Dr Bipin Adhikari
Historically, Nepalese community always had a notion of adopting their relative’s son/daughter if they were childless although adopting a child out of their community or relatives was an inconceivable notion. This notion can be closely attributed to religious sentiment that parents would get a safe passage to heaven if their last rites were performed by a son.
Further, the concept of adopting a child within family/community was strengthened by the feeling that their property will devolve within the family. Ultimately, adoption was seen as a pious and a generous gesture. Often, adopting families were greeted with much respect and appreciation within the community. However, there are instances where the adopted children were treated very poorly and the whole adoption charade was a hoax to get a household servant.
In many countries, especially in South-Asian countries, adoptions are done for different reasons, rather than due to the natural feeling and want of a child or children. Then there are own reasons for adopting a boy and a girl. Generally, in these countries, adoptions of boys were more common and preferred than the girls because of some age-old traditions, customs and beliefs. In case of absence of own son, wealthy and rich people often adopted male children as their rightful heir to protect their properties and carry on their family business.
In ancient Rome adoption was classified into two categories: adoption of Roman child (abrogatio) and adoption of a child who is not a Roman (adoptio). This system was misused to propagate child trafficking forcing the government to establish an institute to oversee the whole process of adoption. The practice of adoption was very rare in West, however, the concept was reintroduced in 17th century in France where the law stated that any a person who has attained the age of 28 years can adopt a child and the adopted child would acquire all the rights that of a biological child. Meanwhile, Germany, incorporating adoption laws provided that an eligible German can not only adopt a child but also person who is elder than the person adopting, i.e. they can even adopt parents. On the other hand, Islamic law does not recognize adoption. However, to some extent Pakistan, Jordan and Egypt have provisions regarding adoption.
In terms of Britain, the British law requires the child to live with the adoptive parents for a period of 10 weeks before a competent court could formally decide the fate of the adoption. The British law prohibits adoption of child from Nepal, Haiti Guatemala and Cambodia due to corruption while processing documents. The American laws are very liberal as Americans can adopt as well as be adopted. Around 2 million children are annually adopted by Americans. Due to corruption in documentation and verification of documents, even, America has suspended adoption relationship with Nepal.
International Adoption:
Often, foreigners adopt Nepalese children either with the direct approval of the natural parents or from children’s homes after fulfilling certain legal procedures and formalities, as prescribed. But in the both situations, approval of concerned government authority is a must. As of 2005, there were about 958 adopted Nepalese children believed to be staying with their adoptive parents in different countries. Of these, 425 are boys and 533 are girls. In Italy alone, there are 226 adopted Nepalese children. That number has surely risen in recent years in light of active globalization and liberalization of adoption laws around the world.
Hence, it would not be wrong to say that adoption has gone international and has equally become more complicated and an issue of great concern to all involved in this sector. In case of inter-country adoption, it is no more a matter of concern between just two individuals, two families or two parties, but has rather become a concern of the governments of the countries involved in the process. International adoption is a very sensitive and complicated issue as it not only ties relationship between individuals/families of two countries, but also establishes relationships between the countries involved.
In terms of Nepalese adoption law, the existing provisions in the Muluki Ain have religious sentiment. The provisions of Muluki Ain are slightly liberal in the sense that the Code allows adoption of child not only from relatives but also from other sources and allows foreign national to adopt a child in Nepal. The present Bill attempts to meet the international standards set by Hague Convention on Protection of Children and Co-operation in Respect of Inter-Country Adoption (or Hague Adoption Convention) in 1993. In light of this, we look at some of the suggested amendments to the proposed bill:
Recommendations:
1. Experts have advocated for the establishment of a national wide institute, similar to the one in UK, which would keep record and track of all the cases of adoption, national and international. The institute would register all the children whose parents plan on giving for adoption or children who have been orphaned or abandoned. This streamlining of the process will to some extent solve problem of fake documentation and children trafficking issues.
2. Experts have been highly critical of Section 190 (2) wherein any person guilty of offences involving moral turpitude is ineligible to adopt a child. The term ‘moral turpitude’ is very vaguely and lacks uniform definition. The term sounds good but does not have practical use as very rarely anyone is said to have committed or guilty of offences involving moral turpitude. Instead of using such ambiguous term. It is thus suggested that any person convicted under national law (Penal law) should be ineligible for the adoption process.
