Legal adoption in Bangladesh
মে 10, 2012 2 টি মন্তব্য
In the absence of a uniform law of adoption in Bangladesh, adopted children’s future remains insecure, making the system onerous and ad-hoc
Meena (not her real name) and her husband were married for almost six years and did not have any children. The doctors could not identify the problem and were experimenting different methods, which did not promise any concrete result. As the couple was getting older, they began to lose interest in the trials of experimentation and started considering adoption.
Ironically, in a country where almost half the population is under the age of 18 and about 33 percent of the population lives in abject poverty, the option for legal adoption is non-existent for a majority of the population. For all personal matters, such as marriage and property inheritance, personal religious law is followed. Since there is no uniform law of adoption, each religious community follows the rules dictated in their religion.
“In our country, legal adoption is only applicable to the Hindus. They can adopt following certain rules and the adopted child is considered as a natural child,” informs Dr Shahnaz Huda, Chair of the Department of Law, Dhaka University. “You can only adopt a son under Hindu Law in Bangladesh. You cannot adopt a daughter,” she adds, “A Hindu male has the absolute power of adopting, whether he is married, single or widower. A Hindu female on the other hand has limited power. A single Hindu woman cannot adopt; if a married Hindu woman wants to adopt she has to take the permission of her husband and if a widow wishes to adopt she has to have the permission of her husband given before his death.” Once all conditions of adoption are met, a Hindu adopted son enjoys all the rights of a naturally born son. He automatically inherits property and can carry out the funeral rites.
In Muslim Law, adoption as such is not recognised and is stated through several verses in Surah Al-Azhab in the Holy Koran. A form of adoption was practiced in the Pre-Islamic and early Islamic periods in Arabia. The custom was based on a sense of comradeship on arms or on blood rite or blood feud. The custom was further put to question after Prophet Muhammad (PBUH) married the divorced wife of his adopted son Zaid. Since a person cannot marry the former wife of his natural son, the question how adopted child can be considered as a natural child was put to question. Thus the verse was revealed nullifying adoption in Islam.
Dr Huda, however, notes that both in the Holy Koran and Hadith, Muslims have been encouraged to foster orphans and underprivileged children. Under Islamic law, kafala, a system of fosterage where a child may be placed under the guardianship of a family whilst retaining his lineage, is recognised. “In Christianity, although adoption is encouraged there is no civil mechanism in our country to give it recognition,” she adds.
As a result, most orphanages, safe homes and shelters do not usually place the children under their custody, for adoption or even foster care. One of the main reasons, Dr Dilruba, Executive Director of Hope for the Destitute Women & Children (HDWC), cites, is the lack of motivation and manpower. “There is no provision for fosterage in government orphanages,” she says, “In fact; they refer prospective adoptive parents to us or to the missionaries, when approached.”
Meena, who works at a foreign embassy, had an idea about the laws regarding adoption in our country. She also knew organisations that facilitate the process. Since her husband’s side of the family had quite a few adopted children cases, the usual objection from extended family was absent. She recalls how she and her husband educated themselves for two long years on all the aspects of adoption— religious psychological and so on before they approached Dr Dilruba for adopting a child.
HDWC, initially called Centre for Training and Rehabilitation of Destitute Women, tries to place abandoned children in foster care (informal adoption) of parents who are interested in taking adoption. “Women, who became pregnant as a result of sexual abuse or exploitation and who do not get societal or family support, come here. We look after them and provide for their safe delivery, mental and physical health care,” she informs. After delivery, women, who cannot keep their children because of reasons such as failure to establish paternity or fear of social rejection, leave their children with HDWC signing an abandonment paper, voluntarily. “We never force a woman to give up a child. We ask her to take time to think about the reality,” says Dr Dilruba.
Children in orphanages await the loving care of parents willing to adopt them. Photo: Amirul Rajiv
Under the present system, anyone can foster a child. However, HDWC only considers parents and single mothers who truly crave for a child, are open-minded, agrees not to hide the fact from their extended family or from the child and are financially solvent to provide at least minimum education to the child. Interested parents usually go through a number of sittings with HDWC and the families are visited by HDWC staff before the final decision is made. Strong reference enhances the credibility of the prospective adoptive parents. “In case of Dhaka residents, the number of documents required are few such as voter ID, reference and application. Besides, we also prepare a study report on the couple,” informs Dr Dilruba, “In case of people outside Dhaka we ask for a letter from the Union Parishad chairman.” Sometimes, marriage documents and medical report to justify the reasons for adoption, also has to be submitted.
Fosterage as practiced by HDWC should not be confused with the temporary foster care practiced in many countries abroad where foster parents are given allowances to keep a destitute child. No financial or material transaction is involved in the fosterage process at HDWC except for the stamp charge required for the legal contract drawn between the adopting parents and the organisation. The agreement is required for obtaining legal guardianship of the child.
To acquire legal guardianship, the foster parents have to apply to the Family Court under the Guardians and Wards Act 1890. Legal guardianship gives the parents right to apply for the child’s passport, sign important documents on his/her behalf and so on, explains Dr Huda. After Meena brought her one-month- old son home, they filed a case for legal guardianship through a lawyer. She also obtained a No Objection Certificate (NOC) from the Home ministry to apply for the passport of the child. Usually, Bangladeshi passport requires name of father and mother; to eliminate that requirement Home Ministry’s approval is required. Meena informs that obtaining the NOC from the ministry took the longest time and included police verification.
