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SC Stays Bombay High Court’s Order Increasing the Adoption Fee

LIVELAW NEWS NETWORK
20 Sep 2017 7:02 AM GMT

The Supreme Court bench of Justices N.V.Ramana and Amitava Roy, on September 15, stayed the orders of the Bombay High Court passed in November 2016, substantially increasing the legal and composite fees payable by the Indian and foreign adoptive parents to the adoption agencies at the time of adoption of a minor child.The Bombay High Court orders were passed by Justice G.S.Patel, while...

The Supreme Court bench of Justices N.V.Ramana and Amitava Roy, on September 15, stayed the orders of the Bombay High Court passed in November 2016, substantially increasing the legal and composite fees payable by the Indian and foreign adoptive parents to the adoption agencies at the time of adoption of a minor child.

The Bombay High Court orders were passed by Justice G.S.Patel, while allowing the adoption of an Indian child by adoptive parents from Malta.  Justice Patel justified the fee increase on the ground that the legal fees and the Indian Council of Social Welfare (ICSW) - a Supreme Court- approved scrutinising agency - fees in relation to both in-country and foreign adoptions have remained unchanged for many years.

For in-country adoption, the High Court increased the fee from Rs.40,000 to Rs.75,000, to take care of the child care corpus, preparation of the child study report, the medical examination report, child care and maintenance, etc.  The High Court also increased the same fee for adoptions by foreign parents from US$5000 to US$6000.

The High Court had accepted the submission that legal costs and the costs of ICSW should be segregated; that hospitalisation costs should be reimbursable on actuals; and that the slabs should be raised keeping in mind the current conditions.

The High Court observed: “It  cannot be the intent of the government and it is most certainly not the intent of any Court to simply make our orphaned children available at next to no cost.  There is no reason why the entire process should be factored at a loss to the various adoption agencies, and other persons and professionals involved.”

The High Court emphasised that there is an in-built filter and safeguard, for all adoption placements are routed through CARA [Central Adoption Resource Authority], and no adoptive parent is legally allowed to deal with an adoption agency directly.

The High Court revised the legal costs from Rs.14500 for Indian parents to Rs.22500.  For the foreign parents, the legal costs were enhanced from Rs.19500 to 27500.

The ICSW fees for Indian adoptions was raised from Rs.1000 to Rs.2500,and for foreign adoptions from Rs.5000 to Rs.7500.

The High Court did not see any merit in keeping the basic costs  and hospitalisation lower for second adoptions.  “We are after all dealing with human children, and we cannot compromise on the health and welfare of second child merely because she or he is a second child”, the High Court observed, while holding that the revised figures would remain the same for the second child as well.

There is no logic to pegging the second adoption at one-fifth the cost of the first adoption, it reasoned.

The High Court also proposed that if a child has been with the adoption agency for a period of more than 15 months from the date of his entry into the adoption agency, the adoption institution will be at liberty to request the adoptive parents to make a contribution to it for the additional costs incurred for the period beyond 15 months on actuals and on presentation of a reasonable per diem rate for the maintenance and upkeep of the minor.

The High Court also urged CARA to revisit the complete ban on adoptive parents making any sort of donation, even voluntarily to the adoption agencies.  It found the concerns over racketeering largely unfounded as all adoptions go through CARA.

Subsequently, when CARA objected to the revision of fees, Justice Patel expressed his surprise thus: “I should I have thought that CARA would have as its foremost concern the welfare of the child and correctness of the adoption procedure, and not issues of expenses and costs.  I cannot begin to contemplate a situation where a government body compromises on the welfare and well-being of these minors, some of whom are very young, and some who require extensive medical attentiona nd care.  It also cannot be CARA’s remit to suggest that the quality of legal services should be compromised.”

Justice Patel added that further proceedings to hear CARA’s objections, would be held in open court.

As the Supreme Court’s stay on Justice Patel’s orders and the pending proceedings before him continues, the case will be listed for next hearing on November 3.

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