banned inter-country adoption due to concerns about child trafficking and exploitation. Other countries have implemented stricter regulations and requirements for inter-country adoption to ensure that children are placed in safe and loving homes. The U.S. Department of State works with foreign governments to ensure that inter-country adoptions are conducted in a safe and ethical manner.

Adoption Conditions

Factors that affect eligibility for adoption:

Eligibility for adoption is determined by an evaluation called a home study that verifies that the adoptive or foster parent is mentally sound, financially stable, healthy, and has no criminal record. Other factors that may affect eligibility for adoption include age, marital status, and the ability to provide a stable and loving home environment for the child.[20]

Home study requirements:

A home study is a process that assesses the prospective adoptive parents’ suitability to adopt a child. The home study process varies by state and country, but it typically includes interviews, background checks, and home visits. Home study requirements are designed to ensure that a potential adoptive or foster parent is mentally sound, financially stable, and able to provide a safe and loving home environment for the child.

Post-placement and post-adoption reporting requirements:

Post-placement and post-adoption reporting requirements vary by state and country. Some countries of origin have post-adoption reporting requirements, which may include providing updates on the child’s well-being and development.

Post-placement study requirements may include at least one home visit, the applicant’s current employment status, updated medical reports, changes in family composition, and any changes in types of children requested.

Adoption agencies may provide post-placement monitoring until the adoption is finalized, including home visits at 1 month, 3 months, and 6 months.[21]

Adoption Effect

Psychological effects of adoption on adoptive parents and adopted children

Adoptive parents may experience a range of emotions, including joy, fulfillment, and a sense of purpose. However, they may also face challenges such as feelings of inadequacy, guilt, or fear of rejection by the adopted child.[22]

Adopted children may experience a variety of psychological effects, depending on their age, circumstances, and the quality of their adoption experience. These effects can include feelings of loss, grief, identity issues, and attachment difficulties.

Adopted children may also experience a sense of belonging and love within their adoptive family, which can positively impact their psychological well-being.[23]

Social effects of adoption on families and communities

Adoption has social effects on families and communities. It can strengthen family bonds and create a sense of unity and belonging within the adoptive family.

Adoption can also have a positive impact on the community by promoting a culture of acceptance, diversity, and compassion.

Adoptive families may face challenges in navigating societal attitudes and stereotypes related to adoption, but they can also serve as advocates and role models for other families considering adoption.

Economic effects of adoption

Adoption can have economic implications for adoptive parents. The cost of adoption can vary depending on factors such as agency fees, legal expenses, and travel costs.

Adoptive parents may also incur ongoing expenses related to the child’s healthcare, education, and other needs.[24]

On the other hand, adoption can also have economic benefits. For example, some countries offer financial incentives or tax credits to adoptive parents.

Additionally, adoption can contribute to the economy by creating jobs in the adoption industry and supporting related services and businesses.

Conclusion

Adoption is a complex and multifaceted concept that has been shaped by cultural, social, and legal factors throughout history. Adoption provides children with a stable and loving home environment, shapes their entire lives, provides access to genetic and health information, provides an opportunity to grow a family, and has positive impacts on the adoptee. However, adoption also has challenges, including navigating the legal and social aspects of adoption in different countries, language barriers, cultural differences, and the potential for disrupted adoptions.

Future directions for adoption research and policy include:

References:

