Dr Bipin Adhikari
Adoption can be defined as the process whereby people (usually without kids) assume the parenting responsibility of another’s children. In doing so, they permanently transfer all the parenting rights and responsibilities from their biological counterparts.
Historically, adoption has been governed through specific laws in different societies; however, there are states that have regulated the process through less formal means. Modern systems of adoption though, more often than not, tend to be governed by comprehensive statutes and regulations.
In terms of Nepal, the spirit of the constitution of Nepal is depicted into practise by means of specific laws under Chapter 15 (Adoption) of the Muluki Ain. Chapter 15 sets out the specific criteria for eligibility of adopting parents, adoption procedures and monitoring mechanisms. As terms of the adoption rules, infertile couples married for four years or even single women, widow, divorcee are eligible to adopt a child. In terms of age, there should be a gap of at least 35 years between the parents and the adopted children. However, the gap should not exceed beyond 55 years. In terms of the number of children allowed to be adopted, at least one children of each sex is allowed, however, an exception can be made in terms of twins. In case the adopting parents have a child of their own, adoption of another of opposite sex is allowed provided that the adopted child is aged less than the offspring.
In terms of the process, The Ministry of Women, Children and Social Welfare (WCS) is the Nepalese Government office responsible for adoptions in Nepal. Officially, the Ministry has recognized the Nepal Children’s Organization (NCO), also known as Bal Mandir, to process adoptions, although adoptions through other orphanages are possible.
Adoption Procedure:
An application has to be submitted to adopt a Nepali son or a daughter. In case of married couples, the application should also include the infertility report, marriage certificate, family and economic condition statement, health, character certificates, copies of passport and visa and a letter of consent to adopt a Nepali child authorized by the officer of the concerned country.
In the case of unmarried, divorced, windowed single parent, a guarantee letter written by the government of his/her country or the Embassy of his/her country in Nepal has to be submitted confirming that he/she who is taking the child in adoption shall bear the whole responsibility including nourishment and education of the child including the authorized evidence.
Upon the approval of adoption, the child could travel to the country of the adoptive parents. Until the adopted child attains majority, the adoptive parent should inform the concerned orphanage, Royal Nepalese Embassy or Mission located in the concerned country and Ministry of Women Children and Social Welfare of His Majesty’s Government, in writing, on the child’s growth, diet, education and health every year.
The Royal Nepalese Embassy or Mission will also, on the basis of the documents submitted by the adoptive parents and information sent by the Government of Nepal, submit a monitoring report confirming the growth, diet, education and health of the adopted son/daughter, until he/she attains majority, is in accordance with the conditions to the Ministry of Women, Children and Social Welfare.
Criticisms of the Muluki Ain:
Despite formalizing the adoption provisions into the country’s civil code, the proper implementation of fair, transparent and consensus based adoption process has failed to transpire. Till date, adopted children have had to bear injustices created by the legal system and as a result the adoption movement has lost its reputation despite its pious reputation in the past. Nepal, although party to all the conventions and treaties related to human rights, continues the legacy of different contradictory laws. The current legal provisions discriminates an adopted child based on origin and birth, discriminates the right to equality. Further, the current law empowers the adoptive parents who might manipulate with the legal status of that innocent and vulnerable child and provide immunity for treating the child as a commodity to be enslaved and discarded as per their convenience.
In light of this, the amended adoption provisions have been proposed in the Draft Civil Code, 2063 with a view to addressing some of the concerns as well as aligning Nepali legal provisions with the International standards.
Adoption Provisions in the Draft Civil Code, 2063 (Features):
1. The definition has been simplified: “If a person accepts a son or daughter of another person as his/her son or daughter, such a son or daughter shall be deemed to be an adopted son or daughter.”
2. The rights of the adopted children have been prioritised. “No person shall effect adoption contrary to rights and interests of a child.”
3. Eligibility criteria have been put in place under Sec. 170 to effect the adoption of the child.
4. Section 171 puts a restriction on adoption under certain circumstances. For example: (a) One who completes fourteen years of age.
