Supreme Court Allows Woman Who Sought Abortion To Give Child For Adoption To A Couple Registered With CARA

In a plea filed by a 21-year old unmarried woman seeking permission to terminate a 29-week pregnancy, the Supreme Court of India, while noting that the petitioner in question had agreed to give birth to the child and place the child for adoption, asked AIIMS to take all necessary precautions in the interest of the safety and health of the mother and the fetus. Further, permission was granted for the adoption of the child by the prospective parents whose details were set out in the CARA registration form. CARA was asked to take all necessary steps to facilitate the said adoption. 

The matter was heard by a bench comprising the Chief Justice DY Chandrachud, Justice PS Narasimha and Justice JB Pardiwala.

On the last occasion, the bench received the report from AIIMS which stated that there was high probability of the baby being born alive if abortion was attempted. In the light of this report, the CJI had requested the assistance Additional Solicitor General Aishwarya Bhati to counsel the petitioner.

In today's proceeding, ASG Bhati informed the court that the woman had agreed with the medical advice as provided by AIIMS and was ready to give birth and then give up the child for adoption. At this juncture, Solicitor General Tushar Mehta submitted–

"There is a suggestion as far as adoption goes. The normal procedure as per law is under the ministry of child welfare and development, there is a process which is called CARA guidelines. There, substantial time is taken. Even if there are takers through the adoption agency, there is a process to ascertain whether the child should be handed over to a family or not. The request which I am going to make is not in accordance with that procedure. There is a couple, belonging to a good family where the child would get excellent support. They are readily willing. I don't wish to name them. They have already registered with CARA, awaiting the decision."

CARA is an autonomous and statutory body of Ministry of Women and Child Development in the Government of India. It functions as the nodal body for adoption of Indian children and is mandated to monitor and regulate in-country and inter-country adoptions.

ASG Bhati further informed the bench that a home study of the couple was done. She added that the couple was registered with CARA and not outside the system. The counsel for petitioner, Advocate Rahul Sharma submitted–

"She has completely broken down. She has left her hostel and is living with a cousin now. She is afraid to even come out of house, she's just 21. She is worried that she won't be able to go to college as it is visible now- the pregnancy."

ASG Bhati, extending assistance offered for the petitioner to be kept at her own house to ensure that all help is extended to her. 

The bench, while noting that the matter was sensitive in nature, went to the chambers to make a decision. Later, the Court passed the order, invoking its extraordinary powers to do complete justice under Article 142 of the Constitution.

After the order was pronounced, ASG Bhati told the CJI, "The young student is very happy with your lordships' order".

"Happy to hear. I was actually really scared about the situation", CJI replied.

Adoption in India: What is the process?

Adoption in India is governed by three laws, namely, the Hindu Adoption and Maintenance Act of 1956, which is applicable to Hindus, Buddhists, Jains and Sikhs; the Guardian and Wards Act of 1890, which is applicable to Muslims, Parsis, Christians and Jews in adoption; and finally, the Juvenile Justice (Care and Protection) Act of 2000. 

In order to adopt a child in India, a Prospective Adoptive Parent (PAP) has to upload their application for adoption and relevant documents on CARA’s website. A home study of the PAP by a social worker of a Specialised Adoption Agency (SAA), which is an agency recognised by CARA, is then conducted, and uploaded on the website. Profiles of children identified as legally free for adoption are then shared by the SAA with the prospective parents, who are supposed to reserve a child within 48 hours. The SAA is then supposed to match the child with the prospective parent within a period of 20 days.

Case Title: P v. UoI And Anr. WP(C) No. 65/2023

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