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Legal Information

LEGAL INFORMATION

LAWS ON ADOPTION

Who is allowed to adopt a child?

In India, an Indian, Non Resident Indian (NRI), or a foreign citizen may adopt a child. There are specific guidelines and documentation for each group of prospective adoptive parents. A single female or a married couple can adopt a child. In India, a single male is usually not eligible to be an adoptive parent. An exception to this rule is the noted dance instructor Sandip Soparrkar, who has recently adopted a young boy. This is a special case rather than the norm. A single man desiring to adopt a child may be eligible if he applies through a registered agency. However, he will still only be able to adopt a male child.

What are the conditions to be fulfilled by an adoptive parent?

An adoptive parent should be medically fit and financially able to care for a child. A person wishing to adopt a child must be at least 21 years old. There is no legal upper age limit for parents but most adoptive agencies set their own benchmarks with regard to age. For a child who is less than a year old, the adoptive parents can have a maximum combined age of 90 years. Also, neither parent must be older than 45 years. In the case of adoption of older children, the age of the parents may be relaxed accordingly. For example, for a one-year-old child, the age limit is 46 years, for a two-year-old child, it is 47 years and so on. The upper age limit for an adopted child is 12 years while for an adoptive parent it is 55 years. In the case of an adopted child with special needs, the age limit may be relaxed marginally by the state government, depending on the evaluation of the case. However, in all cases, the age of the parent cannot exceed 55 years.

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    What are the laws governing adoption?

    Indian citizens who are Hindus, Jains, Sikhs, or Buddhists are allowed to formally adopt a child. The adoption is under the Hindu Adoption and Maintenance Act of 1956. Under this act, a single parent or married couple are not permitted to adopt more than one child of the same sex. Foreign citizens, NRIs, and those Indian nationals who are Muslims, Parsis, Christians or Jews are subject to the Guardian and Wards Act of 1890. Under this act, the adoptive parent is only the guardian of the child until she reaches 18 years of age.

    Foreign citizens and NRIs are supposed to formally adopt their child according to the adoption laws and procedures in the country of their residence. This must be carried out within two years of the individual becoming a child's guardian. There is also a Juvenile Justice Act of 2000, a part of which deals with adoption of children by non-Hindu parents. However, this act is applicable only to children who have been abandoned or abused and not to those children who have been voluntarily put up for adoption.

    Can a parent ask for a specific child?

    An adoptive parent is allowed to ask for a child, as per her preferences. For example a parent may ask for a child of a certain age, gender (if it is the first child in the family), skin colour, religion, special features, health condition, etc. However, greater the specifications, more difficult it is to find a child who conforms to them. This restricts the pool of children available for adoption. Depending on the adoptive parent's desired details, children are scrutinised to find a suitable match. When a child with the desired characteristics is found, she is shown to the prospective parents. In case the parents are unhappy with the selection, about two more children with the same characteristics may be presented to the parents.

    The entire adoption process takes some months to complete. However, when all the hurdles are cleared, you are ready to welcome your new child to the family.

    Pros of Domestic Adoption

    The situation where the biological mother of the child, the child and the adoptive parents all reside in the same country, the adoption procedure is termed domestic.

    Cost effective – The costs of traveling and associated paper work are considerably reduced. On certain occasions, they may not even exist if the procedure is initiated and completed through foster care.

    A newborn can be adopted - Often adoptive parents are keen to adopt a newborn so that they can experience the entire episode of raising a new life. In domestic adoption, the chances of this wish fulfillment become easier.

    Medical information is easily obtained - The medical and other associative details of the biological parents of the child are more accurate when obtained first-hand and readily verifiable.

    Hassles are less - The adoption agency does the major part of the leg work through their representatives for traveling, gathering information, filing of details that are often obtained from various sources.

    Cons

    Very strict rules - Domestic adoptions adhere to stringent guidelines and the eligibility of the adoptive families is scrutinized very strictly.

    Deal with sudden change of mind of the mother - The biological mother of the unborn child may suddenly change her decision to hand over her child. Although there are legal restrictions, but the hopeful adoptive parents are often faced with these swinging decisions.

    Delay or termination of the adoption - These changes in moods or decisions, may lead to unprecedented delay and even termination of the adoption process. Most often it is observed that such situations arise right at the final stages of the adoption.

    Availability might be limited - It may so happen that fewer children are available for adoption and adoptive parents may not inclined to adopt a child from the (any) minority group.

