LAKSHMI KANT PANDEY v. UNION OF )NDIA

The Judgment of the Court was delivered by ;::

BHAGWATI, J. This writ petition has been. initiated on the basis of a letter addressed by one Lax mi Kant Pandey, an advocate F practising in this Court, complaining of mat-practices indulged in by social organisations and voluntary agencies engaged in the work of offering Indian children in adoption to foreign parents. The letter referred to a press report based. on "empirical investigation carried out by the staff of a reputed foreign magazine" called "The Mail" and alleged that not only Indian children of tender age are under the guise of adoption ''exposed to the long horrendous journey ' G to distant foreign countries at great risk to their lives but in cases where they survive and where these children are not placed in the Shelter and Relief Homes, they in course of time become beggars or prostitutes for want of proper care from their alleged foreign foster parents." The petitioner accordingly sought relief restraining Indian based private agencies "from carrying out further activity of routing children for adoption abroad" and directing the Govern-

L.K. PANDBY v. UNION (Bhagwati, J.) 805 '· ·.~ ment oflndia, the Indian Council of Child Welfare and the Indian Council of Social _Welfare to carry. out their obligations in the matter of adoption of Indian children by foreign parents. This letter was treated as a writ petition and by an Order dated 1st September, 1982 the Court issued notice to the Union of India the Indian Council of Child Welfare and the Indian Council of Social Welfare to appear in answer to the writ petition and assist the Court in lay- B ing down principles and norms which should be followed in determin• ing whether a ehild should be allowed to be adopted by foreilin parents and if so, the procedure to be followed for that purpose, with the object of ensuring the welfare of the child.

The Indian Council of Social Welfare was the first to file its C.l written submissions in response to the notice issued by the Clouft and its· written submission ij.led on 30th September, 1982 not only carried considerable useful material bearing on the question of adoption of Indian children by foreign parents but also contained. · various suggestions and recommendations for consideration by the Court in formulating principles and norms for permitting such .D adoptions and laying down the procedure for that purpose. We shall have occasion to refer to this large material placed before us as also. to discuss the various suggestions. and recommendations made in the written ·submission by the Indian Council of Social Welfare when we take up for coesideration the various issues arising

.. in the writ petition. Suffice it to state for the present that the written submission of the Indian Council of Social Welfare is a well thought out document dealing comprehensively with various aspects of the problem in its mani-fold dimensions. When the writ petition reached hearing before the Court on 12th October, 1982 the only writt~n E

1· submission filed was that tlt_e Indian Council of Social Welfare and neither the Union of India nor the Indian Council of Child Welfare F -~ had made any response to the notice issued by the Court. But there was a telegram received from a Swedish Organisation called 'Barnen Framfoer Allt Adoptioner" intimating to the Court that this Orga- nisation desired to participate in the hearing of the writ petition and to present proper material before the Court. S .O.S, Children's Villages of India also appeared through their counsel Mrs. Urmila Kapoor and applied for being allowed to intervene at the hearing of the writ petition so that they could made their submissions on the question of adoption of Indian Children by foreign parents. Since S.O.S. Children's Villages of India is admittedly an organi- sation concerned with welfare of children, the Court, by an Order dated 12th October, 1982, allowed them tq intervene and to· ma!<e .l ·H

806 SUPREME COURT REPORTS [1984) 2 S.C.ll.

A their submissions before the Court. The Court also by the same Order directed that the Registry may address a communication to Barnen Framfoer Allt Adoptioner informing them about the ad· journed date of hearing of the writ petition and stating that if they' wished to present any material and make their submissions, they. could do so by filing an affidavit before the adjourned date of hear- B iJ;g: The Court also directed the Union of ~ndia to furnish before the next hearing of the writ petition the names of "any Indian lnsti~ tutions or Organisations other than ·the Indian Council or'Sociai Welfare and the Indian Council of Child Welfare, which are engai- ed or involved in offering Indian children for adoption by foreign parents" and observed that if the Union of India does not have this c information, they should gather the requisite information so far as '.) it is possible for them to do so and to make it available to the Court. The Court also issued a similar direction to the Indian Council oi' Child Welfare, Indian Council of Social Welfare and S.O.S. Children's Villages of India. There was also a further direciion given in the same Order to the Union of India, the Indian Council D of Child Welfare, the Indian Council of Social Welfare and the (J S.O.S. Children's Villages of India "to supply to the C.ourt informa- tion in regard to the mmes and particulars of any foreign agencies which· are engaged in the work of finding Indian children for adop0 tion for foreign parenis". The writ petition was adjourned to 9th November, 1982· for enabling the parties to carry out these E directions. ··

F It appears that the Indian Council of Social Welfare thereafter in compliance with the directions given by the Court, filed copies of the Adoption of Children Bill, 1972 and the adoption of Children, Bill 1980. The adoption of Children Bill, 1972 was introduced in the Rajya Sabha sometime in 1972 but it was subsquently dropped; - •, presumably because of the opposition of the Muslims stemning from the fact that it was intended to provide for a uniform law of adoption applicable to all communities including the Muslims. It is a little difficult to appreciate why the Muslims should have opposed this Bill which merely empowered a Muslim to adopt if he so G· wished; it had no compulsive force requiring ·a Muslim to act ~-' contrary to his religious tenets : it was merely an enabling legis· lation and if a Muslim felt that it was contrary to his religion to adopt, he was free not to adopt. But in view of the rather strong sentiments expressed by the members of the Muslim Community and with a view not to offend their religfous susceptibilities, the H Adoption of Children Bill, 1980 which was introduced in the Lok

L.K. PANDEY v. ENION (Bhagwati, J.) 807

Sabha eight years later on 16th December, 1980, contained an ex· A press provision that it shai( not be applicable to Muslims. Apart from this change in its coverage the Adoption of Children Bill, 1980 was substantially in the same terms as the Adoption of Children Bill, 1972. The Adoption of'Children Bill 1980 has unfortunatety not·yet been enacted into law but it would be useful to notice some of the relevant provisions of this Bill in so far as they indicate what. •3' B principles and norms the Central Government regarded as neceSliary to be observed for securing the welfare of children sought to be given in adoption to foreign parents and what procedural safeguards the Central· Government- thought, were essential for securing this end. Clauses 23 <tn.d 24 of the Adoption of Children Bill, 1980 dealt with the problem of adoption of Indian children by parents '.)C domiciled. abroad and, in so far as material, they provided· iis follows :

.-. " "23 (1) Except antler the authority of an order under section 24; it shall no_t be lawful for any person to take or send out of India a child who is a citizen of India · to any (]) place outside India with a view to the adoption of the child by any person.

