Until 2006, non-Hindus (Christians, Jews and Muslims) living in India could only become guardians of orphaned children and not their legal parent. Pictured, Shabnam Hashmi, a social activist based in New Delhi, has been battling in New Delhi’s court system for four years to become the legal parent of her adopted daughter. As a Muslim, Hashmi was only granted guardianship status when she adopted her daughter, Seher, 15 years ago. Even though the law was changed, her case was not grandfathered in. — Photo by Benjamin Gottlieb
Until 2006, non-Hindus (Christians, Jews and Muslims) living in India could only become guardians of orphaned children and not their legal parent. Pictured, Shabnam Hashmi, a social activist based in New Delhi, has been battling in New Delhi’s court system for four years to become the legal parent of her adopted daughter. As a Muslim, Hashmi was only granted guardianship status when she adopted her daughter, Seher, 15 years ago. Even though the law was changed, her case was not grandfathered in. — Photo by Benjamin Gottlieb

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.

Lorraine Campos, the on-site social worker, has a handle on all of Palna’s children, the majority of which are boys under the age of six.

“Those children have the best chance of being adopted,” she explained.

The adoption program has placed approximately 2,700 children in homes domestically and abroad since 1978.  However, even with its pedigree, Palna will not be able to find a home for all of its children. A number of the children brought to the clinic have mental illnesses and are therefore undesirable to prospective parents. The goal, Campos said, is to have as many children as possible pass the vigorous medical examinations Palna performs on its orphans before clearing them for adoption.

That could be tough for Ishant, who sits behind a green accordion gate as he’s fed lunch, his cheeks full of chicken curry and chapati. At just two and a half years old, Ishant is waiting for a bone marrow transplant; a procedure Campos said will keep him in the hospital for roughly three months.

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.”

This lack of understanding corresponds with Indians’ general lack of knowledge about adoption.

“There is still very little awareness of adoption,” Ganotra said.

Her colleague, Nicole Mendes, echoed her concern: “You may have the finest piece of legislation, but if the implementation doesn’t work it doesn’t matter what you have.”

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

There are approximately 20 million orphans in India today, four per cent of the country’s children, according to a study by SOS Children’s Village, an international NGO working with orphaned children. And while the number of orphaned children is on the decline proportionately, the total is expected to increase to 24 million by 2021.

“The situation of orphan children is not that distinct from other poor children in India,” explained Mohan Rao, a professor of social science at Jawaharlal Nehru University in Delhi. “They are leading a hand-to-mouth existence, insecure life, hungry, yearning to be cared for — perhaps abused.”

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.

Despite its historic roots, Hashmi feels that adoption is still stigmatised in Indian society.

“There are also a large number of people that would adopt, but hide the fact,” she said. “They would not want people in the extended family to know that the child is adopted. For us, it was a celebration.”

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.”

Reconciling supply and demand in adoption

Despite varying opinions towards formal adoption, more and more childless Indian couples are looking outside their extended family for adoption opportunities.

Upper-middle class families are having fewer children and therefore are not as willing to share with extended family. Childless couples, who tend to be well-employed, well-educated property owners, are now moving away from traditional in-family adoption and toward adopting destitute children who are legally free to adopt, Bhargava said.

Rao also attests to the increase in demand for adoptions outside the family, but he says those desires are stymied by “a lot of bureaucracy and a lot of delays.”

“Some of these are necessary... but there is a case to be made for making adoption easier,” he said.

India is still adjusting to the demand for formalised adoptions. Currently, many states have multiple districts without any adoption agencies.

Hashmi, Gonsalves and other adoption advocates hope changing the legal structure for non-Hindus will also increase adoption.

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.

Benjamin Gottlieb is an award-winning multimedia journalist from Los Angeles, California, currently working as a reporter and producer for the Washington Post.

Emily Frost is a radio journalist based in New York City and currently works for DNAinfo.com New York as a reporter and producer.

The authors reported this story with a grant from the Knight Foundation.


Activism in verse
07 May 2021

Activism in verse

Poetry speaks louder than prose when it comes to making an impact.
Missing women
07 May 2021

Missing women

In terms of gender parity, we are among the worst.
Mixed signals on rights
Updated 06 May 2021

Mixed signals on rights

Government officials continue to call human rights standards alien to Pakistan’s ground realities.


Reprimanding envoys
Updated 07 May 2021

Reprimanding envoys

The prime minister should have engaged with honest and respectable officers to identify how solutions can be found.
07 May 2021

Foreign funding case

THE foreign funding case against the PTI has become a never-ending tale. It has been dragging on for years and after...
07 May 2021

Water woes

IRRIGATION experts have voiced concern over the decline of freshwater flow through Kotri barrage, which has led to...
Proceed with caution
Updated 06 May 2021

Proceed with caution

The slightest loosening of SOP protocols could send us hurling in the direction where India finds itself today.
06 May 2021

IPP dues

THE ECC decision to pay the first tranche of outstanding dues of one set of IPPs, and further delay the payments of...
06 May 2021

Violence against doctors

HEALTHCARE workers and doctors’ associations in two major hospitals of KP are adamant that the KP Healthcare...