Long way home: Wait for adoptive parents in Maharashtra gets longer, more painful

On January 11, the Bombay HC directed the Maharashtra government not to transfer pending adoption proceedings to DMs, as mandated under the Juvenile Justice (Care and Protection of Children) Amendment Act, 2021. In July 2021, the Rajya Sabha (RS) had passed an Amendment that transferred the power to issue adoption orders from civil courts to the DMs. The Amendment — which aimed to “strengthen” child protection under the JJ (Care and Protection of Children) Act, 2015, and ensure “faster” delivery of adoption cases — was passed despite protests and without any discussion in the RS.

Bombay High Court’s January 11 directive came during the hearing of a writ petition filed by advocates and Kandivli residents Nisha Pandya and Pradeep Pandya. Their plea challenged the constitutional validity of the 2021 Amendment. The hearing has been scheduled for June 12.

Due to the stay, the DM refused to issue the final adoption order with regard to the European couple’s case until the legal dispute was resolved. This meant that the couple are still not the legal parents of the toddler.

In an email to The Indian Express, the couple wrote, “This is weeks of standstill and (a) waste of time from our precious child. The child we are awaiting is a special needs child, getting her home is of utmost importance as she can get the medical treatment she needs as early as possible and (we can) make the necessary arrangements for her surgeries etc…”

But theirs is not an isolated case. Final adoption orders to many Prospective Adoptive Parents (PAPs) have come to a standstill in Maharashtra since January 11. Data from the state Women and Child Development (WCD) department showed that over 170 adoption applications in Maharashtra were stuck due to the writ plea. As of May 4, 79 cases were pending with the DM and 90 with the District Child Protection Officer in Maharashtra. Of those affected, 25 per cent comprise international PAPs. Unlike domestic PAPs, their international counterparts don’t have the pre-adoption right to foster the child at home for around two months in between the adoption committee’s assessment of suitability and the final adoption order.

The Indian Express spoke to prospective PAPs stuck in limbo thanks to the January 11 directive. With the process of adoption already taking 3-4 years — besides being the complicated and emotional roller-coaster that it is — this legal battle has added to the long wait for both PAPs and children.

A senior government WCD officer declined to comment on the issue saying it is sub-judice.

Tales of heartbreak

Sharing her adoption story, a 35-year-old South Mumbai resident said the past six months spent waiting for the final adoption order of her 1.5-year-old daughter have been a struggle. She said she brought the toddler home from Kolhapur for foster care in September 2021 after a wait of three long years.

“When our adoption process started, Kolhapur, which lies in the hinterland, wasn’t aware of the 2021 Amendment and applied for adoption via the district court. When I got my daughter home, the adoption centre asked me to withdraw my application from court and reapply to the DM. That took around 1-2 months. We finally got a hearing with the DM in January, but it was cancelled (due to the January 11 Bombay HC directions),” she said.

“Though she has been living with us since September 2021, I can’t get her birth certificate, Aadhaar card or even call her my daughter due to this delay,” she added.

Another woman in suburban Mumbai, who adopted a seven-year-old from a suburban centre, said she has been struggling to get her daughter admitted to a school in absence of the final adoption order. “We have the child as per the foster certificate but legally she is still not ours. So we can’t even admit her to school,” added the 41-year-old PAP.

An international PAP is caught in the same situation. In response to an email, a 46-year-old single woman from the United States shared that her hearing with the DM, which was scheduled for January 11, was cancelled.

“In December 2021, the agency matched me with a 4-year-old girl who suffers from a congenital heart disorder, called ventricular septal defect, from Nanded. I wanted to adopt her as soon as possible. However, due to constant changes in rules, my daughter is still stuck in the adoption centre despite her heart condition,” she wrote.

Another international PAP wrote in an email, “CARA should at least issue a statement about the state of adoption in Maharashtra … and if anything can be done to move a case that is stuck forward in court or before the DM. The general lack of communication and professionalism amidst the legal dispute is unfathomable.”

Maharashtra, which has the most Specialised Adoption Agencies (SAAs) centres in the country — 56 — also tops the chart when it comes to adoptions in India. According to a report of the Central Adoption Resource Authority (CARA), the statutory body under the Ministry of Women & Child Development (WCD) which is the nodal body that regulates in-country and inter-country adoptions, Maharashtra saw 593 domestic and 75 international adoptions in 2020-21 — the highest among all states.

As per data shared by the State Adoption Resource Agency (SARA), 640 children from Maharashtra were adopted by PAPs across the country in 2019-20. The number dropped to 610 in 2020-21. As the state battled with the deadly second wave of Covid-19, the figure plunged to 498 in 2021-22. In 2019-20, 98 children were adopted by international PAPs across the world. The number of adoptions by international PAPs increased to 104 in 2020-21 but dropped to 90 in 2021-22.

Policymakers and PAPs feel the uncertainty will discourage PAPs, especially international ones, from choosing to adopt from Maharashtra.

“Since Maharashtra has the highest number of adoption centres, it also has the most children. So we opted for Maharashtra as our preferred state for adoption but we regret that choice now,” said a Bengaluru-based couple, who have been waiting for nearly 3 years to welcome their child home.

As per the interim order, prospective PAPs seeking the final order can approach the High Court directly. However, there is a catch — the adoption files are stuck with the District Child Protection Units (DCPUs). “Until CARA gives the order, we can’t instruct DCPUs to return the files,” said a WCD officer.

Court vs DM

While introducing the Bill in July 2021, Union WCD Minister Smriti Irani had “in light of prevailing inadequacies in the system” (like delay in providing court orders), stressed the necessity for entrusting DMs with the responsibility of care and protection of vulnerable children.

“The amendments include authorizing District Magistrate including Additional District Magistrate to issue adoption orders under Section 61 of the JJ Act, in order to ensure speedy disposal of cases and enhance accountability,” read the statement issued by the government on July 28.

However, PAPs, policymakers and advocates have strongly opposed the 2021 Amendment. Instead, they have demanded setting up of fast-track courts or special adoption courts for better implementation of rules. They have also opposed giving the power to DMs, who are executives of the government, to issue adoption orders as they lack legal qualifications — unlike law professionals — in taking such decisions.

Talking to The Indian Express, Dr Nilima Mehta, national consultant, internationally renowned child protection consultant and visiting professor at TISS, said the amendment is “absolutely not sound in law”.

She explained, “Adoption is a socio-legal matter, so you have to do it in a court of law — because you break the legal rights of birth parents and establish new relationships, which can also be done by the court that gives you success, inheritance and family name. Just the executive order of a DM will not be in the best interest of the child as it will not ensure protection of child rights.”

She also outlined that DMs are subject to the control of the government, unlike the autonomous judiciary, which is not under the jurisdiction of the executive or the legislature. “A judge is more powerful than a DM, whose order also holds more legal significance,” said Mehta.

“DMs draw their powers under the CRPC, 1973, while adoption is a civil matter. This makes the legal binding of adoption (by DM orders) weak, which can be challenged by the biological parents later,” she said.

However, the state government felt differently. “It takes over 2-3 months on average to get the court’s final order. This (new power to DM) will fasten the process of adoption,” said a SARA officer.

However, nothing can help heal the sadness that PAPs are feeling.

The European couple in their email, “We are truly disappointed by the fact that red tape and bureaucracy … getting in the way of the basic human right for a child to have a family and a loving home.”