(2) Any person who takes. or sends a child out .of India to any place outside India in contravention of sub- ·r section (l) or makes or takes part in any arrangements for '.IJ: transferring the care and custody of a child to any person · for that purpose shall lie punishable with imprisonment for " a term which may extend to six months or with fine, or ' with both. .1

(24) (I) If upon an application made by a person who is not domiciled in India, the district court is satisfied that the applicant intends to adopt a child.under the law of ... or within the country in which he is domiciled, and for that purpose desires to remove the child from India either immediately or after an interval, the court may make an order (in this section referred to as a provisional adoption order) authorising the applicant to remove the child for tl!e purpose aforesaid and giving to the applicant the care and· custody of the child pending his adoption as afore- said:

Provided that '!0 application shall be entertained

~08 SUPRBMB COURT RBPORTS [1984] 2 s.c.a

unless it ·is accompanied by a certificate by the Central Government to the effect that- (i) the applicant is in its opinion a fit person to adopt the child ;

(ii) the welfare and interests of the child shali be safe- guarded under the law of the country of domicile of the applicant;

(iii) the appliaant has made proper provision by way of deposit or bond or otherwise in accordance with the rules made under this Act to enable . the ·child to be re- · patriated to India, should it become necessary for any reason.

(2) The provisions of this Act relating to an adoption order shall, as far as may be; apply in relation to a pro- visional adoption order made under this section.

The other caluses of the Adoption of Children Bill, 1980 were $Ought to· be made applicable in relation to a provisional adoption order by reason of sub-clause (3) of clause 24. The net effect of this provision, if the Bill were enacted into law, would be that in :·1 view of clause 17 no institution or organisation can make any

- arrangement for the adoption of an Indian child by foreign parents unless such institution or organisation is licensed as a social welfare Institution and under Clause 21, it would be unlawful to make or to give to any person any payment or reward for or in consideration of the grant by that person of any eonsent required in connection f with the adoption of a child or the transfer by that person of the care and custody of such child with a view to its adoption or the making by that person of any arrangements for such adoption. Moreover, in view of Clause 8, no provisional adoption order can be made in respect of an Indian child except with the consent of tile parent or guardian of such child and if such child is in the care ·G of an institution, except with the C0nsent of the institution given on its behalf by all the persons entrusted with or in charge of its management, but the District Court can dispense with such consent if it is satisfied that the person whose consent is to be dispensed with has abandoned, neglected or persistently ill-treated the child 0

or has persistently failed without reasonable cause to discharge his . ; !)bligation as parent or guardian or can not be found or is incapable B of giving consent or is withholdin~ consent unreuonably. When a

l..11:. :PANDEY v. UNION (Bhagwati, J.) ' 809

provisional adoption order is made by the District Court ou the application of a per son domiciled abroad, such persou would be entitled to obtain the care and custody of the child in respect of which the order is made and to remove such child for the purpose of adopting it under the law or within the. country in which he is domiciled .. These provisions in the Adoption of Children Bill, 1980 will have to be borne in mind when we formulate the guidelines which must be observed in permitting an Indian child to be given in adoption to foreign parents. Besides filing copies of the Adoption of Children Bill, 1972 and the Adoption of Children Bill, 1980 the · Indian Council of Social Welfare also filed two lists, one list giving names and particulars of recognised agencies in foreign countries engaged in facilitating procurement of children from other countries c for adoption in their own respective countries and the other list c6ntaining names and particulars of institutions arid organisations in India engaged in the work of offering and placing Indian children for adoption by foreign parents.

The Writ Petition thereafter came up for hearing on 9th · D November, 1982 when several applications were made by various <I institutions and organisations for intervention at the hearing of the writ petition. Since the questions arising in the writ petitio'n were of national importance, the Court thought that it would be desirable to have assistance from whatever legitimate source it. might come and accordingly, by an order dated 9th November, 1982·, the Court

- granted permission to eight specified institutions or organisations to file affidavits or statements placing relevant material before the · Court in regard to the question of adoption of Indian children by foreign parents and directed that such affidavits or statements should be filed on or before 27th November, 1982. The Court also. ·issued notice of the writ petition to the State of West Bengal directing it r. to file its affidavit or statement on or before the same date. The Court also directed the Superintendent of Tees Hazari courts to produce at the next hearing of the writ petition quarterly reports in regard to the orders made under the Guardian and Wards Act , 1890 .entrusting care and custody of Indian children to foreign parents during the period of five years immediately prior to 1st October,

1982. Since the Union of India had not yet filed its affidavit or . statement setting out what was the attitude adopted by it in regard to this question, the Court directed the Union of India to file its affidavit or statement within the same time as the others. The· Court then adjourned the hearing of the writ petition to 1st December '1982 in order that the record may be completed by that time. H

810 SUPREME COURT REPORTS [1984] 2 s.o.il.

Pursuant to these directions given by the Court, various affi- davits and statements were filed on behalf of the Indian Council of Social Welfare, Enfants Du Monde, Missionaries of Charity, En· fants De L's Espoir, Indian Association for promotion of Adoption Kuan-yin Charitable Trust, Terre Des Homes (India) Society; Maha- rashtra- State Women's Council, Legal Aid Services West Bengal, B SOS Children's Villages of India, Bhavishya International Union. for Child Welfare and the Union of India. These affidayits and statements placed before the Court a wealth of material. bearing , upon the question of adoption of Indian children by foreign parents 1 and made valuable suggestions and recommendations for the consi- , deration of the Court. These affidavits and statements were supple-. c mented by elaborate oral arguments which explored every facet of the question, involving not .only legal but also sociological consi- _rm .. derations. We are indeed grateful to the various participants in_, this inquiry and to their counsel for the very able assistance rendered,, by them in helping us to formulate principles and norms which { ' should be observed in giving Indian children in adoption to foreign D • parents and the procedure that should be followed for the purpose. of ensuring that such inter-country adoptions do not lead to abuse )

maltreatment or exploitation of children and secure to them a healthy, decent family life. '• ·, I

• '!': It is obvious that in a civilized society the importance of child E welfare cannot be over-emphasized, because the welfare of the entire~ community, its growth and development, depend on the health and" well-being of its children. Children are a "supremely importani national asset" and the future well being of the nation depends· on how its children grow and develop. The great poet Milton , put it admirably when he said : "Child _shows the man a~ F morning shows the .day" and the Study . Team on Social Wel- fare said much to the same effect when it observed that "the physical.· and mental health oflhe nation is determined largely by.. the manner in which it is shaped in the early stages". The child iS · a soul with a being, a nature and capacities of its own, who must lie ' helped to find them, to grow into their maturity, into fulness of' G physical and vital energy and the utmost breadth, depth and height of its emotional, intellectual and spiritual being; orherwise there cannot be a healthy growth of the nation. Now obviously children need ·special protection because of their tender age and physique mental immaturity and incapacity to look-after themselves. That ·is why therr is a growing realisation in every part of the globe that children must be brought up in an atmosphere of love and affection

i:;.K.· PANDEY v. UNION (Bhagwati, J.) 811

and under the tender care and attention of parents so that they may be able to attain full emotional, intellectual and spiritual stability

