Author: Shashi, Advocate-on-Record, Supreme Court of India, works extensively on issues relating to child rights, child protection, and gender justice.
While reviewing a series of adoption and child trafficking cases from multiple states for research on legal issues and child protection, I became extremely concerned by an ongoing and dangerous pattern. Doctors, intermediaries, and even hospitals were trafficking children, often newborns, to couples under the pretext of “private adoptions.” There is no verification of biological parent consent, no investigation of adoptive families, and no supervision by the competent government. The most alarming part was that everything appeared to be occurring within the boundaries of the law, or at least seemed to be, by taking advantage of the loopholes existing in the Hindu Adoptions and Maintenance Act of 1956 (HAMA).
Evolution of Adoption Laws in India
In order to understand the validity of this procedure, it is important to examine the development of adoption in India, following its transformation from a religious and customary practice to a legally recognized process. In the past, the adoption process was mainly governed by personal laws, especially the HAMA, which permitted only individuals from Hindu, Buddhist, Jain, and Sikh communities to adopt. Individuals who are not Hindus, such as Muslims, Christians, Parsis, and Jews, were excluded from any legal provisions allowing complete adoption.
The Guardians and Wards Act of 1890 (GWA) established provisions for guardianship, but it did not create a true “parent-child relationship”. Under GWA law, the child remained classified as a “ward,” which permitted their biological parents the opportunity to reclaim them at any time. The differentiation between HAMA for Hindus and GWA for other religion led to disparities in adoption rights. The Juvenile Justice (Care and Protection of Children) Act of 2000, subsequently repealed by the JJ Act of 2015, created a consistent and secular framework for adoption applicable to everyone. Despite this constant change, overlapping jurisdictions and legislative discrepancies continued to confuse the distinction between personal and secular adoption regulations.
Legal Ambiguities and Misuse of HAMA
The lack of clarity in this legal framework has raised considerable concerns about the risk of misuse of HAMA which are being exploited as a means of bypassing the established adoption framework. Section 56(3) of the JJ Act 2015 explicitly provides: “Nothing in this Act shall apply to the adoption of children made under the provisions of the Hindu Adoption and Maintenance Act, 1956”. At first look, this provision may appear to be a respectful separation of personal and secular law. In effect, it has created a dangerous vacuum in which thousands of adoptions occur without any regulatory oversight from the state or Central Adoption Resource Authority (CARA).
The exclusion of HAMA adoptions from the purview of the JJ Act has created a serious regulatory vacuum. In contrast to the adoptions governed by the JJ Act, which mandate registration, verification of the child’s origin, and comprehensive background checks for both biological and prospective adoptive parents, HAMA adoptions lack these protective measures. Traffickers often take advantage of the lack of a proper framework, misleadingly asserting that a child was adopted according to Hindu customs or HAMA without providing any credible proof of lawful adoption. The infant can be easily trafficked through using simple notarized paperwork without ever being registered in the official adoption procedure. Despite the clear prohibitions against monetary consideration in adoptions stipulated in Section 17 of HAMA and the JJ Act, this practice persists.
A critical enabler of this trafficking ecosystem is the manipulation of hospital birth records. Pursuant to a clarification dated 15.05.2012 issued by the Office of the Registrar General of India, Ministry of Home Affairs, the requirement of a court adoption order for non-institutional adoptions under the HAMA was discontinued, permitting birth registration on the basis of a registered adoption deed. This administrative relaxation has been systematically abused: with the connivance of medical professionals, traffickers bypass even the adoption deed and fraudulently enter the names of prospective adoptive parents in hospital records at the time of birth, falsely projecting them as biological parents. In one such case examined during this research, a minor victim of sexual assault was made to deliver a child with the active complicity of the attending doctor, who failed to report the offence to the police or the Child Welfare Committee. At birth, the newborn was sold, and the doctor facilitated the entry of the couple’ names in the hospital register as biological parents. No adoption deed or state accountability existed, and the hospital record itself became the instrument for concealing child trafficking.
