India becoming progressive as single women applicants to be granted ‘seniority’ for adopting children

By Anushree Jois

In July 2017, the Ministry of Women and Care Department (WCD) decided to give single women, who are financially stable and aged above 40 years, an antedated seniority of six months once they register for the adoption of children. Half a year later, it has been reported that close to 70% of such applicants have benefitted from this move.

Increase in single women applicants

Over the years, the number of single women applicants to adopt children along with those who have successfully adopted has seen a steady increase. Records maintained by Central Adoption Resource Authority (CARA) reflect an upward trend. It showed that in 2015, out of the 412 who registered for adoption, 75 single women adopted children while in 2016, 93 single women did so. On the other hand, only five single men adopted children in 2015 and seven in 2016.

Meanwhile, there were many representations filed before WCD Minister Maneka Gandhi, expressing displeasure over the treatment meted out to single women applicants. Despite the laws in place, there was not much support being extended to single women wanting to adopt children. In order to address this issue and encourage the rising trend in single women applicants, the steering committee of CARA resolved that a six-month seniority could be given. Accordingly, the Ministry decided to put such a practice into effect from July 2017.

Legal support for adoption

There are multiple legislations under which single women can adopt children in India. Under the personal law for Hindus, namely, the Hindu Adoption and Maintenance Act, 1956, a Hindu single woman is eligible to adopt a child. The term Hindu includes Jains, Buddhists and Sikhs. One cannot, however, adopt more than one child of the same sex under the Act. Also, the Act does not apply to non-Hindus. Single women can also choose to adopt under the Guardians and Wards Act, 1890 (GWA). Regardless of the adoption the child will remain a ‘ward’ and will not be considered ‘adopted’. Upon attaining 21 years, the child no longer remains a ‘ward’ and the ‘guardianship’ of the person adopting stands revoked. While a person or a couple belonging to any faith can adopt under the GWA, they cannot become a parent. Moreover, the time period of their guardianship is also limited.

Single mothers versus society

Sometimes legislations are ahead of their times and it takes a while for people to accept and benefit from them. Despite laws enabling adoption of children by single women having been in existence for a long time now, not many applicants had come forward due to societal pressure. Motherhood is often seen as a result of marriage and if it precedes marriage or is sans marriage, the society often frowns upon it. Nevertheless, in the past few decades, the movement has gained momentum. Over the years, women have become financially independent and educated. They have found a voice of their own and in some cases, also assumed the roles of bread-winners. The society is gradually becoming more accepting. Numerous support groups have also mushroomed over the years.

Even when the law made it possible for single women to adopt, several adopting agencies would generally discourage them. When the Juvenile Justice (Care and Protection of Children) Act, 2015 was enforced in 2016, many NGOs were forced to consider the application of single men and women for adoption. The Mission of Charities’ adoption agency outrightly refused to implement the rules of the WCD to process applications of a single parent. When the WCD insisted that the rules be followed, the NGO decided to stop its adoption services citing differences in ideology.

New age law

In Shabnam Hashmi versus Union of India & Others (AIR 2014 SC 1281), the Supreme Court observed that the concept of adoption is not followed under Muslim law. A ward will continue to remain attached to the biological family despite being cared for by the adopted family. To enable adoption by Muslim applicants, the Apex Court ruled that the provisions of the former Juvenile Justice Act, 2000, being a special law on adoption supersedes personal laws. The Act is therefore considered secular, enabling people of all faiths to adopt children.

The former Act of 2000 was thereafter repealed and the new Juvenile Justice (Care and Protection of Children) Act, 2015 was enacted. The new Act enables adoption by couples and single men and women. The Act is supplemented by New Adoption Regulations, 2017 framed by CARA. The law enables online registration of prospective adoptive parents (PAPs) and adoption through CARA, which is the nodal agency of the government for adoption. It is a transparent system. The new Act of 2015 provides for the adoption of orphans, abandoned and surrendered children. While single women can adopt a child of either sex, single men cannot adopt a girl child. The law is also open to non-resident Indians and foreigners seeking to adopt an Indian child.

How beneficial is the move?

There has been a rising trend in applications made by single women for adopting children. In reply to an RTI query, CARA revealed that close to 817 single women had registered with them for adoption and 457 of them were above 40 years of age. There are close to 18,000 prospective parents registered on CARA for adoption, while the available number of children in the adoption pool is 1,800. As there was a huge backlog of applications by single women, the move was seen as beneficial for processing the mounting applications. Further, by granting single women applicants seniority, the government is ensuring that all adoption agencies duly consider their application and not sideline them. Such a move is also needed to make the society more open and accepting towards single mothers.

On the other side, considering the fewer availability of children in the adoption pool, the remaining applicants will now suffer delay. More so in the case of single men, as their options are further limited considering they cannot adopt a girl child. While addressing these concerns, it has been brought to light that the move will be subject to review sometime in March 2018 to understand if its implementation was indeed beneficial and if it was disadvantageous to the remaining applicants.

Initially, single women could become a parent through surrogacy in India. Now, the much debated Surrogacy Bill allows only married couples to have children through surrogacy. It does not permit single people and people in live-in relationships to have a child. In this backdrop, the move of the government to provide seniority to single women over 40 years has garnered much attention. On one hand, the government has disentitled single women from becoming mothers through surrogacy but on the other hand, it is enabling and encouraging them to adopt children.

The way ahead

The subject decision of the government undoubtedly is beneficial to single women applicants. It not only helps in reducing the waiting period by half but also assists in changing the perspectives of the society and adoption agencies. As the move is slated to be reviewed in March 2018, we will have to wait and see the impact it has created.

Parenthood is a choice and the right to become a parent should be available to everyone. The focus has to remain on the well-being and happiness of the child. There is a need to educate people about the benefits of adoption so that the society becomes more accommodating to adoption as well as the idea of single parents. Having said that, we also need stricter laws in place to deal with illegal adoption rampant in the country.

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