• Sirat Sehrawat

ABSTRACT: This dissertation provides a comprehensive analysis of adoption laws with a dual focus: The Indian legal framework and a comparative study of select international jurisdictions (United Kingdom, United States, and Australia). The central theme is the balancing of child welfare and parental rights within adoption law and practice. Adoption, as a legal process, creates a permanent parent-child relationship where none existed biologically, thereby implicating the welfare of children in need of families and the rights of biological (and prospective) parents. In Chapter 1 (Introduction), the historical evolution of adoption is traced – from ancient societal practices to modern legal systems – highlighting how the underlying objectives of adoption have shifted from lineage and inheritance towards ensuring the welfare of orphaned and destitute children. The research problem is introduced, underscoring the tension between a child’s best interests and the rights of birth parents (or families of origin), especially in scenarios of non-consensual adoption or state intervention. The scope, objectives, and methodology of the study are outlined; this research is primarily doctrinal and analytical, reviewing statutes, case law, and scholarly opinions, supplemented by a comparative methodology to draw lessons from other countries. Chapter 2 (Adoption Laws in India) examines the domestic legal regime: the personal law route under the Hindu Adoptions and Maintenance Act, 1956 (applicable to Hindus, Buddhists, Jains, Sikhs) and the secular route under the Juvenile Justice (Care and Protection of Children) Act, 2015 (open to all citizens regardless of religion, for adopting orphaned/abandoned children). The chapter critically analyses key provisions, including eligibility criteria for adoptive parents, procedural safeguards, and the legal effects of adoption. It also discusses the Guardians and Wards Act, 1890 – historically used by communities prohibited from formal adoption (e.g., Muslims, Christians) – and how guardianship differs from adoption in terms of permanency and inheritance. Recent developments, such as the 2021 amendment to the JJ Act empowering District Magistrates to issue adoption orders1 and the adoption regulations/guidelines issued by CARA, are reviewed. Landmark Indian case laws (e.g., Chapter 3 (Comparative International Perspectives) provides a detailed account of adoption law in the UK, USA, and Australia, offering a contrast to the Indian position. In the UK, the Adoption and Children Act 2002 and its welfare-centric approach (where the child’s welfare is paramount and adoption orders require court approval, often in the context of care proceedings) are discussed. Recent UK jurisprudence, especially the emphasis that adoption without parental consent should be a last resort (“nothing else will do” test from Re B2), is examined in light of human rights obligations under the European Convention on Human Rights. The US section outlines how adoption is primarily regulated by state laws within a federal framework that imposes certain standards, such as the Adoption and Safe Families Act (ASFA) 1997 which seeks to expedite permanency for foster children (mandating states to move for termination of parental rights after 15 months in foster care in many cases3. It also covers the Indian Child Welfare Act (ICWA) 1978, a unique federal law protecting the rights of Native American children and families in adoption cases4, and highlights major U.S. Supreme Court decisions affecting the balance between child welfare and parental/tribal rights (Santosky, Haaland v. Brackeen). Australia’s adoption system is then analysed, noting that each state/territory has its own adoption legislation (e.g., Adoption Act 2000 of New South Wales, Adoption Act 1984 of Victoria, etc.) and that adoption is used sparingly, especially for child protection cases, due to historical factors (such as the trauma of the “Stolen Generations” and past forced adoptions). Recent reforms in Australia, including moves to facilitate open adoptions and greater uniformity in inter-country adoption processes, are also discussed. Chapter 4 (Balancing Child Welfare and Parental Rights) delves into the theoretical and legal dilemmas at the heart of the dissertation. It explains the “best interests of the child” principle as the guiding star in adoption (enshrined in laws and international conventions5) and how this principle is applied in different contexts. The rights of biological parents – especially the right to family life and to raise one’s children – are explored, with a discussion of the conditions under which the state can justifiably curtail these rights in order to free a child for adoption (such as in cases of abuse, abandonment, or inability to care). Ethical issues like informed consent to adoption, the possibility of coercion or economic pressure on birth parents, and the child’s right to identity (including whether the child should have the right to know his/her biological origins) are critically examined. The chapter also examines relevant international human rights law: Article 21 of the UN Convention on the Rights of the Child (which specifically addresses adoption, urging that inter-country adoption be considered only when suitable in-country homes are unavailable), the 1993 Hague Convention on Inter-country Adoption (which India has ratified, providing safeguards against abduction and trafficking), and jurisprudence from human rights courts (like the European Court of Human Rights) that seek to strike a balance between child welfare and parental rights in permanency planning. Indian judicial approaches to balancing these interests – for instance, the Supreme Court’s recognition that personal laws cannot impede the operation of a secular adoption statute meant for child welfare6 – are highlighted to show the evolving mind set in Indian courts towards a child-centric approach while still respecting familial rights. Chapter 5 (Recommendations and Conclusion) synthesizes the findings and provides suggestions for law and policy reform. The dissertation identifies gaps and challenges in the current Indian adoption framework, such as the dual system of personal law vs secular law, delays in adoption processing, paucity of adoptable children despite millions of orphans (owing partly to social stigma and procedural bottlenecks), and issues of post-adoption support. Recommendations include: moving towards a uniform adoption code that applies to all Indians (harmonizing HAMA and JJ Act into one comprehensive law to eliminate confusion and inequities7), strengthening oversight to prevent illegal adoptions (treating them on par with trafficking as suggested by law commissions8), ensuring faster but fair procedures (e.g., proper implementation of the DM-led process to avoid delay but safeguard due process), promoting special needs and older-child adoptions with adequate support, and considering incorporation of progressive practices like open adoption or enforceable post-adoption contact in appropriate cases to ease the severance trauma. The chapter also suggests drawing on international best practices – such as the UK’s robust social work and court review system or the US’s emphasis on permanency timelines – while being mindful of India’s socio-cultural context. In conclusion, the dissertation reaffirms that child welfare must remain paramount in any adoption decision, but for that principle to be meaningful, it must be pursued within a legal framework that is just, transparent, and respects the rights of all stakeholders. The delicate balance between giving a child a loving home and respecting the bond of birth family can be achieved through thoughtful laws, sensitively implemented, with the child’s holistic well-being as the lodestar.

Child welfare, parental rights, family law ,adoption,guardianship

"Critical Analysis of Adoption Laws: Balancing Child Welfare and Parental Rights ", International Journal of Emerging Technologies and Innovative Research (www.jetir.org), ISSN:2349-5162, Vol.12, Issue 4, page no.j762-j846, April-2025, Available :http://www.jetir.org/papers/JETIRTHE2197.pdf

"Critical Analysis of Adoption Laws: Balancing Child Welfare and Parental Rights ", International Journal of Emerging Technologies and Innovative Research (www.jetir.org | UGC and issn Approved), ISSN:2349-5162, Vol.12, Issue 4, page no. ppj762-j846, April-2025, Available at : http://www.jetir.org/papers/JETIRTHE2197.pdf