    Given Below are the Specific Requirements

    Individuals or couples who are interested to adopt in India are required to first register themselves with the adoption coordinating agency or the state adoption cell. This is the very first job that they are required to do.

    A social worker of the respective agency would be then entrusted with the duty to make a detailed home study report of the prospective parents who have registered. When this home study report is underway, counseling sessions are conducted with the would-be adoptive parents in order to clear off all the fears or apprehensions that they might have in their minds regarding the process of adoption.

    The most important point of this exercise is to assess the condition and status of the adoptive parents so that there does not remain any doubt regarding their eligibility to adopt a human life. It is important to determine and be convinced that the adoptive parents would be caring and committed to the welfare of a child who is not biologically related to them. All the details in this regard are mentioned in the report that is prepared under the knowledge of the concerned official.

    After this, the respective agency will recommend children who are suitable to the conditions of the couple and who are eligible to be legally adopted. If no such child is available, the couple is referred back to the ACA or the adoption coordinating agency.

    Once the home study is accepted and approved, the child is allowed to meet the prospective parents. If the child is above six years of age, his consent is sought.

    After the matching is complete, a petition is filed in the court so that the adoption decree can be issued under the relevant act. After this a series of counseling sessions are carried out in order to help the child and the parents adjust to each others company.

    List of Documents for Adoption Process

    The list of documents required for Adoption process is below. You can download the formats and templates from the list of attachments below

    1. Completed Application form

    2. Completed Medical certificate (Original) for both parents

    3. Completed Questionnaire by both parents

    4. Copy of Birth Certificate / School leaving Certificate / Election identity / Passports to establish the identity of both parents.

    5. Copy of Marriage certificate.

    6. Original Reference Letters from 2 friends and 1 relative vouching for suitability of the family to adopt a child and how long have they known the family

    7. Original Recent HIV test (Eliza) reports for both parents

    8. If applicable, a report from gynecologist indicating for how many days the couple is taking fertility treatment (Original)

    9. Income documents

    Copy of recent payslip and income tax return certificates (If employed)

    Copy of Income tax returns documents and ( if self employed or in business)

    10. Copies of Bank statement, Investments, Insurance policies, and property documents to show financial stability

    11. Copies of Municipal tax receipts / electricity bills / Ration Card to provide proof of address

    12. 4 Colored full size post card photographs(parents together) and 10 passport size photograph (Individual)of the adoptive parents.

    13. An undertaking affidavit from the nearest younger relative of adoptive parents to take care of the child in case of any mishap to adoptive parents

    14. A Police verfication certificate to confirm that there are no criminal records against the adoptive parents (Original).

    Process of Adoption

    Stage I - Application

    Prospective adoptive parent(s) should register themselves with state adoption cell or Adoption Coordinating Agency.

    Get all the information that you need to make up your mind, clarify your doubts and then register with one agency. Please do not register with several agencies in the hope of getting a "better" choice or a faster placements. All adoption agencies have a networking system to co-ordinate with each other to locate a suitable child for you.

    Prepare the documents that you need to complete as part of the formalities in the process of adoption.

    To register with Snehankur Adoption center, please fill this form or contact snehankur@snehalaya.org.

    Stage II - Documentation and Home Study

    A home study will be conducted by the social worker of the Agency. To allay the fears and apprehensions of the prospective adoptive parent(s), pre-adoptive counseling sessions will be provided as required. This study is conducted to assess the ability of a couple to parent a child, not born to them. Documents relating to financial and health status of the prospective parent(s) will be part of the Home Study Report. Prospective adoptive parents should create and complete the necessary documentation as per this list below. Home Visit is also intended for per -adoption counselling. Use the meetings with the social worker to clarify all your apprehensions and to freely discuss your expectations.

    Stage III - Identification of the adoptive child

    After a Home Study has been accepted and approved, a suitable child admitted and legally free for adoption will be identified for the parent(s). This seems to be the most difficult part of the process, because once you have made a decision to adopt, you would like it to be completed as early as possible. This may take even upto six months, depending on the availability of children. It would be an appropriate analogy to draw here, that just as nature has provided time between conception and the birth of a baby, so does the adoption process includes this period of waiting to allow a couple to get emotionally prepared for parenthood. The agency will take care to match a child meeting the description, if any, desired by the parent(s). In case of placement of older children (above the age of 6), both written and verbal consent of the child will be obtained.

