In India, Non-Hindu Parents Face Adoption Prejudice

In India, non-Hindu parents face adoption prejudice
ICC Note:
In India, an example of prejudice against religions other than Hinduism can be seen through the way the country handles adoption. Before 2006 only Hindus could legally adopt an orphan. Other religions, including Muslims and Christians were allowed to be guardians, but at the age of 18 the child “lost the rights” to the family he/she grew up with. A law was passed in 2006 changing that, however it was not widely advertised and apparently, many judges are not even aware of the change. Now that freedom of religion is extended to adoption, the process begins to educate the population. If we can extend that freedom to other religions in general, we may find that India lives more peaceably.
“Why does it matter whether the child is coming from a Muslim, Christian or Hindu family?”
 Before 2006, only Hindu parents — a legal designation that also includes Buddhists, Jains and Sikhs — could become the legal parents of an orphaned child.
“Seher is being denied her right to family only by the fact that someone who has adopted her is not a Hindu. That is discrimination.”
. At the age of 18, Seher, like almost all of India’s orphaned children adopted by non-Hindus before 2006, will have no legal ties to her adoptive parents, the only family she’s known.
“Even judges don’t know,” he said. “It’s perfectly legal now, but people don’t know. The Act has been amended, the law has been changed, but people still don’t know.”
 
 
By Emily Frost and Benjamin Gottlieb
7/30/2012 India (Dawn)- When Shabnam Hashmi visited her first adoption centre in New Delhi’s suburbs, she was told that they didn’t have any Muslim children.
“I was actually shocked because children don’t have a religion,” said Hashmi, a Muslim social activist and mother of two. “Why does it matter whether the child is coming from a Muslim, Christian or Hindu family?”
But Hashmi, 54, would soon discover that religion matters considerably when it comes to finding and legally adopting an Indian child.
Structured, regulated adoption is a relatively new phenomenon in India, and for many years the law governing adoption discriminated against Muslims and Christians. Before 2006, only Hindu parents — a legal designation that also includes Buddhists, Jains and Sikhs — could become the legal parents of an orphaned child. The country’s Abrahamic faiths were granted only guardianship rights.
The lack of equality under the law has infuriated Hashmi, since the moment she adopted her daughter. Seher, now 15, was a baby when Hashmi took her from the Palna adoption center – one of Delhi’s premier, government sanctioned adoption institutions.
Back then, legal channels existed for Hindus to adopt children, but as a Muslim, Hashmi could only adopt through the Guardian and Wards Act, an antiquated Indian law from the late 19th century.
Under the old law, “there wasn’t that sense of legal protection for the child — if suddenly in a car accident the parents die,” said Vinita Bhargava, a professor of childhood studies at the Lady Irwin College in Delhi. “And there have been instances in which obviously nothing belongs to the child, so the child is put in an institution.”
Hashmi is distraught at the thought that her daughter will lose all legal rights to her adoptive family after she turns 18.
“The right to a family is a fundamental right,” Hashmi said. “Seher is being denied her right to family only by the fact that someone who has adopted her is not a Hindu. That is discrimination.”
In 2006, India’s adoption law underwent a radical change. The Juvenile Justice Act of 2000 (JJA), one of the first acts to legislate on behalf of children, was amended, creating a provision for Muslims, Christians, atheists and any non-Hindu to become legal adoptive parents. But the act doesn’t help Hashmi – who manages Act Now for Harmony and Democracy (ANHAD), an NGO that works with India’s marginalised communities – because she adopted before 2006.
“Basically, we cannot be Seher’s family because we are a Muslim family,” said Hashmi, who also has a 25-year-old biological son, Sahi.
Hashmi, however, isn’t resigned to this fate. She is putting up a fight to become Seher’s legal mother in India’s Supreme Court. Winning parental rights changes everything for non-Hindu parents and affects legal issues including inheritance and property rights, said Colin Gonsalves, a lawyer with the Human Rights Law Network, who has taken Hashmi’s case.
