Children put up for adoption should have birth certificate -- HC

Children put up for adoption should have birth certificate -- HC
ARUNA CHAKRAV

MUMBAI, JULY 18: In what is being cited as an impediment to the adoption movement in the state, the Bombay High Court in March 2000 ruled that all abandoned children put up for adoption should have a birth certificate, and such certificates should be attached to petitions seeking adoption of the child.

The directions having far-reaching effects in the cause for adoption were passed by Justice H L Gokhale in a petition of a foreigner, Finn Jessen seeking to adopt an Indian child.

In his first order on March 29, Justice Gokhale observed there was no birth certificate attached to the petition. ``It is true these caring institutions have a number of difficulties, but every birth has got to be registered under the Registration of Births and Deaths Act'', he held.

Persons in these institutions point out that while such registrations are compulsory under the Act, it is practically impossible to get birth certificates of such children because most mothers who relinquish their children, want to erase the stigma of unwed motherhood and do not have their names recorded in any birth certificate.

The order also observed that declarations given by biological mothers giving the child to an institution for adoption, are not given before any public authority, like a magistrate or a notary. The court held it was ``desirable that these declarations ought to be made before some public authorities which have the powers to give oath.''

Legal sources point out that the court's observations, when followed in strict accordance could have disastrous consequences. In Amravati recently, a woman when told to make such a declaration before a magistrate went away claiming she would return, but dumped the child in a toilet instead. ``In most cases the child is something to be rid of and nobody would want to make any declaration before any authority about it,'' said a lawyer.

What was happening till now is that those children who are abandoned or relinquished by their mothers to such institutions would sign a declaration before a reliable person of the institution. Lawyers argue the HC order is contrary to a Supreme Court judgement which said these persons of the institution should be in a position to depose on oath before a judge.

``These institutions promised confidentiality of the mother and it was easier for the women to approach them,'' said one of the women active in the movement, ``and then these are institutions licensed by the state and have a responsibility. They should be trusted.''

While the insistence on declarations before a notary or a magistrate was after the April order, the order on compulsory birth certificates is to be with retrospective effect. As a consequence, members of such institutions are now going back to the nursing homes or hospitals - wherever possible - trying to get at least a discharge certificate for the child, if not a birth certificate.

Lawyers feel this direction too is against the apex court judgements where it has made it clear that a birth certificate is to be made for such children only after the court directs their adoption. The reasoning being, no child can have two birth certificates.

While adoptive parents in some parts of the country run around the bend trying to get a birth certificate for their adopted child, in Mumbai, the city civil courts would issue a birth certificate with the names of adoptive parents. This high court direction, though changes this facet as well.

In the same case, in a further hearing in April, the court also ruled that in case of foreign adoptions, if there is a time period of over eight months between a VCA (Voluntary Coordinating Agency) clearance for the child and the court order on the adoption, the VCA should once again try to find Indian parents for the child so as to ``give a chance to the child to remain in India with Indian parents''.

Activists in the movement lament that the orders do not consider the case of the child or adoptive families sympathetically and are in fact a setback to the movement.

Justice Gokhale, though, passed the `eight month limit' after the VCA informed the court that 85 per cent of cases are cleared by the high court within eight months of getting the nod from the VCA. ``In cases where time taken is more than eight months, there would be a back reference to VCA'', the court has held. The VCA is to report back within two weeks on the second reference.

Asks an activist, ``When a foreign couple has been given a VCA clearance for adopting a child, the child goes into foster care with an Indian family. By the time the HC order is passed, emotional bonds between foreign parents and the child are already developed. How can the child then be taken away and once again be put up for Indian adoption?''

In any case, she points out, the VCA clearance is given only after it is established there is no Indian family for the child.