' and maturity and ecquire self-confidence and self-respect and a balanced view of life with full appreciation and realisation of the role which they have to play in the nation buildit1g process without which· the nation cannot develop and attain real prosperity because a large segment of the society would then be left out of the develop- B mental process. In India this consciousness is reflected in the pro- visions enacted in tl1e Constitution. Clause (3) of Article 15 enables the State .to make special provisio~s inter alia for children and Article 24 ·provides that no child below the age of fourteen ·years shall be employed to work in any factory or mine or engaged in any other hazardous employment. Clauses (e) and (f) of Article 39 · c provide that the State shall direct its policy towards securing inter alia that the tender age of children is not abused, that citizens are not forced by economic necessity to enter avocations unsuited to their age and. strength and that children are given facility to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against tnoral and material abandonment. These constitutional pro- visions reflect the great anxiety of the constitution makers to protect. and safeguard the .interest. and welfare of children in the count~y. The Government of India has also in pursuance of these constitu- tional provisions evolved a· National Policy for the Welfare of Children. This Policy starts with a goal-oriented preambula!ory introduction : ·

"The nation's children are a supremely important asset. Their nurture and solicitude are our responsibility.' Children's programme should find a prominent part in our national plans for the development of human resources, so that our children grow up to become robust citizens, physi- cally fit, mentally alert and morally healthy, endowed with the skills and motivations needed by society. Equal oppor- . tunities for ·development to all children during the period of growth should be our aim, for this would serve our larger purpose ofreducing inequality and ensuring social G ( justice."

The National Policy sets out the measures which the Govern- men.t of India proposes to adopt towards attainment of the objectives set out in the preamoulatory introduction and they include measures •r designed to protect children against neglect, cruelty and exploitation H

812 SUPRBME COURT REPORtS (1984j 2 s.c.ll: A' and to strengthen family ties "so that full potentialities of growth of children are realised within the normal family neighbourhood and community environment." The National Policy also lays down priority in programme formation and it gives fairly hlgh priority to maintenance, education and training of orphan and destitute children. There is also provision made in the National Policy for const_itution B of a Natioual Children's Board and pursuant to this provision, the Government of India has Constituted the National Children's Board with the Prime Minister as the chair person. It is the function of the National Children's Board to provide a focus for planning and ·review and proper coordination of the multiplicity o{ services striv- ing to meet the needs of children and to ensure at different levels C continuous planning, review and coordination of all the essential services. The National Policy also stresses the vital tole which the voluntary organisations have to play in the field of education, health recreation and social welfare srrvices for chlldren and declares that it shall be the endeavour of State to encourage and strengthen such + voluntary organisations. D There bas been equally great concern for the welfare of child- ren at ·the international level culminating in the Declaration of the Rights of the Child adopted by the General Assembly of the United Nations on 20th November, 1959. The Declaration in its Preamble points out that "the child, by reason of his physical and mental E immaturity, needs special safeguards and care, including appropriate. legal protection, before as well as after birth", and that "mankind. owes to the child the best it bas to give" and proceeds to formulate several Principles of which the following are material for our present purpose:

F "PRINCIPLE 2 : The child shall enjoy special protec- tion and shall be given opportunities and facilities by law and by. other means, to enable him to develop physically mental ly morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the' enactment of laws for this purpose the best interests of the G child shall be the paramount consideration."

PRINCIPLE 3 : The cliild shall be entitled from his birth to a name and a nationality.

PRINCIPLE 6 : The Child, for the full and harmoni- ··7 ous development of hls personality, needs love and under- . .'

Lit, p ANDBY v. UNION (iJhagwati, J.) ill~

standing. He shall, wherever possible, grow up in the care Af __ and under the responsibility of his parents, ~nd in any case ln an atmosphere of affection and of moral and material security; a child of tender years shall not, save in exceptio- nal circumstances, be seperated from his mother. Society · and the public· authorities shall have t.he duty to extend particular care to children without a family and to those without adequate means of support. Payment of State and other assistance towards the maintenance of children of large families is desirable. B PRINCIPLE 9 : The child shall be protected against all forms of_neglect, cruelty and exploitation. He shall not be. the subject of traffic, in any form.

PRINCIPLE 10 : The child shall be protected from practices which may foster racial, religious and any other c form of discrimination. He shall be brought up. in a spirit of understanding, tolerance friendship among peoples, peace and universal brotherhood and in full consciousness that his energy and'talents should be devoted to the service of his fellow men." D Every child hos a right to love and be loved and to grow Up in an atmosphere of love and affection and of moral and material security and this is possible only if the child is brought up in a family. The mosl congenial environment would, of course, be that of the family of his biological· parents. But if for any reason it is not possible for the biological parents or other near relative to look after . the child or the child is abandoned and it is either not possible to trace the parents or :the parents are not willing to take care of the child, the next best alternative would be to find adoptive parents for the F ''' child so that the child can grow up under the loving care and atten• tion of the adoptive parents. The adoptive parents would be the . next best substitute for the biological parents. The practice of: adoption has been prevalent in Hindu Society for centuries and it is recognised by Hindu Law, but in a large number of other countries it· .is of comparatively recent origin while in the muslim countries it is totally unknown. Amongst Hindus, it is not merely ancient Hindu 4w which recognises the practice of adoption but it has also be.en legislatively recognised in the Hindu Adoption and Maintenance Act, 1956. The Adoption of Children Bill 1972 sought to provide for· a uniform law of adoption applicable to all communities includ-

814 : UPREME COURT REPORTS [1984] !2 s.c.il.