    Stage IV - Foster Care

    Once a successful matching has been, the social worker will arrange for you to see the child that has been identified for you. This is the moment you have been waiting for with mixed feelings of excitement and anxiety. Adoptive parents can get an independent medical report about the child before acceptance. It is important to get a complete medical re-examination done with a doctor of your choice to reassure yourself of the child's health. The social worker will help you file all the relevant papers in court before you can take the child home in pre-adoptive foster care.

    The foster care agreement will be signed between the adoptive parents and Snehankur. Snehankur and the parents will together file a petition in the Court/JJB for obtaining the necessary orders under the relevant Act. Till the court hearing is completed and orders are issued, the child will be under foster care with the parents, with the agency still being the legal guardian of the child

    Stage V - Adoption Deed

    The social worker will assist you with all legal formalities and you may be required to attend court for a hearing. Once the court completes all the hearings, the court will issue an order, approving the adoption of the child by the family.

    The court order will be registered to complete the adoption process .

    In cities like Ahmednagar there is no family court to hear adoption cases. Hence it could take upto an year to get the court order. We realize this causes a few inconveniences like having to wait for a passport for the child. But the institution has limited means to expedite matters.

    Documents related to the adoption will include the court decree of Adoption deed and the child's birth affidavit.With these documents, adoptive parents will be legal guardians of the child

    Stage VI - Follow up visits

    Once the adoption process is completed, Snehankur conducts follow-up visits and post adoption counseling by the social worker till the child is adjusted in the new environment. The follow up could be upto one year or as directed by the Court/JJB. Copies of the follow-up reports will be sent to the District Social Welfare Officer/concerned State Government Department, concerned Scrutiny Agency and the Court/JJB from where the order was obtained.

    Process as explained on another website

    Lot of information is available about the adoption procedure. However, some information may be misleading and confusing. Read on to understand a perfect and step by step process of adoption.

    Adoption till a few years back was a word/act which was a taboo in our society. Most of the couples could hardly talk among their friends or relatives about Adoption. And they knew that it would make people in the society raise their eyebrows.

    However, times have changed to quite an extent. Discussing adoption or planning to have a child through Adoption is not so much of a taboo any more as it used to be.

    But at the same time we find that there is a lot of information available regarding adoption. Some information helps in the adoption process however; some information is unwanted and just confuses the couple. This situation is worse for people who get this information from word of mouth. I am sure most of us have gone through the stories like oh! My aunt’s son’s friend’s sister has an adopted child and she had a difficult time in adopting a child!! I call it the via-via information which does not help at all.

    We have tried to list down the adoption procedure for the couples who are interested in getting the information on Adoption.

    I start from steps which the couple should start taking once they have decided to Adopt.

    Step 1 (Visit to the Adoption Agency)

    Visit your nearest Adoption Agency. The Central & State Governments have recognized adoption agencies in most of the states. A list or adoption agencies is available on our site. The couple can also visit Adoption Coordinating Agency (ACA) in their area.

    The social worker of the agency will talk to you in general about the process, documentations, legalities etc; and access your general preparation regarding Adoption.

    You may ask all your questions and queries to the social worker about adoption before you begin with the actual procedures.

    STEP 2 (Documentation & Registration)

    Prepare the documentation as advised by the social worker

    For your convenience we have listed the general paper work required for the adoption process. We although do advice that the documentation should be done only after consultation with the agency social worker of the area.

    Once the documentation is ready submit the same to the agency and get registered.

    Most of the agencies follow single registration norm (you can only register with one agency).

    Step 3 (Home Study & Counseling)

    The social worker of the agency will then conduct a Home Study at the couple’s residence. Some agencies do ask the family to come for additional counseling sessions. Agencies also need to understand the complete preparation of the couple about the Pre-Adoption and Post-Adoption issues.

    The social worker will try to assess the couple’s parenting abilities. The social worker will look into applicant’s motivations, preparations, strengths and weaknesses on the issue of Adoption.

    The couples should use this opportunity to discuss their plan in detail with the social worker. The couple should understand/clarify any doubts they may have before seeing the child.

    This step is formulated into a report and is submitted to the honorable court.

    Step 4 (Referral of the child)

    As and when there is a child the agency will call the couple to the agency. The agency will show medical file, Physical Examination Report and other relevant information of the child.

    Once the couple is comfortable about the details given about the child, the agency will show the child physically. The couple can spend time with the child. Once they are comfortable enough to make a discussion they can discuss the future formalities as the rules of the agency.

