The Hague Conference on Private International Law has made important contributions in the development and codification of the law. The convention of May 29, 1993 on the Protection of Children and Cooperation in respect of Inter Country Adoption is a significant achievement. This convention, which came into force from 1st May 1995, has recognized that for the full and harmonious development of its personality, the child should grow up in a family environment in an atmosphere of happiness, love and understanding. As of Dec 15, 2011, 85 countries have become contracting states to the convention. Nepal signed the convention on April 28, 2009 but it is yet to be ratified by the parliament.
There are two types of provisions on adoption in Nepal: In-country and inter- country. In-country adoption is an old practice prevailing in Nepali society, mainly due to religious reasons. As per the Registration of the Country Code, commonly known as Muluki Ain, a deed of adoption should be registered in the Land Revenue Office.
Being a member of the international community, inter-country adoption (ICA) in Nepal was initiated as an international phenomenon. As a result, an amendment was made in the Muluki Ain. The relevant article reads, ‘if any foreign nationals are willing to adopt a Nepali child eligible to be adopted under the Code, the government of Nepal assessing the economic status and moral character of such foreign nationals may grant permission of adoption specifying appropriate conditions provided such foreign nationals have recommendation of the government or embassy of their Nation.”
In exercise of the power conferred by Muluki Ain, the government made the terms and conditions and process for Granting Approval for Adoption of Nepali Child by a foreign national ( T&C), on July 26, 2000. This T&C got replaced by the present T&C on May 19, 2008. The present T&C has undergone amendments, first in 2010 and the second in 2011.
Muluki Ain provides that in giving permission to a foreign national for adoption, the government of Nepal shall give permission to the foreign national to adopt only if the laws of the country of the foreign national provide for the rights of the adopted sons or daughters on equal footing with those of natural children. This provision should be mentioned in the guarantee letter to be issued by the country concerned.
Two types of children are eligible for adoption—the orphan child and the voluntarily committed child (VCC). The orphan child is defined as—a foundling child found by the police; a foundling child found in the hospital; whose father and mother are not traced or; whose father and mother are both dead; any member, relative or heir is not traced and who does not have any property.
VCC means a child who is surrendered to the custody of a child welfare home, orphanage or children’s organization (Bal Mandir), by the following by executing a deed of consent: By the concerned guardian in the case of a child whose guardian has been appointed pursuant to Children’s Act, 1992 and who does not own any property; by the mother of a child whose father is dead and who has been abandoned by his/her mother after contracting another marriage; by the parents of a child whose father and mother are poor, have given birth to more than one child, can maintain them and any of them has already carried out permanent sterilization of family planning; by the mother in the case of those children who are born more than one in number and whose father is dead or is medically insane or mentally unsound and who have a poor mother unable to maintain them and finally, the father of a child whose mother (with more than one child) is dead or medically insane or mentally unsound and whose father, being poor, is unable to maintain them.
It is the right of every child to have a family. For this, the ICA might be a good opportunity for the government if it develops a legal instrument and process which ensures transparency, accountability and responsibility. The existing T & C has been helpful in channelizing the adoption process in a transparent way but is still not free from lacunae.
The prospective parents make contact directly with the orphanage and start keeping the child with them before the process starts. This gives rise to the development of attachment between them. If for some reason the process fails, it may create psychologically adverse impacts upon children and parents as well as some sort of frustration for both. Any illegal financial and other gain needs to be strictly prohibited in the processing as well as in matching of the child to the prospective parents.
Existing monitoring and feedback mechanisms are not very effective. The monitoring role given to the embassy is not being discharged properly due to the shortage of human resources. Moreover, embassies are already overloaded by their regular duties.
It is the right of every child to have a family. Inter-country adoption could be a way to attaining one.
We do not have a proper database, the prerequisite of the process, regarding the adoption process, its implication and rights of children in the receiving countries. Many orphanages lack the minimum infrastructure. They are not able to provide education, health, facilities and entertainment for children. We need to have concrete mechanisms to monitor these orphanages. In the past, it was reported that some of these operators were involved in sexually abusing children.
There is an urgent need to develop legal instruments in tune with the convention of Protection of Children and Cooperation in respect of inter-country adoption, 1993. Such a legal instrument should make the ICA process specific, transparent, objective and impartial. An independent agency should be put in place with enough legal muscles.
Every child has a right to have a family. It is the responsibility of the government to manage such a family within the country. If it is not possible to find a suitable family due to shortage of resources or other reasons within the country, inter-country adoption is the best option if transparent, objective, and impartial polices and legal instruments are developed.
The author is an appellate court judge
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