A ing the muslims but, as pointed out above, it was dropped owing to the strong opposition of the muslim community. The Adoption of Children Bill, 1980 is now pending in Parliament and if enacted, it will provide a uniform law of adoption applicable to alt communities in India excluding the muslim community. Now when the parents . of a ?hild want to give it away in adoption or the child is abandoned B and it is considered necessary in the interest of the child to give it in adoption, every effort must be made first to find adoptive parents for it within the country, because such adoption would steer clear of any problems of assimilation of the child in the family of the

c adoptive parents which might ari1e on .account of cultural, racial or linguistic differences in case of adoption of the child by foreign parents. If it is not possible to find suitable adoptive parents for the child within the country, it may become necessary to give the child in adoption to foreign parents rather than allow the child to 1 grow up in an orphanage or an institution where it will have no + family life and no love and affection of parents and quite often, in the socio·economic conditions prevailing in the country, it might D have to lead the life of a destitute, half clad, half· hungry and suffer- ing from mal-nutrition and illness. Paul Harrison a free-lance journalist working for several U.N. Agencies including the Inter- national Year of the Child Secretariat points out that most third world children suffer "because of their colintry's Jack of resources fo' development as well as pronounced inequalitie' in the way avail- E able resources are distributed" and they face a situation of absolute material deprivation. He proceeds to say that for quite a large. number of children in the rural areas, "poverty and lack of edu- cation of their parents, combined with little or no access to essential services of health, sanitation and education, prevent the realisation of iheir full human potential making them more .likely to grow up F uneducated, unskilled and unproductive" and their life is blighted · by malnutration, lack of health care and disease and illness caused by starvation, in1pure water alld poor sanitation. What Paul Harri- son has said about children of the third world applies to children in India and if it is not possible to provide to them in India decent family life where they can grow up under the loving care and atten· G, tion of parents and enjoy the basic necessities of life such as nutri- tive food, health care and education and lead a life of basic human digi:tity with stability and security, moral as well as material, there is no reason why such children should not be allowed to be given H • in adoption to foreign parents. Such adoption would be quite con- sistent with our National Policy on· Children because it would

L;it, PANDEd v. UNION (Bhagwati, J.) 815 provide an opportunity to children, otherwise destitute, neglected A >. or .abandoned, to lead a healthy decent life, without privation and suffering arising. from poverty, ignorance, mal-nutrition and lack of · sanitation and free from neglect and exploitatio~, where they would be . able to realise "full potential of growth". But of course . as we ... said above, every effort must be made first to see if the child can fl be rehabilitated by adoption within. the country and if that is not B possible, then only adoption by foreign parents, or as it is some ti.1ne called 'inter country adoption' should be acceptable. This ptinciple stems from the fact th.at inter country adoption may in-.i valve trans-racial, trans-cultural and trans-national aspects which. would not arise in case of adoption within the country and the fi~st - ".:\ alternative should therefore always be to find adoptive parents for .C the child within the country. In fact, the Draft Guidelines of Pro- cedures Concerning Inter-Country Adoption formulated at the International Council of Social Welfare . Regional Conference of Asia aud Western Pacific held in Bombay in 1981 and approved .at the Workshop on Inter Country Adoption held in Brighton, U.K. il on 4th September, 1982, recognise the validity of this principle in clause 3.1 which provides: "Before'any plans are considered for a child to be adopted by a foreigner, the appropriate authority or agency shall consider all alternatives for permanent family care within tbe child's own country". Where, however, it is not possi- ble to find placem 'nt for the child in an adoptive family within the country, we do not see anything wrong if : a home is provided to the child with an adoptive family in a foreign country. The Govern- ment of India also in the affidavit filed on its behalf by Miss B. · Sennapati Programme Officer in . the Ministry of Social Welfare seems to approve of inter-country adoption for Indian children· and 1 the proceedings of the Workshop on Inter Country Adoption held in Brighton, ·u.K. on 4th September, 1982 clearly· show that the Joint· .F Secretary, Ministry of Social Welfare who represented the. Govern-' nient_ of India at the Workshop "affirmed· support of the' Indian - Governinent to the efforts of the international organisations in pro-· moting· measures ,to· protect wajfare and interests of.children ·who" are addpted aborad." G

But while supporting inter-country adoption, it is necessary to bear in .mind that the primary object of giving the child in· adoption· being the welfare of the child, great care has to be exercised· in permitting the child to be given in 'adoption to foreign parents, .Jest" the child may be neglected or abandoned by the adoptive parents in H

816 SUPREMll COURT REPORTS [19&1] 1 s.c.I\,

the foreign country or the adoptive parents may not be able to .pro· vide to the child a life of moral or material security or the child may be subjected to moral or sexual abuse or forced labour or ex· perimentation for medical or other research and may pe placed in a worse sitnation than that in his own country. The Economic and Social Council as also the Commission for Social Development have B therefore tried to evolve social and legal prihci plcs foF the protection and welfare of children given in inter-country adoption, The Econo- mic and Social Council by its Resolution 1925 LVIII requested the Secretary General of the United Nations to convene a group of Experts with relevant experts with relevant experience of family and child welfare with the following mandate : c "(a) To prepare a draft decleration of social and legal princip_les relating to adoption and foster placement of children nationally and internationally, and to review and appraise the recommendations and guidelines incorpo- rated in the report of the Secretary General and the rele· D: ,. vant material submitted by Governments already available to the Secretary General and the regional commissions.

(b) To draft guidelines for. the use of Governments in the implementation of the above principles, as well as sug- gestions for improving procedures within the context of their social development-including family· and child wel· fare-programmes.''

Pursuant to this mandate an expert Group meeting was convened in Geneva in December, 1978 and this Expert Group adopted a "Draft ·Ii' declaration on social and legal principles relating to the protection and welfare of children with special reference of foster placem~nt · and adoption, nationally and internationally". The Commission ,for Social Development considered the draft Declilration at its 26th Session and expressed agreement with its contents and the Econo- mic and Social Council approved the draft Declaration and request· G.: ed the General Assembly to consider it in a suitable manner. None of the parties appearing could give us information whether any action has been taken by the. General Assembly. B'ut the draft Declaration is a very important document in as much it lays down certain social and legal principles which must be observed in case of inter-country adoption. Some of the relevant principles set out

L,K, PANDBY r. UNION (Bhagwatl, J.) 817

in thC' draft Declaration may be referred to with advantage : • "Art. 2. It is recognised that the best child welfare is good family welfare.

4. When biological family care is unavailable or in· appropriate, substitute family care should be considered. B

7. Every child has a right to a family. Children who cannot remain in their biological family should be placed

~·· in foster family or adoption in preference to institutions, unless the child's particular needs can best be met in a specialized facility. c

8. Children for whom institutional care was formerly regarded as the only option should be placed with families, both foster and adoptive.

12. The primary purpose of adoption is to provide a permanent family for a child who cannot be cared for by his/her biological family.

14. In considering possible .adoption placements, those responsible for the child should select the most appropriate environment for the particular child concerned.

15. Sufficient time and adequate counselling should be given to the biological parents to enable them to reach a decision on their child's future, recognizing that it is in the child's best in.terest to reach this decision as early as possible.

16. Legislation and services should ensure that the child becomes an integral part of the adoptive family.

17. The. need of adult adoptees to know about their background should be recognized.

19. Governments should determine the adequacy of · their national services for children, and recognize those children whose needs are not being met by existing services. For some of these children, inter-country adoption may be· considered as a suitable means of providing them with a family.