  1. V. Maurya, Adoption: Nature, Law of Adoption and Inter Country adoption, Adoption: Conditions and Effect, Legal Vidhiya, available at https://legalvidhiya.com/adoption-nature-law-of-adoption-and-inter-country-adoption-adoption-conditions-and-effect/, last seen on 12/08/2023.
  2. Introduction to Adoption, Child Welfare Information Gateway, available at https://www.childwelfare.gov/topics/adoption/intro/, last seen on 12/08/2023.
  3. Intercountry Adoption: What Do I Need to Know? (pdf), Child Welfare Information Gateway, available at: https://www.childwelfare.gov/pubPDFs/factsheets_families_intercountry.pdf, last seen on 12/08/2023.
  4. Brief History of Adoption in the United States, Adoption Network, available at https://adoptionnetwork.com/history-of-adoption/, last seen on 12/08/2023.
  5. What You Need to Know About the History of Adoption, American Adoptions, available at https://www.americanadoptions.com/adoption/history-of-adoption, last seen on 12/08/2023.
  6. What Is the History of Adoption? Adoption.org GLADNEY Center for Adoption, available at https://adoption.org/what-is-the-history-of-adoption, last seen on 12/08/2023.
  7. Adoption, Wikipedia, available at https://en.wikipedia.org/wiki/Adoption, last seen on 12/08/2023.
  8. The Importance of Adoption, Nugent Adoption, available at https://nugentadoption.org/the-importance-of-adoption/, last seen on 12/08/2023.
  9. Adoption Choices of Colorado, Adoption’s Positive Impacts on the Adoptee, Adoption Surrogacy Choices of Colorado, available at https://www.adoptionchoices.org/adoptions-positive-impacts/, last seen on 12/08/2023.
  10. Ashley Greeno, 5 Reasons Why Adoption Is So Important, Adoption.com, available at https://adoption.com/5-reasons-why-adoption-is-so-important/, last seen on 12/08/2023.
  11. Adoption Across Cultures (pdf), available at https://us.sagepub.com/sites/default/files/upm-assets/41957_book_item_41957.pdf, last seen on 12/08/2023.
  12. International Adoption, Wikipedia, available at https://en.wikipedia.org/wiki/International_adoption, last seen on 12/08/2023.
  13. Who Can Be Adopted, U.S. Department of State, available at https://travel.state.gov/content/travel/en/Intercountry-Adoption/Adoption-Process/before-you-adopt/who-can-be-adopted.html, last seen on 12/08/2023.
  14. Intercountry Adoption, U.S. Department of State, available at https://travel.state.gov/content/travel/en/Intercountry-Adoption.html, last seen on 12/08/2023.
  15. Inter-country adoption in India, Rest the Case, available at https://restthecase.com/knowledge-bank/inter-country-adoption-in-india, last seen on 12/08/2023.
  16. Inter country Adoption Procedure, Supreme Court Guidelines, Legal Services India, available at https://www.legalservicesindia.com/articles/adopt.htm, last seen on 12/08/2023.
  17. P. Bhattacharya, The Legal Framework of Inter-Country Adoption, iPleaders, available at https://blog.ipleaders.in/legal-framework-inter-country-adoption/, last seen on 12/08/2023.
  18. Inter-country adoption, Immigration.com, available at https://www.immigration.com/inter-country-adoption, last seen on 12/08/2023.
  19. S. Agarwal, Inter-country adoption: foreign nationals adopting from India, iPleaders, available at https://blog.ipleaders.in/inter-country-adoption-foreign-nationals-adopting-from-india/, last seen on 12/08/2023.
  20. Adoption Home Study Requirements by State, Adoption Network, available at https://adoptionnetwork.com/adoption-laws-by-state/homestudy-requirements/, last seen on 12/08/2023.
  21. Suitability and Home Study Information, U.S. Citizenship and Immigration Services, available at https://www.uscis.gov/adoption/suitability-and-home-study-information, last seen on 12/08/2023.
  22. Lifelong impact of Adoption, Child Welfare Information Gateway, available at https://www.childwelfare.gov/topics/adoption/adopt-people/impact/, last seen on 12/08/2023.
  23. Effects of Adoption on Child Development, Children’s Bureau, available at https://www.all4kids.org/news/blog/effects-of-adoption-on-child-development/, last seen on 12/08/2023
  24. The Hidden Impact of adoption, The Family Institute, available at https://www.family-institute.org/sites/default/files/pdfs/csi_drustrup_hidden_impact_of_adoption.pdf, last seen on 12/08/2023
  25. Harold D. Grotevant, Jen Dolan, And Kirby Deater-Deckard, The Future of Adoption: Concluding Thoughts about Research, Practice, and Policy, available at https://www.umass.edu/ruddchair/sites/default/files/rudd.final.pdf, last seen on 12/08/2023.
  26. Child Adoption: Trends and Policies, United Nations, available at https://www.un.org/en/development/desa/population/publications/pdf/policy/child-adoption.pdf, last seen on 12/08/2023

[1] V. Maurya, Adoption: Nature, Law of Adoption and Inter Country adoption, Adoption: Conditions and Effect, Legal Vidhiya, available at https://legalvidhiya.com/adoption-nature-law-of-adoption-and-inter-country-adoption-adoption-conditions-and-effect/, last seen on 12/08/2023.

[2] Introduction to Adoption, Child Welfare Information Gateway, available at https://www.childwelfare.gov/topics/adoption/intro/, last seen on 12/08/2023.

