NEW DELHI: 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.
Secular adoptions slow to take off
At the front gate of the Palna compound near the old city of Delhi, where Hashmi adopted Seher, sits a woven cradle for unwanted children. It’s a no questions asked sort of thing – a constant reminder of the taboos still attached to adoption in India.
The idea is to encourage women to bring their unwanted children to the center without fear, said to Neena Maceado, president of the Delhi Council for Child Welfare, which governs the impressive complex. Inside the walled compound, the Palna adoption center – lauded as one of the best in the city because of its in-house trauma center and high placement rate – houses 150-orphaned children. The children are not immediately visible, protected by a series of gates located behind Palna’s business offices.