21, In each countrr. placements §hould bo macle ·a·

818 SUPRBMB COURT REPORTS (1984) 2 S.C.R. .• I '

A through authorized agencies competent to deal with inter- /). ·" country adoption services and providing the same safe-·· · .guards and standards as are applied in national adoptions.

22. Proxy adoptions are not acceptable, in considera- tion of the child's legal and social safety.

B 23. No adoption plan should be considered before it has been established that the child is legally free for adop- tion and the pertinent documents necessary to complete the .,. adoption are available. All necessary consents must be in

·.~ a form which is legally valid in both countries. It must be definitely established that the child will be able to imm'.- c grate into the country of the prospective adopters and can subsequently obtain their nationality.

24. In intercountry adoptions, legal validation of the adoptio11 should be assured in the countries involved.

D 25. The child should at all times have a name, natio- (j, nality and legal guarC!iati."

Thereafter at the Regional Conference of Asia and Western Pacific held by the International Council on Social Welfare in Bombay in i9ll, draft guidelines of procedure concerning inter-country adop- · tion were formulated and, as pointed out above, they were approved at the Workshop held in Brighton, U.K. on 4th September, 1982.

F ·:; These guidelmes were based on the Draft Declaration and they are extremely relevant as· they reflect the almost unanimous thinking of participants from various countries who took part in the Regionat Conference in Bombay and in the Workshop in Brighton, U.K. There are quite .a few of these guidelines which are important and - which deserve serious consideration by us : ·

"1.4. In all inter-country adoption arrangements, the welfare of the child shall be prime consideration.

G Biological Parents: :) 2.2. When the biological parents are known they shall he offered social work services by professionally quali- fied workers (or experienced personnel who are supervised by such qualified workers) before and after the birth of the JI ohild. "

L,K. PANDEY 4. UNION (Bhagwati, ii.) 819

2.3. These services shall assist the parents to consi- A der .all the alternatives for the child's future. Parents shall not· be subject to any duress in making a decision about adoption. No commitment to an adoption plan shall be permitted before the birth of the child. After allowing parents a reasonable time to reconsider any decision to re- linquish a child for adoption, the decision should become B irrevocable. ·6

2.5. If the parents decide to relinquish the child for adoption, they· shall be helped to understand all the impli- cations, including the possibility of adoption by foreigners · and of no further contact with the child. c 2.6. Parents should be encouraged, where possible, to provide information about the child's background and development, and their own health. 2.8. It is the responsibility of the appropriate autho- rity or agency to ensure that when the parents relinquish a D child for adoption all of the legal requirements are met. •1 2.9. If the parents state a preference for the religious up-bringing of the child, these wishes shall be respected as far as possible, but the best interest of the child will be the paramount consideration. E

2.10. If the parents are not known, the appropriate authority or agency, in whose care the child has been placed, shall endeavour to trace the parents and ensure that the above services are provided, before taking any action in relation to adoption of the child. F The Child:

3.1. · Before any plans are considered for a child to be adopted by foreigners, the appropriate authority or agency shall consider all aHernatives for permanent family care within the child's own country. G

3.2. A child-study report shall be prepared by pro- fessional workers (or experienced personnel who are super- vised by such qualified workers) of an appropriate authority ' or agency, to provide information which will form a basis for the selection of prospe9tive· adopters for the child, H ' '

820 SUPREME COURT REPORTS [1984] 2 s.c.R.

A assist with the child's need to know about his original family at the appropriate time, and help the adoptive parents understand the child and have relevant information about him/her.

33. As far as possible, the child-study report shall B include the following : ·

3.3.1. Identifying information, supported where pos- sible by documents. 3.3.2. Information about original parents, including their health and details of the mother's pregnancy and the c birth. 3.3.3. Physical, intellectual and emotional develop- ment. 3.3.4. Health report. .,' D 3.3.5. Recent photograph. 3.3.6. Present environment-category of care (Own home, foster home, institution, etc.) relationships, routines and habits. 3,3.7. Social Worker's assessment and reasons for E suggesting inter-country adoption. j

3.4. Brothers and sisters and other children who have ;. been cared for as siblings should not be separated by adop- tion placement except for special reasons.

F 3.5. When a decision about an adoption placement is finalised, adequate time and effort shall be given to pre- paration of the child in a manner appropriate to his/her age and level of development. Information about the child's new country and new home, and counselling shall be pro· -·- 1 \. ,

vided by a skilled worker. G 3.5. (a) Before any adoption placement is finalized the child concerned shall be consulted in a manner appropriate ) to his/her age and level of development.

3.6. When older children are placed for adoption, .1 the adoptive parents should be encouraged to come to the .H child's country of ori11in, to meet him/her there, lea~!)

L.K. P~NDBY v. UNION (Bhagwati, J.) 821

personally about his/her. first environment ;ind escort the child to its new home.

Adoptive Parents :

4.3. In addition to the usual capacity for adoptive, parenthood. applicants need to have the capacity to handle the trans-racial, trans.-cultural and trans-national aspects of· · B inter-country adoptions.

4.4, A family study re.oort shall be prepared by pro- fessional worker (oi experienced personnel who are super- vised by such qualified workers) to indicate the basis on which the applicants were accepted as prospective adopters. It should include an assessment of the parents' capacity·to c parent a particular type of child and provide relevant in- formation for other authorities such as Courts.

4.5. The report on the family study, which must be made in the community where the applicants are residing, shall include details of the following : D ..l_ 4.5.1. Identifying information about_ parents and other members of the family, including any necessary docu- mentation.

4.5.2. Emotional and intellectual capacities of pros- E pective adopters, and their motivation to adoption.

4.5.3. Relationship (material, family, relatives, friends, community)

4.5.4. Health. 4.5.5. Accommodation and financial position. F 4.5.6. Employment and other interests.

4 5.7. Religious affiliations and/or attitudes.

·4.5.8. Capacity for adoptive parenthood, and details of child preferred (age, sex, degree of disability). G 4.5.9. Support available from relatives. friends, com- . munity.

4.5.10. Social worker's assessment and details of adoption authority's approval. H

822 SUPREME COURT REPORTS [\984) 2 S,C,R:

A 4,5.11. Recent photograph of family.

Adoption A•thorities and Agencies :

5.1. Inter-country adoption arrangements should be made only through Government adoption authorities (or agencies recognised by them) in both sending and receiving countries. They shall use experienced staff with professio- nal social work education or experienced personnel super- :--,- vised by such qualified workers.

5.2. The appropriate authority or agency in the c child's country should be informed of all proposed inter- country adoptions and have the opportunity to satisfy itself that all alternatives in the country have been considered, .and that inter-country adoption is the optimal choice of care for the child.