5. Section 173 (2) Adoption of a child whose father and mother are not traced or surviving or a child whose father and mother are surviving but who has been maintained or cared by a person or organization following the solemnization of another marriage either by father or mother may be effected by obtaining consent in writing of the person or organization so maintaining or caring a child.
6. Where adoption was effected by a husband or a wife living separately after obtaining partition in property or by separation of bread and board from other coparceners or judicial separation and the husband and wife live jointly after effecting adoption, the adoption effected before living so jointly shall be deemed to have been effected by both the spouse.
7. Section 175 enables the Court to give order for adoption.
8. Section 176 set that the rights, powers, obligations and responsibility of an adopted child shall be equal to that of the biological son or daughter of the adoptive parents.
9. Section 177 guarantees the right of the adopted children to choose the surname as per their wish. This is in line with the legal right within the Children Act, 2048.
10. Section 179 sets out the obligation of the adopting parents.
11. Section 181 provides that the adoptive parent shall have to provide facility to the adopted child to visit to or make correspondence with his/her biological father, mother from time to time.
12. Finally, Section 185 provides that any person aggrieved by an act carried out pursuant to this Chapter may file a complaint within one year from the date of carrying out of such an act.
Recommendations:
1. The definition can be further solidified by adding the word “legal”: “If a person legally accepts a son or daughter of another person as his/her son or daughter, such a son or daughter shall be deemed to be an adopted son or daughter under law.”
2. Under Section 168: “No person shall effect adoption contrary to rights and interests of a child.” This section should include the specific rights and interest of the children.
3. Section 169 (2): Prohibition on adoption by a person having child: This section should allow divorced parents who don’t have the custody of their own kids to go on and apply for adoption.
4. Section 170: The age limit for adoption should be brought down from forty-five years to thirty five years at the very least.
5. Section 170 (2) : (1), the following person cannot effect adoption:
a)One who is of unsound mind: What qualifies as unsound mind should be coherently expressed within the legislation. Further, the section should also include criteria as child rights offender, child abortion offender, child labor offender etc.
6. Section 175 (2): The court giving order for adoption. Under this section, provisions for appeal should be incorporated.
7. Section 178 (2): Where he/she has already received partition in property at the time of adoption, he/she may receive such property as well. This provision could create complications in the future as far as inheritance is concerned and as such should be avoided altogether.
8. Section 179: Obligation of the Adopter: It should include provisions discouraging discrimination among the biological children and the adopted ones in cases where adopted parents possess both. Further, it should provide safeguard the rights of the adopted child to choose either the religion of their own choice or of that of their adopted parents.
9. Section 181: The adoptive parent shall have to provide facility to the adopted child to visit to or make correspondence with his/her biological father, mother from time to time. This section could be further solidified by adopting the words from Section 9 of Children’s Act, 2048.
10. Section 182: If a person effects adoption in contravention of Section 169, sub-Section (1) and clauses (a) and (b) of sub-Section (2) of Section 170 and Sections 171, 172 and 173, such an adoption shall ipso facto be void. In this instance, the jurisdiction of the courts should be expressed clearly. Also, there should be facilitation for compensation in cases where adoption is declared void.
Conclusion:
The newly proposed Adoption provisions in the Draft Civil Code are commendable for many reasons including being gender neutral. However, there are persisting problems relating to implementation of the specific laws.
As a result, there are a lot of gaping holes that need to be addressed such as child exploitation, human trafficking, and slave trade. Legal experts and child rights activists often claim that Nepali laws are little more than a detailing of procedure and do not protect children from being exploited. The fees charged by brokers and facilitators, and ‘donations’ solicited by orphanages during adoption process are in a grey area: nothing in Nepali adoption law specifically prohibits financial transactions. These activities violate article 21 of the Child Rights Convention, which says that that “states must take all appropriate measures to ensure that, in inter country adoptions, the placement does not result in improper financial gain for those involved in it.” It is not just enough to have extensive legislations on paper but there should be proper implementation mechanisms.
Children are the future of the nation and thus the state should do anything in its power to protect their rights and interests whether it is enacting stringent laws, executive orders or pro-child judicial reviews. The promulgation of adoption in the Draft Civil Code is, however, a step forward in the right direction.