Recent media reports and investigations have revealed a disturbing number of trafficking operations linked to the illegal sale of infants across states. In many cases, staff at hospitals, fertility clinic operators, and those involved in adoption processes have been directly involved in these offenses. The issue at hand is not illustrative, it carries significant consequences. These instances highlight that infants are being trafficked for adoption via three main methods: Traffickers target vulnerable families and purchase infants from biological parents; Kidnapping or abduction of newborns from hospitals, railways, footpaths, and other public places; and coercive or exploitative procurement of infants from unmarried mothers or women unable to care for their child.
Parliament has recognised that illegal adoptions are driven by a severe demand supply imbalance. The 118th Parliamentary Standing Committee Report notes a sharp decline in lawful domestic and inter-country adoptions, signalling the growth of an illegal adoption market. CARA data shows 36,748 registered prospective parents but only 2,773 legally adoptable children nearly twelve applicants per child leaving most families without a lawful pathway and directly fuelling illegal procurement and sale of children outside the regulated system.
Upon review in the context of the Adoption Regulations, 2022, the discrepancies become increasingly evident. The procedure for adoptive parents intending to take a child (adopted under HAMA) abroad is detailed in Chapter VIII of these Regulations. This recognition that the State is required to take action when a child crosses national boundaries, highlights the inherent contradiction. This disintegrating structure places children at risk. In India, the current adoption regulations do not acknowledge children adopted under HAMA. However, when there is a plan for international relocation, that same child is unexpectedly subject to adoption regulation jurisdiction.
The State acknowledges the necessity of regulating HAMA adoptions for international relocation, particularly to adhere to the Hague Convention guidelines that mandate a No Objection Certificate (NOC) from the appropriate authority. However, it raises a critical question: why does the State abandon its responsibility to ensure the safety and welfare of the same child within its own territory?
The recent ruling by the Supreme Court in Dasari Anil Kumar v. The Child Welfare Project Director & Ors. (2025 INSC 972) has added complexity to the situation. In this case, the Court invoked Article 142 to mandate the handing over of infants to couples who had privately adopted them without adhering to CARA registration or the provisions of the JJ Act. While the Court emphasized the importance of the child’s best interests and emotional connections, the ruling ultimately legitimize the illegal adoptions that did not provide consent of biological parents and involved financial transactions.
Dasari’s judgment disregard for statutory safeguards and has confused the distinction between legitimate adoption and illegal sale, further complicating the ambiguity introduced by Section 56(3) of the JJ Act. This situation poses a significant threat, potentially establishing a standard that allows for the retrospective validation of private, unregulated adoptions in the name of child welfare. Such a move could undermine the authority of CARA and highlight the vulnerabilities within India’s dual adoption framework.
WAY FORWARD
For the purpose of consistency and clarity, it is essential that domestic HAMA adoptions must align with the guidelines set forth in the Adoption Regulations, 2022. The Government should implement procedures that reflect the necessary safeguards established for inter-country and JJ Act adoptions. This includes essential measures like background verification, mandatory registration, and post-adoption monitoring to prevent potential misuse and enhance child protection efforts.
It is essential for every adoption, including those under HAMA, must be registered with CARA or the District Magistrate as a mandatory requirement. This would facilitate the validation of adoptive parents’ qualifications and guarantee appropriate supervision. Additionally, it is essential that all data pertaining to adoption be gathered within a centralized CARA database. A system that operates in real-time and offers transparency would enable ongoing monitoring, documentation, and evaluation, assisting officials in identifying anomalies, preventing trafficking, and improving responsibility among various agencies and jurisdictions.
Increasing public awareness is essential to combat illegal adoptions. It is essential to inform potential adoptive parents about the legal processes involved and the risks associated with unregulated adoptions. It is imperative that agent, hospitals, doctors, and staff involved in illegal adoptions or the trafficking of infants face stringent legal consequences. Only when all such gaps are filled and legal deterrents against the culprits become norm rather than exceptions can we ensure that no child slips in the shadow and into trafficking rings.