5.3. Before any inter-country adoption plan is consi- dered, the appropriate authority or agency in the child's country should be responsible for establishing that the child is legally free for adoption, and that the necessary documentation is legally valid in both countries.

5.4. Approval of inter-country adoption applicants is E a responsibility of the appropriate authorities or agencies in both sending and receiving countries. An application to adopt a child shall not be considered by a sending countrf unless it is forwarded through the appropriate authority or agency in the receiving._ country.

F 5.5. The appropriate authority or agency in both countries shall monitor the reimbursement of co,ts involved in inter-country adoption to prevent profi_teering and traffic king in children.

5.6. xx xx xx xx G 5.7. When a child goes to another country to be adopted, the appropriate authority or agency of the receiv- ing country shall accept responsibility for supervision of the placement, and for the provision of progress reports for the adoption authority or agency in the sending country for the period agreed. upon,

L,K. fANDBY v. UNION (Bhagwati, J.) 823

5.8. In cases where the adoption is not to be· finalised in the sending country, the adoption authority in the receiv- ing· country shall ensure that an adoption order is sought as soon as possible but not later than 2 years after place- ment. It is the responsibility of the appropriate authority or agency in the receiving country to inform the appro- priate autnority or agency in the sending country, of .the details of the adoption order when it is granted.

5.8.1. In cases where the adoptioA is to be .finalised

!h·· in tho sending country after placement, it is the responsi- bility of the appropriate authority or agency fo both the sending and receiving country to ensure that the adoption c is finalised as soon as possible. • 5.9. ·If the placemenfiis·disnipted before the adoption is finalised, the adoption authority in the receiving country . shali be responsible for ensuring, with the agreement of 'the D adoption authority in the sending country that a satis- .( faciory alternative placement is made with prospective adoptive parents who are approved by' the adoption autho- rities of both countries.

Adoption Services ond Communities : E

- 6.1. Appropriate . authorities o;agencies in.receiving countries shall ensure that there is adequate feedback to the appropriate authorities or agencies in sending countries, both in relation to inter·country adoption generally and to individual children where required. F

6.2. xx xx xx xx 6.3. The appropriate authorities and agencies in both sending and receiving countries have a responsibility .for G public education in relation to inter-country adoption, to ensure that when such adoption is appropriate for children, public attitudes support this. Where public attitude ·is known to be discriminatory or likely to be hostile on. grounds of race or colour, the. appropriate authority or , agency in the sending country should not consider place- ment of the child, H

824 SUPREME COURT REPORTS [1984] 2 S.C,R.

A Status of the Child ;

7.L Family; ·-,.· It is essential that in inter-country adoption child.is given the same legal status and rights of inheritence, as if she/he had been born to the B adoptive parents in marriage.

7.2. Name; When the legal adoption process is concluded the child shall have the equivalent of a birth regis- tration certificate. c 7.3. Nationality; When the legal adoption is concluded, the child shall be granted app<opriate citizenship.

74. xx xx xx xx D 7.5. Immigration; Before an inter-country adoption placement with particular prospective adopters is proposed, the appropriate authority or agency in the child's country shall ensiare that there is no hindrance, to the child entering the prospective adopters' country, and that ·travel documents can be ob- tained at the appropriate time.

We shall examine these provisions of the Draft Declaration and the draft guidelines of procedure when we proceed to consider and lay down the principles and norms which should be followed in inter- country adoption.

Now it would be convenient at this stage to set out the proce- dure which is at present being followed for giving a child in adop· tion to foreign parents. Since there is no statutory enactment in our country providing for adoptivn of a child by foreign parents or laying down the procedure which must be followed in such a case, resort is bad to the provisions of the Guardians & Wards Act 1890 for the purpose of facilitating such adoption. This Act is an old·statute enacted for the purpose of providing for appointment of guardian of the person or property of a minor. Section 4 sub- H section (5) clause (a) defines the "court" to mean the district court

Uc. PANDEY '· UNION (Bhagwati, J.) 825

having jurisdiction to entertain an application under the Act for an order appointing or declaring a person to be a guardian and the expression "district court" is defined in sub-section (4) of section 4 to have the same meaning as assigned · to it in the Code of Civil Procedure and includes a High Court in the exercise. of its ordinary original civil jurisdiction. Section 7 sub-section (1) provides that where the court is satisfied that it is for the welfare of a minor that an order should be made appointing a guardian of 'his person or property or both or declaring a person to be such a guardian, the court may make an order accordingly and, according to section 8, such an order shall not be made . except on the application of one of four categories of persons specified in clauses (a) to (d), one of them being "the person desirous of being the guardian of the minor" C and the other being "any relative or friend ·of the minor". Sub· section (I) of section .9· declares that· if the 'application' is with respect to the guardianship of the person of the minor-and that is the kind of application which is availed of for the purpose of inter- country adoption-it shall be made to the district court having jurisdiction in the place where the minor ordinarily resides. Then D follows section.11, sub·section (I) which prescribes that if the court is satisfied that there is ground for proceeding on the ap~lication, it shall fix a date for the hearing ·thereof aud cause notice of the application and or the date fixed for the hearing to be served on the parents of the minor if they are residing in any State to which the

- Act extends, the person if any named in the petition as having the custody or possession of the person of the minor, fhe person proposed in the application to be appointed guardian and any other person to whom, in the opinion of the court, special notice of the application should be given. Section 17 provides 'that 1n appoint- ing guardian of a minor, the court shall be guided by what, consi.•- E

tently with the law to which the minor is subject, appears in the F circumstances to be for the welfare of the minor and in considering what will be for· the welfare of the minor, the .court shall have regard to the age -sex, and religion of the minor, the character and .capacity o( the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent and any existing or previous relations of the proposed guardian with the minor or his G { property. The last materi.al section is section 26 which provides · that a guardian of the person of a minor appointed by the court shall not, without the leave of the court by which he was appointed, remove the ward' from the limits ,of its jurisdiction, except for such purposes as may be prescribed and the leave to be granted by th'e u

826 SUPREME COURT REPoRTS . [1982) 2 S.C.R.

A court may be special or general. These are the relevant provisions ' of the Guardians and Wards Act 1890 which have a bearing on the procedure which is at present· being followed for the purpose of carrying through intet·country adoption. The foreign parent makes an application to the court for being appointed guardian of the person cif the child whom he wishes to take in adoption ,and for leave of the court to take the child with him to his country on being appointed such guardian. The procedure to be followed by the court in disposing of such application is laid down by three High Courts in the country with a view to protecting the interest and safeguarding the welfare of the child, but so far .as the rest of the High Courts are concerned, they do not seem to have taken any c steps so far in that direction. Since most of the applications by foreign parents wishing to take a child in adoption in the State of Maharashtra are made on the original side of the High Court of . . Bombay that .High Court has issued a notification dated !0th May 1972 incorporating Rule 361-.B in Chapter XX of the Rules of the High-Court of Bombay (Original Side) 1957 an this newly added D. . Rule provides inter a/ia as follows :

When a foreigner makes an application for being appointed as the guard1an of the person or property· of a minor, the Prothonotary and Senior Master shall .address a letter to the Secretary of the Indian Council of Social Wel- E fare, informing him of the presentation of the application and the date fixed for the hearing thereof-he shall also inform him that any representation which the Indian Council of Social Welfare may make in the matter would be considered by the Court before passing the order on the application. A copy of the applicat1011 shall be ·forwarded 7 F to the Secretary of the Indian Council of Social Welfare -~'···· I alon 6 with the Jetter of Prothonotary and Senior Master."

