Fair Adoption Rules
Right To Adopt Children Is Not A Fundamental Right: Delhi HC
It is really good to learn that the Delhi High Court in a most learned, laudable, landmark and latest judgment titled Debarti Nandee vs Ms Tripti Gurha & Anr (Connected matters) in CONT.CAS(C) 563/2023 and cited in Neutral Citation No.: NC:2024:DHC:1287 that was pronounced as recently as on February 16, 2024 has while upholding the alterations that were made to the Adoption Rules under the Juvenile Justice (Care and Protection of Children) Act, 2015 clarifying that the right to adopt children is not a fundamental right. It must be seen that the Single Judge Bench comprising of Hon’ble Mr Justice Subramonium Prasad clearly noted that, “The right to adopt cannot be raised to the status of a fundamental right within Article 21 nor can be raised to a level granting PAPs (prospective adoptive parents) the right to demand their choice of who to adopt. The adoption process in entirety operates on the premise of welfare of children and therefore the rights flowing within the adoption framework does not place the rights of the PAPs at the forefront.” We must note that the Delhi High Court addressed petitions from prospective parents who were seeking to adopt a third child despite having two biological children. We thus see that the Delhi High Court dismissed the writ petitions along with any pending applications.
At the very outset, this notable judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Subramonium Prasad of Delhi High Court sets the ball in motion by first and foremost putting forth in para 1 that, “The challenge in the present Writ Petitions is to adjudicate on the short issue as to whether the decision of the Steering Committee Resource Authority, Central Adoption Resource Authority, dated 15th February 2023 and a subsequent Office Memorandum dated 21st March 2023 affirming the decision of retrospective application of the Adoption Regulations, 2022, to pending applications of registered prospective adoptive parents is valid.”
To put things in perspective, the Bench envisages in para 2 while elaborating on facts of the case that, “The facts leading up to the passage of the impugned order and the Petitioners’ objection to it thereof are as follows:
(a) The Petitioners are Prospective Adoptive Parents (henceforth, “PAPs”) with two biological children and wish to adopt a third child under the procedure for adoption by Indian Prospective Parents living in India under Section 58 of the Juvenile Justice (Care and Protection of Children) Act, 2015, (hereinafter referred to as ‘the Act’). They have applied for adoption through the Central Adoption Resource Authority (henceforth, CARA) under Regulation 5(8) of the 2017 Adoption Regulations. They have been registered as Prospective Adoptive Parents under CARA having fulfilled the eligibility requirements under Section 57 of the Act and have also been allotted their respective registration numbers along with being placed on the waiting list of Seniority for adoption as maintained differently for different States in the country. Moreover, under section 58(2) of the Act, Home Study reports have also been prepared by Specialised Adoption Agencies for a few Petitioners, who have been found eligible to adopt and are in the stage of being referred a child declared legally free for adoption, termed as the ‘online referral of a child’ to the PAPs who may be reserved by them for adoption.
(b) The Respondent No. 1 is the Ministry of Women and Child Development which is responsible for framing regulations relating to adoption. Respondent No 2 is the Central Adoption Resource Authority which is responsible for the implementation of the regulations framed by Respondent No. 1.
(c) That the Adoption Rules, 2022 was notified by the Ministry of Women and Child Development and came into force on 23.09.22 in suppression of the Adoption Regulations, 2017. As per Regulation 5(8) of the prior Adoption Regulations, 2017, Couples with three or more children were not eligible to be considered for adoption except in cases of special needs children, hard-to-place children or relative adoption by stepparents. The Petitioners in the present petition are all parents having applied for adoption under the eligibility criterion of Regulation 5(8) of the 2017 Regulations. However, the same was superseded by the Adoption Rules, 2022 which brought about a new position under Regulation 5(7) wherein, instead of three or more children, now couples with two or more children willing to adopt can only opt for the adoption of special needs children or hard-to-place children unless they are relatives or step-children.
