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Introduction
The recent judgment by the Delhi High Court in Debarati Nandee v Union of India & Anr + Connected matters on the adoption of children has sparked debate and introspection. The court ruled that “the right to adopt is not a fundamental right” and upheld regulations restricting couples with two children from adopting “normal” children (without disabilities). This blog delves into the crux of the judgment, its implications, and the ongoing discourse surrounding adoption in India.
UNDERSTANDING THE REGULATION
The Adoption Regulations, 2022, introduced by the Central Adoption Resource Authority (“CARA”), prioritize the adoption of children with special needs or those considered “hard to place.” To achieve this, they restrict couples with two biological or adopted children from adopting “normal” children unless they are relatives or step-children. This prioritization aims to address the often-overlooked reality of children with special needs struggling to find adoptive families.
THE COURT’S REASONING
The court’s decision rested on two key points:
- Focus on Child Welfare: The judgment emphasizes that adoption is primarily about the welfare of the child, not fulfilling parental aspirations. Prioritizing children with special needs, who face greater adoption challenges, aligns with this principle.
- Right to Adopt Versus Choice of Adoptee: The court differentiated between the right to adopt (not deemed a fundamental right) and the choice of a specific adoptee. It clarified that prospective parents cannot demand their chosen child, as the matching process prioritizes compatibility and the child’s best interests.
REACTIONS AND CRITICISMS
While the judgment aims to ensure the well-being of children with special needs, it has also drawn criticism:
- Discrimination Concerns: Some argue the rule discriminates against couples with two children, limiting their family planning choices.
- Retroactive Application: Applying the regulation retrospectively to pending applications has been deemed unfair by some.
- Limited Scope: While prioritizing children with special needs is laudable, critics suggest the definition of “hard to place” children should be broader to include older children or siblings wanting to be adopted together.
BEYOND THE JUDGMENT: MOVING FORWARD
The Delhi HC judgment highlights the complexity of balancing parental aspirations with the child’s best interests in adoption. While recognizing the concerns raised, it’s crucial to consider the larger context:
- Prevalence of Unplaced Children: Thousands of children with special needs languish in institutions due to societal biases and lack of awareness. These regulations aim to address this critical issue.
- Holistic Approach: Focusing solely on the regulations ignores the need for improved support systems for prospective adoptive parents, especially those considering children with special needs.
- Continuous Dialogue: Open discussions and collaborative efforts by CARA, NGOs, adoption agencies, and stakeholders are crucial to evolve a system that prioritizes child welfare while addressing the concerns of all parties involved.
CONCLUSION
The Delhi HC judgment sparked debate, forcing us to confront the realities of adoption in India. While regulations alone cannot solve all challenges, they can be a catalyst for positive change. Recognizing the complexities, fostering open dialogue, and prioritizing child welfare through comprehensive support systems are crucial steps towards creating a more equitable and effective adoption system in India.
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