3. Under Section 189, the limitation of 90 days for eligibility of children to be put up for adoption should be increased to at least 1 year. This, according to experts would reduce the amount of manipulation of children considerably.
4. As per experts, great discretion must be used in cases of second adoption. Further, provision which states that a person, citizen of state where there is gender inequality, shall not be eligible to adoption should be deleted. This criterion eliminates rich gulf countries such as Bahrain, Kuwait, Saudi Arabia and Qatar. Deletion of such provisions doesn’t mean that a child may be sent to a nation where gross violations of human rights are observed.
5. There should be clarification as to why the age difference between child and adoptive parents has been reduced from 30 years to 25 years.
6. The formation of a board on whose recommendation adoption process will be carried out and monitoring mechanism are laudable steps. However, the criterion illustrated in Section 191(2) needs few more addition such as consensus between biological and adoptive parents regarding adoption of the child, a probation period whether the child can adapt in the new environment and regular visitation/interaction between the child and biological parents at the cost of the adoptive parents.
7. Assisting celebrities in adoption process should be discouraged. Everyone must be treated equally and same criterions must be afforded to everyone irrespective of their celebrity status.
8. Section 202 (8): The provision for appeal on foreign adoption matters should be scrapped in light of the issue being of national interest. Also, the jurisdiction of Nepalese Court to hear matters when the child adopted from Nepal is ill treated or not properly care for even though the Bill empowers Nepalese Courts to do so is questionable at best. The power to hear such matters rest exclusively upon the local courts and inserting provisions which empower Nepalese Courts to hear such matters will merely create confusion.
9. Adoption of provisions wherein the adopting parents will have to bear the responsibility of maintaining relationship with biological parents for example via Skype and also bear the cost of reuniting the child with biological parents.
10. The current Bill only emphasizes on Nepali child being adopted by foreign national and not of a situation where in a Nepali can adopt a child of foreign nation. Experts have questioned the motive behind such oversight and warned that nation should condemn such adoption where the sole motive is to generate income.
11. Under Section 187, 190: The provisions relating to adoption of foreign children residing in Nepal by other foreign nationals need to be clarified. In terms of determination of the foreign children’s familial status, state’s responsibilities towards the children and liabilities need to be accessed before hastily putting forward in a proposed legislation.
12. Section 204: Accountability and Transparency needs to be institutionalized through proper implementation of the monitoring mechanisms by respective embassies and foreign ministry.
On a brighter note, Nepal is the only country in the country in the world where laws regarding adoption are incorporated in country’s civil code. No other country has such provisions in their civil code. In terms of Nepali citizens adopting children from other states, the current bill seems to be silent on the issue. That is because adoption laws of the host country are applicable in such instances.
If a Nepalese person wants to adopt a child from India then Indian laws have to be complied with and making laws for such instances is redundant and beyond Nepalese jurisdiction. Further, the Bill has two committees; one to keep track of all adoption cases and another to recommend adoption after thorough scrutiny of documents and situations. The Bill prescribes a detailed procedure regarding the adoption which as per experts is exhaustive enough to control corruption and child trafficking. As per legal experts, the present Bill is set to meet the international guidelines and is gender sensitive.
Moreover, the reason behind prescribing age of the parents and stipulating age difference between the child and parents is to ensure that the parents are mature and old enough to bear the responsibilities of the child. The past monitoring procedure had failed miserably but a local body of the adoptive parents with the responsibility of monitoring the condition of the child would enhance future monitoring mechanisms. The adoption procedure involves the concerned embassy for monitoring along with the Office of Nepalese for the purpose of monitoring the child’s status. Moreover, if the adoption laws of a state are in contradiction with the law of Nepal then in such situation the child will not be given for adoption.
In reality, the members of constituent assembly are unaware of the provisions of Bill and pass the Bill without really knowing the contents of the Bill. Sometimes, even though there are discussions on the provisions of the Bill, experts have been skeptic about drafting committee implementing the suggestions made by the members.
In light of this, it is suggested that members of parliamentary drafting committee, expert draftsperson and stakeholders be brought together to put forth their respective suggestions. Merely enacting new laws will bear no fruit if the government is weak or cannot implement the provisions. The provisions of the laws should not be confined or limited within the texts in the statute books.