    Step 5 (Acceptance of the child)

    Once you have identified the child, you have to sign few documents which pertain to the acceptance of the child.

    Step 6 (Filing of Petition)

    The documentation which the couple had submitted to the agency at the earlier step and the child’s documents are sent to the lawyer for preparation of the petition. Once the petition is ready the couple will be called at the court and sign the same in presence of the court officer.

    Step 7 (Pre Adoption Foster care)

    Once the couple has signed the petition they can take the child in Pre-Adoption foster care.

    When you take the child home do understand from the agency nursing staff that what are the feeding schedules of the child, eating, playing, sleeping, medicines (if any) & potty habits.

    Step 8 (Court hearing)

    You have to attend the court hearing along with the child. This is in front of a judge (generally it’s in chamber and not an open court). The judge may ask you simple questions.

    Once the judge is satisfied, he will pass the order and will also mention the amount you need to invest in the child’s name.

    Step 9 (Court order)

    Once you have invested the amount and the receipt is shown to the judge the order will be issued.

    If the adoption is under HAMA, then a Deed of Adoption is prepared and the same needs to be registered with the local registrar’s office.

    There is no such requirement in adoptions done under GWA & J. J. Acts.

    Step 10 (Follow up)

    After the final adoption the agency needs to submit follow up reports to the court about the child’s well being. This can be for 1-2 yrs.

    Here is a list of the documentation which is generally required by the Adoption Agency for registration of the couple. The listed documents are for information purpose only, actual formats or requirements may differ.

    Documents to be prepared for adoption

    • Application for Adoption

    • 4 x 6 size photographs - 4 copies (Husband & Wife together)

    • Marriage certificate.

    • Proofs of age

    • Medical certificate from M.B.B.S. doctor / Some agencies give their own format

    • Reason for Adoption (Gynecologist certificate or Motivation letter)

    • Latest HIV and Hep. B reports of both Husband and wife.

    • Income certificate – Salary Slip / Tax Returns

    • Bank Letter

    • Proof of Residence

    • Investment Details

    • Reference letters from 3 people

    • Undertaking from the relative.

    Source

LAWS ON ABORTION

Legal Status

As per India’s abortion laws only qualified doctors, under stipulated conditions, can perform abortion on a woman in an approved clinic or hospital. The Indian abortion laws fall under the Medical Termination of Pregnancy (MTP) Act, which was enacted by the Indian Parliament in the year 1971. The MTP Act came into effect from April 1, 1972 and was once amended in 1975. The Medical Termination of Pregnancy (MTP) Act of India clearly states the conditions under which a pregnancy can be ended or aborted, the persons who are qualified to conduct the abortion and the place of implementation.

In the following table Number of abortions reported includes legal reported induced abortions :-

Year

1972

1975

1980

1985

1990

1995

2000

Number of abortion reported

24300

214197

388405

583704

581215

570914

723142

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    TIME LIMEIT WHEN ABORTION MUST BE PERFORMED

    A pregnancy when carried to term may stretch to about forty weeks. The Medical Termination of Pregnancy Act, 1971 permits abortion to be performed only when the pregnancy poses a risk to the life of the pregnant woman, or, of grave injury to her physical or mental health, or, when there is a substantial risk of the child being born with physical or mental abnormalities so as to be seriously handicapped.

    A registered medical practitioner may terminate the pregnancy up to twelve weeks of gestation but where the period is between twelve to twenty weeks, the opinion of two registered medical practitioners is required. The limit of twenty weeks may be crossed only when the procedure is performed to save the life of the woman. Importantly, pregnancy that results from rape or failure of a contraceptive device between a married couple is viewed as causing grave injury to the mental health of the woman.

    Grounds for Abortion as per the Indian MTP Act

    The Medical Termination of Pregnancy (MTP) Act of India clearly mentions the conditions under which only a pregnancy can be ended or the foetus aborted, the persons who are qualified to conduct the abortion and the place of implementation. The grounds, thus, for conducting an abortion as interpreted from the Indian MTP Act are:

    1. A pregnancy may be terminated by a registered medical practitioner,-

    (a) where the length of the pregnancy does not exceed twelve weeks if such medical practitioner is Of opinion, formed in good faith, that,-

    • the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health ; or

    • there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped

    However, when the pregnancy exceeds 12 weeks but is below 20 weeks, the consultation of two registered medical practitioners is required.