The High Court of Delhi. has also issued instructions on the same lines to the Courts subordinate to it and these instructions read as follows : G (i) A foreigner desirous' of-being appointed guardian· a or the person of minor and praying for leave to remove the minor to a foreign country, shall make an application for the purpose in the pres- cribed form under the Guardians and Wards Act, H attaching with it three copies of passport size -~-. -.,_.

L.ic. PANDEY v. ENION (Bhagwati, J.) 827 A photographs of the minor, duly attested by the person having custody of the minor at the time ; ·

(ii) If the court is satisfied that there is no ground for proceedings on the application, it shall fix a day for the hearing there of and cause notice of the application and of the date fixed for the hearing B on the person and in the manner mentioned in Section 11, Guardians and Wards Act, 1890 as

~··. also to the general public and the Secretary of the Indian Council of child Welfare and consider their representation ; (iii) Every person appointed guardian of the person of c a minor shall execute a bond with or without .a surety or sureties as the court may think fit to direct and in such sum as the court may fix, having regard to the welfare of the minor and to ensure his production in the court if and when so D required by the court ;

(iv) On the court making an order for the appointment of a foreigner guardian of the person of an Indian minor, a copy of the minor's photograph shall be

.. counter-signed by the Court and issued to the guardian or joint guardian, as the case may be, appointed by the court alongwitb the certificate or guardianship." E .

The High Court of Gujarat ·has not fra1ned any specific rule for this purpose like the High Courts of Bombay and Delhi but 'in a judgment delivered in 1~32· in the case of Rasiklal Chaganlal F Mehta,(') the· High Court of Gujarat bas maqe the following obser· vations:

"In order that the Courts cari satisfactorily decide an intercou11try adoption case against the aforesaid back· ground and in the light of the above referred gµidelincs, we G { consider it necossary to gi1'e certain direction>. In ali such cases, the Couri should issue notice to the Indian Council of Social Welfare (175, Dadabbai Naroji Road, Bombay·

(I) AIR 1982 Guj. 193. ll

828 ~ UPRBME COURT REPORTS (1984j 2 s.c.fl.. A 400001) and seek its assistance. If the Indian Counc.l of Social Welfare so desires it should be made a party to the proceedings. If the Indian Councilof Social W~lfare does not ap.pear, or if it is unable, for some reason, to render assistance, the Court should issue notice to an independent, reputed and publicly/o!ficially B recognised social welfare agency working in. the field and in that area and request it to render assistance in the matter." The object of giving notice to the Indian .Council of Social Welfare or the Indian Council for Child Welfare or any other independent, reputed and publicly or officially recognised social welfare agency is obviously to ensure that the application of foreign c parents for guardianship of the child with a view to its eventual adoption is properly and carefully scrutinised and evaluated by an expert body .having experience in the area of child welfare with a 't view to assisting the Court in coming to the conclusion whether it will be in the. interest of the child, promotive of its welfare, to be adopted by the foreign parents making the application or in other words, whether such adoption will provide moral and material secu- rity to the child with an oppor.tunity to grow into the full stature of its personality in an atmosphere of love and affection and warmth of a family hearth and home. This procedure which has been evolved by the High Courts of Bombay, Delhi and Gujarat is, in our opinion, eminently desirable and it can help . considerably to reduce, if not eliminate, the possibility of the child boing adopted by unsuitable or undesirable parents or being placed in a family where it may be neglected, maltreated or exploited by the adoptive parents. We would strongly commend. this procedure for accep- tance by every court .in the country which has to deal with an appli- cation by a foreign parenf for appointment of himself as guardian of a child with a view to its eveutual adcption. We shall discuss this matter a little more in detail when we proceed to consider what p_rinciples and norms should be laid down for inter-country adop- tion, but, in the meanwhile, proceeding further with the narration of the procedure followed by the courts in Bombay, Delhi and Gujarat, we may point out that when notice is issued by the court, the Indian Council of Social Welfare or the Indian Council for Child Welfare or any other recognised social welfare agency to which notice is issued, prepares what may conveniently be described as a child study report and submits it to the Court for its considera- tion. What are the different aspects relating to the child in respect of which the child study report should give information is a matter which we shall presently discuss, but suffice it io state fo~ the time

t..K. PANDEY v. UNION (Bhagwati, J.) 829

being ·that the child study report should contain legal and social data in regard to the child as .also an assessment of its behavioural pattern and its ,intellectual, emotional and physical development. The Indian Council of Social Welf~re has evolved a standardised form of the child study report and it has been annexed as Ex. 'C" to the reply filed in answer . to the notice issued by the Court. Ordinarily an adoption proposal from a foreign parent is sponsored by a social or child welfare agency recognised or licensed . by the Government ohhe country in which the foreign parents resides and the application of the foreign parent for appointment as guardian of the child is accompanied by a home study report prepared by such social or child welfare agency. The home study report contains an assessment of the fitness and suitability of the foreign parent c for taking the child in adoption based on his antecedents, family background, financial condition, psychological and emotional adapta· bility and the capacity to look after the child after adoption despite racial, national and cultural differences, The Indian Council of Social Welfare has set out in annexure 'B' to the reply filed by it, guidelines for the preparation of the home study report in regard to the foreign parent wishing to take a chiid in adoption, and it i obvious from these guidlines which we shall discuss a little later, that the home study report is intended to provide social and legal facts in regard to the foreign parent with a view to assisting the

- court in arriving at a proper determination of the question whether it will be in the interest oft.he child to be given in adoption to such foreign parent. The court thus has in most cases where an appli- cation is made by a foreign parent for being appointed guardian of a child in the courts in Bombay, Delhi and Gujarat, the ·child study report as well as the home study report together with other relevant material in order to enable it to decide whether it will be for the welfare of the child to be allowed to be adopted by the foreign parents and if on a consideration of these reports and material, the court comes to the.conclusion that it will be for the welfare of the child, the court makes an order appointing the foreign parent as gurdian of the child with liberty to him to take the child to his own country with ~·view to its eventual adoption. Since adoption in a foreign country is bound to take some time and till then the child would continue to be under the guardianship of the foreign parent by virtue of the order made by the court, the foreign -parent as guardian would continue to be accountable to the court for the welfare of the child' and the court therefore takes a bond from him with or without surety or sureties in such sum as may be thought .for ensuring its production if and . when required by the court. H