[3] Intercountry Adoption: What Do I Need to Know? (pdf), Child Welfare Information Gateway, available at: https://www.childwelfare.gov/pubPDFs/factsheets_families_intercountry.pdf, last seen on 12/08/2023.

[4] Brief History of Adoption in the United States, Adoption Network, available at https://adoptionnetwork.com/history-of-adoption/, last seen on 12/08/2023.

[5] What You Need to Know About the History of Adoption, American Adoptions, available at https://www.americanadoptions.com/adoption/history-of-adoption, last seen on 12/08/2023.

[6] What Is the History of Adoption? Adoption.org GLADNEY Center for Adoption, available at https://adoption.org/what-is-the-history-of-adoption, last seen on 12/08/2023.

[7] Adoption, Wikipedia, available at https://en.wikipedia.org/wiki/Adoption, last seen on 12/08/2023.

[8] The Importance of Adoption, Nugent Adoption, available at https://nugentadoption.org/the-importance-of-adoption/, last seen on 12/08/2023.

[9] Adoption Choices of Colorado, Adoption’s Positive Impacts on the Adoptee, Adoption Surrogacy Choices of Colorado, available at https://www.adoptionchoices.org/adoptions-positive-impacts/, last seen on 12/08/2023.

[10] Ashley Greeno, 5 Reasons Why Adoption Is So Important, Adoption.com, available at https://adoption.com/5-reasons-why-adoption-is-so-important/, last seen on 12/08/2023.

[11] Adoption Across Cultures (pdf), available at https://us.sagepub.com/sites/default/files/upm-assets/41957_book_item_41957.pdf, last seen on 12/08/2023.

[12] International Adoption, Wikipedia, available at https://en.wikipedia.org/wiki/International_adoption, last seen on 12/08/2023.

[13] Who Can Be Adopted, U.S. Department of State, available at https://travel.state.gov/content/travel/en/Intercountry-Adoption/Adoption-Process/before-you-adopt/who-can-be-adopted.html, last seen on 12/08/2023.

[14] Intercountry Adoption, U.S. Department of State, available at https://travel.state.gov/content/travel/en/Intercountry-Adoption.html, last seen on 12/08/2023.

[15] Inter-country adoption in India, Rest the Case, available at https://restthecase.com/knowledge-bank/inter-country-adoption-in-india, last seen on 12/08/2023.

[16] Inter country Adoption Procedure, Supreme Court Guidelines, Legal Services India, available at https://www.legalservicesindia.com/articles/adopt.htm, last seen on 12/08/2023.

[17] P. Bhattacharya, The Legal Framework of Inter-Country Adoption, iPleaders, available at https://blog.ipleaders.in/legal-framework-inter-country-adoption/, last seen on 12/08/2023.

[18] Inter-country adoption, Immigration.com, available at https://www.immigration.com/inter-country-adoption, last seen on 12/08/2023.

[19] S. Agarwal, Inter-country adoption: foreign nationals adopting from India, iPleaders, available at https://blog.ipleaders.in/inter-country-adoption-foreign-nationals-adopting-from-india/, last seen on 12/08/2023.

[20] Adoption Home Study Requirements by State, Adoption Network, available at https://adoptionnetwork.com/adoption-laws-by-state/homestudy-requirements/, last seen on 12/08/2023.

[21] Suitability and Home Study Information, U.S. Citizenship and Immigration Services, available at https://www.uscis.gov/adoption/suitability-and-home-study-information, last seen on 12/08/2023.

[22] Lifelong impact of Adoption, Child Welfare Information Gateway, available at https://www.childwelfare.gov/topics/adoption/adopt-people/impact/, last seen on 12/08/2023.

[23] Effects of Adoption on Child Development, Children’s Bureau, available at https://www.all4kids.org/news/blog/effects-of-adoption-on-child-development/, last seen on 12/08/2023

[24] The Hidden Impact of adoption, The Family Institute, available at https://www.family-institute.org/sites/default/files/pdfs/csi_drustrup_hidden_impact_of_adoption.pdf, last seen on 12/08/2023

[25] Harold D. Grotevant, Jen Dolan, And Kirby Deater-Deckard, The Future of Adoption: Concluding Thoughts about Research, Practice, and Policy, available at https://www.umass.edu/ruddchair/sites/default/files/rudd.final.pdf, last seen on 12/08/2023.

[26] Child Adoption: Trends and Policies, United Nations, available at https://www.un.org/en/development/desa/population/publications/pdf/policy/child-adoption.pdf, last seen on 12/08/2023

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