    2. A pregnancy occurring as a result of rape

    3. Failure of contraceptive device used by a couple.

    Consent of the following kinds is required before a legal abortion by an approved practitioner can be conducted on a pregnant female:

    • If married--- her own written consent. Husband’s consent not needed.

    • If unmarried and above 18years ---her own written consent.

    • If below 18 years ---written consent of her guardian.

    • If mentally unstable --- written consent of her guardian.

    SOURCE

    http://en.wikipedia.org/wiki/Abortion_in_India

    http://blogs.expressindia.com/showblogdetails.php?contentid=394265

    http://lifestyle.iloveindia.com/lounge/abortion-laws-in-india-240.html

    www.snehalaya.org

    www.indiaparenting.com

    www.indiachildren.com

    www.snehalaya.org

LAWS ON SEX DETECTION

Executive Summary

Two laws that prohibit the sex selection of a fetus in India are the Medical Termination of Pregnancy Act, 1971 (MTP), as amended in 2002, and the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (PNDT), as amended in 2002. The former Act prohibits abortion except only in certain qualified situations, while the latter prohibits the sex selection of a fetus with a view towards aborting it.

Is the ( Preconception and Prenatal Diagnostic Techniques Act) PCPNDT Act in conflict with (Medical Termination of Pregnancy Act) MTP Act?

In one sense it is. Foeticide is defined as the act of killing the fetus–indeed, it is the first step in abortion. Hence, it is fallacious to distinguish foeticide from abortion as long as it is performed with the express approval of the mother. Unfortunately, this is the fallacy which marks the arguments of women activists who uphold the right to abortion while decrying the practice of female ”foeticide”.

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    The Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994.

    The Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 was enacted and brought into operation from January 1, 1996. Primarily, the Act prohibits determination and disclosure of the sex of foetus.

    Key Definition:

    An Act to provide for the regulation of the use of pre-natal diagnostic techniques for the purpose of detecting genetic or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex linked disorders and for the prevention of the misuse of such techniques for the purpose of pre-natal sex determination leading to female foeticide; and, for matters connected there with or incidental thereto

    [20th September, 1994: Act No. 57 of 1994]

    The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994

    The Pre-Natal Diagnostic Techniques Act was amended in 2003 to empower the above further in light of the new fertility technologies, which facilitate the selection of the sex of the foetus before conception. The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act and Rules 1994 (as amended up to 2002) (the PCPNDT Act) mandates that sex selection by any person, by any means, before or after conception, is prohibited.

    Key Highlights:

    • The law chiefly provides for the following:

    • Prohibition of sex selection, before and after conception

    • Regulation of prenatal diagnostic techniques (e.g. amniocentesis and ultrasonography) for detection of genetic abnormalities, by restricting their use to registered institutions. The Act allows the use of these techniques only at a registered place for a specified purpose and by a qualified person, registered for this purpose.

    • Prevention of misuse of such techniques for sex selection before of after conception.

    • Prohibition of advertisement of any technique for sex selection as well as sex determination.

    • Prohibition on sale of ultrasound machines to persons not registered under this Act.

    • Punishment for violations of the Act.”[5]

    Violations carry a five-year jail term and a fine of about 2,300 U.S. dollars.

    The Medical Termination of Pregnancy Act, 1971

    An Act to provide for the termination of certain pregnancies by registered Medical Practitioners and for matters connected therewith or incidental thereto.

    SOURCE

    http://www.loc.gov/law/help/sex-selection/india.php

    http://policywise.net/2007/09/20/why-sex-determination-should-be-legal-in-india/

    http://www.savegirlchild.org/legal-jurisdiction.html

LAWS ON BREASTFEEDING

International code of marketing of Breastmilk Substitutes. Following are the ten premises -

• No advertising to the public of any product within the scope of the code. These include infant formulas, graduate formulas, teas, cereals, and juices when marketed for infants under the age of six months. The scope also includes bottles.

• No free samples to mothers

• No promotion of products in healthcare facilities, including the distribution of free or low-cost supplies.

• No company sales representatives to advise mothers

• No gifts or personal samples to health workers

• No words or pictures idealising artificial feeding, or pictures of infants on labels of formula cans or other foods for infants.

• Information on health workers should be scientific and factual

• Information to mothers should clearly label the benefits of breastfeeding and the risk of formula feeding

• Unsuitable products such as condensed milk, should not be promoted for babies

• Labeling - must be a high recognised standard and it must meet the standards recommended by the Codex Alimentariuos Commission and the codex code of Hygenic Practice for for Foods for Infants and Children