People who want to adopt children should be given the right to exercise their choice. Photo: Star File
Information regarding the social background of the child or the mother is generally not disclosed. However, institutions like HDWC have to match the religion (if known) of the abandoned child with that of the adoptive parents, complying with the law of the land. To Meena and her husband, none of these were important. Although initially they wanted a girl but once she saw her son at the organisation, she never knew that her decision was final. “I took him up on my lap and though they showed us two more babies, I did not really look at them,” she says, basking in the pride and joy of motherhood. Like Meena, religion, ethnicity, marital and social status of the child did not matter to Sharmin Khan, who is proud of her decision to adopt two Bangladeshi girls. “I want others to understand that there isn’t any shame or stigma to adoption and it should be treated as another way to have a family,” she says.
Not all fosterage or informal adoption takes place through organisations such as HDWC. Nine-year-old Nila (not her real name), studying at a reputed English medium school in the city, was taken into foster care by M Rahman through a verbal and later legal agreement with her biological parents. Since she was four-years-old, Nila used to come to Rahman’s house with her mother, who was a house-help there. Rahman’s daughters adored the smart and beautiful child and requested that their father fulfill their belated mother’s wish of adopting a child. Rahman talked with Nila’s family and they agreed. Through a lawyer he obtained legal guardianship of the child. He also informed his extended family and neighbours about the matter so that Nila was accepted in Rahman’s social circle. “When I did her birth registration, at that time I gave my name and my wife’s name as legal guardians,” he informs, “Her biological parent’s names weren’t required for birth certificate.”
A uniform legal framework for adoption will ensure better future for many orphans and destitute children. Photo: Zahedul I Khan
When asked what will happen to Nila, after his death, 60-year-old Rahman replies with confidence that his elder daughter, who works as a consultant for different international agencies, will look after Nila. Besides, Rahman and her daughters are planning to secure Nila’s future by transferring some property in her name.
The main problem of fosterage comes in the question of inheritance of property or securing the future of the adopted child. Dr Dilruba shares the story of a couple who adopted a child and later when the husband died, his brothers denied property rights to the child. These complications rise mainly because there is no uniform law of adoption in Bangladesh to look after the rights of the adopted child.
“The main protests arise from fundamentalist, not only Muslims but also from other religions, because then (with a uniform law of adoption in place) a Hindu person can also adopt a daughter, which is not possible now. So the daughter may be entitled to property, given there is no son,” explains Dr Huda. “Supposing a Muslim family adopts a daughter and she gets the right of inheritance, as a natural daughter. Then she will take the share of her father’s other relatives, which the relatives will not want.” Although religious reasons are shown as an excuse to prevent enactment of a uniform law of adoption, in Dr Huda’s opinion the question regarding property rights is practically the main barrier.
Bangladesh also does not allow inter-country adoption. In 1982, the Bangladesh Abandoned Children (Special Provisions) Order 1972, which was passed to deport off the war babies born to Bengali mothers as a consequent of rape by Pakistani Army, was repealed. “Protests were raised about this law that the children were not brought up as Muslims,” says Dr Huda. “Moreover, many children were trafficked in the name of adoption. There were also allegations of abuse. Actually, after they were taken away, no one monitored what happened to them,” she briefs. “Another section was added to the Guardians and Wards Act 1890 that guardianship of a Bangladeshi child can only be given to a Bangladeshi.” Thus a foreigner cannot legally adopt or even take guardianship of a Bangladeshi child.
However, non-resident Bangladeshis and Bangladeshis with dual citizenship can apply for legal guardianship. In that case they need to satisfy the law of the country they reside in. Sharmin Khan recounts the month long rigorous process of adoption they had to go through in the United States. “These require all adoptive parents to go through a home study, where they are interviewed, have to show proof that they can take care of a child both in terms of finance and emotionally, as well.”
Once they received clearance, she and her husband had to begin the immigration process in the States, even before they had a child identified. After she took her daughters to California, they went through a probationary period of 12 months and applied to the court for legal adoption. “This is a long drawn out process and it’s particularly difficult and onerous in Bangladesh because there are few formal processing steps and much of it is done on an ad hoc basis, with, at times, the need to apply pressure. We didn’t have to bribe anyone but came close to it,” she adds.
Dr Dilruba says, “If we had a law for adoption then it would have provided uniformity with international adoption laws that exits in other countries. We would not have faced too many questions. Besides, once we become part of an international channel, the child can be monitored and I can get feedback on him/her, irrespective of his/her location.” At present, Dr Dilruba has to ensure the well-being of the child informally through visiting relatives and so on.
Although informal adoption like institution exists, because of absence of legal recognition, the future of the child remains insecure, points out Dr Huda. She believes that a person should have the choice of going under a uniform law of adoption. “People who want to take adoption, should be given the right to exercise their choice and there should be a law available to them if they wish to use it,” she says adding that the Hindu Law of adoption needs to be completely overhauled.
Four years ago, Aryan came to Meena and her husbands’ life as a blessing. As she shares her story, Aryan’s happy chuckles can be heard over the phone. There are millions others like Aryan who can fill up the empty cradles of thousands of homes in Bangladesh. All that is required is an open mind and a uniform law that recognises adoption.