Foreign adoptions
Foreign Adoptions under Private International Law
Introduction
Adoption is a legal process by which a person takes a child of another as their own, creating a
permanent parent-child relationship. Under Private International Law (PIL), adoption raises
significant questions when the child, adoptive parents, or both, belong to different jurisdictions or
countries. The issue is complicated due to differences in domestic adoption laws, personal laws,
public policy, and international conventions.
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Meaning of Foreign Adoption
A foreign adoption occurs when:
1. A child is adopted in one country, but the adoptive parents reside in another country; or
2. An adoption order made in one country is sought to be recognized and enforced in another
country.
For example, if Indian adoptive parents adopt a child from the USA (or vice versa), the adoption
must be valid both in the country where it is made and in the country where recognition is
sought.
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Problems in Foreign Adoption under PIL
1. Conflict of laws – Different countries have different requirements (religion, age, consent,
procedures).
2. Recognition of adoption decrees – Whether a foreign adoption order is valid and enforceable
in the new country.
3. Public policy concerns – Trafficking, child welfare, or evasion of local adoption laws.
4. Effect of adoption – In some systems (like Hindu law), adoption severs ties with natural
parents, while in others (like English law), it may not have the same effect.
5. Nationality and immigration issues – Whether the adopted child gets the nationality of
adoptive parents.
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International Framework
The most important instrument is the Hague Convention on Protection of Children and
Co-operation in Respect of Intercountry Adoption, 1993.
Objectives:
Ensure intercountry adoptions take place in the best interests of the child.
Prevent child trafficking and abduction.
Establish safeguards and cooperation between contracting states.
Provisions:
Both sending and receiving states must be parties.
Each state must designate a Central Authority to handle adoptions.
Adoption must be recognized across contracting states if done in compliance with the
Convention.
India is a signatory and has implemented it through Juvenile Justice (Care and Protection of
Children) Act, 2015 and regulations of the Central Adoption Resource Authority (CARA).
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Position in England
Adoption is governed by the Adoption and Children Act, 2002.
England recognizes foreign adoptions if they are:
1. Made in a country listed in the “Designated List” by the UK government, or
2. Obtained through the Hague Convention process.
If adoption is not recognized automatically, adoptive parents must re-adopt the child in the UK
courts.
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Position in India
1. Hindu Law – Adoption is governed by the Hindu Adoption and Maintenance Act, 1956
(HAMA), but it applies only to Hindus and does not provide for foreign adoption.
2. Guardians and Wards Act, 1890 – Before the Hague Convention, foreigners could only obtain
guardianship, not adoption, under this Act.
3. Juvenile Justice Act, 2015 – Now provides for adoption irrespective of religion, nationality, or
personal law. Foreigners can adopt Indian children under the supervision of CARA, following
Hague Convention guidelines.
4. Supreme Court in Laxmi Kant Pandey v. Union of India (1984 AIR 469) – Laid down detailed
guidelines for intercountry adoption to prevent child trafficking and ensure child welfare. These
guidelines later influenced CARA and adoption laws in India.
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Case Laws
1. Laxmi Kant Pandey v. Union of India (1984) – Landmark case where the Supreme Court of
India issued guidelines on foreign adoptions, emphasizing the welfare of the child as the
paramount consideration.
2. Re Valentine’s Settlement (1965, Ch 831, UK) – English court held that adoption valid in one
country may not necessarily be recognized in England if it goes against English law or public
policy.
3. Re T (Foreign Adoption) [1998] 2 FLR 550 – UK case stressing that recognition of foreign
adoption depends on substantial compliance with local laws and child welfare.
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Recognition of Foreign Adoption Orders
Under PIL, a foreign adoption will generally be recognized if:
1. The adoption was valid under the law of the country where it took place.
2. The parties had capacity under their respective national laws.
3. It does not violate the public policy of the recognizing country.
4. The adoption safeguards the best interests of the child.
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Conclusion
Foreign adoptions under Private International Law involve reconciling conflicting domestic laws
with international child welfare principles. The Hague Convention, the role of CARA in India, and
judicial safeguards have reduced the risk of abuse. Ultimately, courts apply the principle of “best
interest of the child” while recognizing or enforcing foreign adoptions.