(d) That on 15.02.2023, the 34th Meeting of the Steering Committee Meeting of CARA was held wherein, in respect of ‘Agenda No. 34.06: Decision regarding ineligibility of PAPs to adopt normal child in case they already have two children’, it was decided that the Adoption Rules would be applied retrospectively as an eligibility criterion even to those applications received and for registrations which were carried out prior to the passage of the Adoption Rules, 2022. It is to note that observations in the minutes of the meeting indicate CARA’s recommendation against the retrospective application of 2022 Regulations which would affect persons already awaiting their child referral under as per the terms of the 2017 Regulations. In furtherance of the decision dated 15.02.23, on 21.03.23, an Office Memorandum was issued by Respondent No 2 affirming the decision taken on 15.02.23, thereby implying that all prospective parents with two children, regardless of their date of registration, will not be eligible to adopt a normal child in terms of the Adoption Regulations, 2022 and can only opt for the adoption of a child of special needs, a hard-to-place child or a relatives’ child and step-children.
(e) That even after the passage of the impugned orders, it is stated that CARA continued its communication with the Petitioners for revalidating the Home Study report and payment of charges for the same. Moreover, the status of the Petitioners was updated on the ‘CARINGS’ portal, an initiative operationalised as a portal to streamline the functioning of CARA via notification dated 21.03.23, as ‘Home Study Completed and validated’. It is also stated that the Petitioner’s seniority list as per the CARINGS portal was deleted and subsequently restored.”
Most significantly, the Bench mandates in para 42 propounding that, “Therefore, it is settled that the right to adopt cannot be raised to the status of a fundamental right within Article 21 nor can it be raised to a level granting PAPs the right to demand their choice of who to adopt. The adoption process in entirety operates on the premise of welfare of children and therefore the rights flowing within the adoption framework does not place the rights of the PAPs at the forefront. There can be no expectation at the pre-referral stage towards the adoption of a normal child, in the absence of any vested rights of legislative assurance towards consideration for the same.”
Be it noted, the Bench notes in para 43 that, “It is settled law that ‘legitimate expectations’ flow from the accrual of rights which follows consistent past practices. However, as elucidated above, since subsequent to the stage at which the Petitioners are present, there may be multiple eventualities which may revoke their considerations towards adoption till the passage of the District Magistrate’s order under Section 58(3) read with Section 61 of the Act, such a consistent past practice which causes the accrual of a right cannot be made out here.”
Briefly stated, the Bench states in para 44 that, “Moreover, the contention raised by the learned Counsel for the Petitioners that the level of seniority in the various state seniority lists maintained under CARA as accessible via the CARINGS portal enjoyed by the Petitioner PAPs will be lost is not of relevance in the present case.”
It is worth noting that the Bench notes in para 49 that, “This Court can take judicial notice of the fact that there are a number of childless couples and parents with one child, who are interested in adopting one more child, will adopt a normal child, whereas the chances of a specially-abled child being adopted is remote. This Policy has been brought in only to ensure that more and more children with special needs get adopted. That being the intention of the Policy, the decision taken by Respondent No.2 to make it applicable for pending applications cannot be said to be arbitrary.”
Do note, the Bench notes in para 50 that, “Keeping in view the holistic backdrop within which Adoption Regulations 2022 were introduced, and its operational effect thereof, this court is of the opinion that Regulation 5(7) under question is procedural in nature retroactively. It is also concluded that at the pre-referral stage of adoption, no vested right towards the adoption of a normal child has accrued to the Petitioners retroactive.”
Finally, the Bench concludes by holding and directing in para 51 that, “This Court is not inclined to entertain the present writ petitions. Resultantly, the writ petitions are dismissed along with pending application(s), if any.”
All in all, we thus see that the Delhi High Court very rightly upholds the bar on adoption by such parents after having their own two children. It has also been made indubitably clear by the Delhi High Court that the right to adoption is not a fundamental right. Very rightly so!