830 SUPRBMB COURT RBPORTS (1984] 2 S C.R. ' A The foreign parent then takes the child to his own country either personally or through an escort and the child is then adopted by the foreign parent according to the law of his country and on such adoption, the child acquires the same status as a natural born child with the same rights of inheritance and succession as also the same nationality as the foreign parent adopting it. This is-broadly the procedure which is followed in the courts in Bombay, Delhi and B Gujarat and there can be no doubt that, by and large, this procedure tends to ensure the welfare of the child, but even so, there are several aspects of procedure and detail which need to be considered in order to make sure that the child is placed in the right family where it will be. able to grow into full maturity of its personality with c moral and material . security and in an atmosphere of love and warmth and it would not be subjected to neglect, mal·treatment or exploitation. Now one thing is certain that in the absence of a law providing for adoption of an Indian child by a foreign parent, the only way in which such adoption can be effectuated is by making it in accor- D dance with the law of the country in which the foreign parent resides. But in order ·to enable such adoption to be made in the country of the foreign parent, it would be necessary for the foreign parent to take the child to his own country where the procedure for making the adoption in accordance with the law of that: country can be followed. However, the child which is an Indian national cannot E be allowed to be removed. out of India by the foreign parent unless the foreign parent is appointed guardian of the person of the child by the Court and is permitted by the Court to take the child to his ' own country under the provisions of the Guardians and Wards Act

1890. Today, therefore, as the law stands, the only way in which a foreign parents can take an Indian child in adoption is by making i F an application to the Court in .which the child ordinarily resides for being appointed guardian of the person of the child with leave to ;-~ remoye the child out of India and take it to his own country for the purpose of adopting it in accordance with the law of his country. We are definitely of the view that such inter-country adoption should be permitted after exhausting the possibility of adoption within the country by Indian parents. It has been the experience of a large ) G . number of social welfare agencies working in the area of adoption that, by and large, Indian parents are not enthusiastic about taking a stranger child in adoption. and even if they decide to take such child in adoption, they prefer to adopt a boy rather than a girl and they are. wholly averse to adopting a handicapped child, with the result that the majority of abandoned, destitute or orphan girls and I

L.K. PANDBY.d. UNION (Bhagwati, J.) 831

. handicapped children have very little possibility of finding adoptive parents within the country and their future lies only in adoption by foreign parents. But .at the same.time it is necessary to bear in mind that by reason of the unavailability of children in the develop- ed countries for adoption, there is a .great demand for adoption of children from India and consequently there is increasing danger of ill-equipped and sometimes even undesirable organisations or indi- B viduals activising themselves· in the field of inter-country adoption with a view to trafficking in children and sometimes it mav also _)--. happen that the immediate prospect of transporting the_ child from

"" neglect and abandonment to material comfort and security by plac- ing· it with a foreigner may lead to other relevant factors such as the intangible needs of· the· child, its emotional and. psychological c requirements and possible difficulty of its assimilation and integra- tion in a foreign family with a different racial and cultural back- ground, being under-emphasized, if not ignored._ It is therefore necessary to evolve normative and procedural safeguards for ensuring that the child goes into the right family which would provide it warmth and affection of family life and help it to grow and develop physically, emotionally, intellectually and spiritually. These safe- guards we now proceed to examine ..

We may make it clear. at the outset that·we arc not concerned here with cases of adoption of children living with their biological parents,. for in such class of ·cases, the biological parents would be the best persons to decide whether to,give their child in adoption to foreign parents. It is only in those cases where.the children sought to be taken m adoption are destitute or abandoned ·and are Jiving in social or child welfare centres that it is necessary to consider what normative and pr.ocedural safeguards seould be forged for protecting their interest and promoting their welfare. F

Let us first consider what are the requirements which should be insisted upon so far ar a foreigner wishing to take a child in adoption is concerned. In the first place, every application from a foreigner desiring to adopt a chiid must be sponsored by a social or child welfare agency recognised or licensed by the government of the country in which the foreigner is resident. No application by a foreigner for taking a child in adoption should be entertained directly by any social or welfare agency in India working in the area cf inter-country adoption or by any institution or centre or home to which children are committed by the juvenile.court. This is essential primarily for three reasons. · H

832 SUPREME COURT llBi>ORtS [J984J~ S.C.R,

A Firstly, it will help to reduce, if not eliminate altogether the possibility of profiteering and trafficking in children, because if a foreigner were allowed to contact directly agencies or individuals in India for the purpose of obtaining a child in adoption, he might in his anxiety to secure a child for adoption, be induced or persua- ded to pay any unconscionable or unreasonable amount which might B be demanded by the agency or individual procuring the child. Secondly it would be almost impossible for the court to satisfy itself that the foreigner who wishes to take the child in adoption would be suitable as a parent for the child and whether he would be able to provide a stable and secure family life to the child and would be able to handle trans-racial, trans-cultural and trans-natio- c nal problems likely to arise from 'such adoption, because, where the application for adopting a child has not been sponsored by a social or child welfare agency in the country of the foreigner, there would be no proper arid satisfactory home study r~port on which the court can rely. Thirdly, in such a case, where the application of a foreigner for taking a child in adoption is ·made directly without the intervention of a social or child welfare agency, there would be no . authority or agency in the country of the foreigner who could be made responsible for supervising the progress of the child and en- suring that the child is adopted at the earlist in accordance with law and grnws up in an atmosphere of warmth and affection with moral and materia 1 security assured to it. The record shows that in every foreign country where children from India are taken in adoption, there are social and child welfare agencies licensed or recognised by the government and it would not therefore cause an'y difficulty hardship or inconvenience if it is insisted that every appli- cation from a foreigner for taking a child in adoption must be span- .sored by a social or child welfare agency licensed or recognised or recognised by the government of the country in which the foreigner resides. It is not necessary that there should be only one social or child welfare agency in the foreign country through which an appli- cation for adoption of a child may be routed ; there may be more than one such social or child welfare agencies, but every such social or child welfare agency must be licensed or recognised by the govern- G ·ment of the foreign country and the cout should not make an order for appointment of a foreigner as guardian unless it is satisfied that the application of the foreigner for adopting a child has been spon- sored by such social or child welfare agency. The social or child welfare agency which sponsors the application for taking a child in adoption must get a home study report prepared by a prpfessional H