The problem, Gonsalves explained, is that although the law changed, there are no legal mechanisms to grandfather in families like the Hashmis. At the age of 18, Seher, like almost all of India’s orphaned children adopted by non-Hindus before 2006, will have no legal ties to her adoptive parents, the only family she’s known.
“I remember my friends used to say, ‘oh God, you’re adopted. You don’t have real parents’… Nowadays, I think about it and get depressed,” Seher, who now studies at a boarding school a few hours outside Delhi in 10th grade, said. If Hashmi is unsuccessful in court, the harassment Seher faced as a child may become a reality.
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While Palna may be aggressively tackling India’s orphan problem, not a lot of India’s prospective parents know the rules of adoption have changed. The amendment to the JJA, which now allows all Indians to become the parents of orphaned children, didn’t garner a lot of media attention, Gonsalves said.
“Even judges don’t know,” he said. “It’s perfectly legal now, but people don’t know. The Act has been amended, the law has been changed, but people still don’t know.”
Komal Ganotra, a child protection advocate at Childline, an NGO that helps place abandoned children in adoption facilities, said the JJA is progressive because it finally puts the rights of the child first. But, she said, “Everybody does not know they can adopt under JJA.”
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Both Hindu and non-Hindu parents have had mixed success using the JJA, Mendes explained.
A number of judges have turned down requests under the new law, Ganotra said, because there aren’t many precedents established with the amended legislation.
No matter which judge you are assigned, guardianship is almost guaranteed for non-Hindus, while full adoption remains elusive. In this uncertain system, with so much at stake, non-Hindu parents would do best to use the older law, Mendes said.
Modernity vs tradition
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Advocates of legal adoption in India believe that the new, secular law will make it easier for the country to combat the high orphan rates. Before the secular law became available, Hindus and Muslims used religious law to govern family affairs and processes like adoption. But the adoption system remains notoriously laborious, in part because formalised adoption is a relatively new phenomenon in India, but also because of the problem of child trafficking, which has roiled the Indian subcontinent in recent years.
Outside of the legal hurdles, informal inner-family adoption in India has always been a central part of Indian culture, Bhargava said. In this predominantly Hindu society, it was crucial to have a boy who could bury his parents, which under Hindu religious law means putting them to rest and continuing the family line, she said.
“If you didn’t have a child, then religion would deem that you adopt a male child,” Bhargava, who wrote a book on India’s adoption networks, said.
Under traditional Hindu law, it was preferable to adopt a male child from within the family. This was made official through a very simple religious ceremony, Bhargava said.
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Hindu concerns over maintaining “pure blood” also contribute to the reticence to adopt outside the family. Hinduism has a legacy, now changing, of organising society by caste, a religiously inflected designation that dictates class and social roles. Lower castes, such as the Dalits or “untouchables,” have the least economic and social opportunities, while Brahmins are considered the highest rung of society.
“The problem with Hinduism is that it’s so closely tied to caste,” said Hinduism historian Uma Chakdavarthy, who adopted her daughter in the 1970s. “Why is there resistance to adoption and this hysterical obsession with new technologies to have your own biological child? You’re reproducing the ideology of the ‘pure blood’.”
Hashmi agrees that the significance of caste and religion has kept many childless parents from adopting outside of their family.
“We don’t know where the child comes from; we don’t know whose blood is there. It could be a lower caste. It could be a Muslim,” she said.
And when parents do adopt, Hashmi added, they prefer fair-skinned, male children that resemble those in the upper castes.
Chakdavarthy hopes that modern adoption can change how Hindus relate to the notion of blood.
“If adoption can actually dent their obsession with blood substance or genetic substance, then it’s great,” she said. “You do see a lot of that even in deeply believing people — that we can rise above blood and caste and all that stuff.”
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In an immediate sense, they are hoping the Supreme Court will decide in Hashmi’s favour, drastically altering the Indian paradigm that has spelled unequal treatment under the law for non-Hindus seeking to adopt.
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