Can you adopt a child in Bangladesh?

Illustration: TBS

Mr and Mrs Odud were married for 13 years and did not have any children. Mrs Odud tried many doctors, Kabiraji, homeopathy and ayurvedic treatments. "Panipora (water with holy scriptures whispered in it), medicines, the placenta of a cat right after it gave birth, ayurvedic medicine, the female lily flowers - I ate everything everyone suggested. Nothing worked," Mrs Odud said.  

After 13 years, they decided to adopt a child from their village home. They found a poor pregnant couple and struck a deal with them that six months after the baby is born, they will adopt the child. They also settled on an amount. A tipsoi (fingerprint) was taken on a stamp paper that read, "We are giving our child to Mr and Mrs Abdul Odud and from now on, we don't have any claim on this child". 

That's how Jerin came to Dhaka with her new parents in 2004. 

"Signing on a no-objection letter stamp page is not a legal way of adopting a child in Bangladesh," said Barrister Md. Hafizur Rahman Khan. 

According to the Muslim Family Laws Ordinance, 1961, or The Muslim Personal Law (Shariat) Application Act, 1937, adoption - as in giving the child the family's name - is not accepted in Islam, stated the lawyer. Although the Shariah encourages raising an orphan or helpless child, the child must not be given the foster parents' name, as this will be a lie. 

"In Bangladesh, the only option childless couples have is to apply to the family courts for legal guardianship under the Guardians and Wards Act of 1890," he added.

According to the Act, the child must be less than 18 years of age. Unfortunately, children under guardianship do not enjoy all the rights, i.e. inheritance of property from the legal guardian, and thus remain extremely vulnerable. The only way they can be given any property is if the legal guardians 'gift' the child any property before their death. 

What Jerin's adoptive parents did, immediately after bringing her home, was make her birth certificate with their names on as parents, which makes them her 'legal' parents.

"That is how the process is; still very informal in many cases. But this can be risky. Parents can come anytime and claim the child as their own. And if the child also wants to go back, s\he can," explained Barrister Hafiz. 

Meanwhile, people of the Hindu faith can adopt a child according to the Hindu Law of Inheritance (Amendment) Act, 1929. But only a male child can be adopted, and he should belong to a similar Hindu caste and must be adopted by a male adult. The wife can adopt only if she is permitted by her family. 

"The Shastric Hindu Law looked at adoption more as a sacramental than secular act. The object of adoption is two-fold: to secure one's performance of one's funeral rites and to preserve the continuance of one's lineage," said Barrister Hafiz.

Adopting a Bangladeshi child when risiding abroad

The process of legal guardianship includes the family court and the two parties - the willing legal guardians and the real parents, or the orphanage the child is presently residing in. The guardianship seekers are required to apply to the family court for legal guardianship of children, following the Code of Civil Procedure, through filing a prayer. 

After reviewing the application, the court will give its decision, considering the welfare of the children, using its discretion, following the provisions of Personal laws and the Guardians and Wards Act. If the court is satisfied that the parents are eligible to take responsibility for that child, then the decision will be in favour; and if the decision is against them, then an appeal against the decision can be filed with the District Judges Court.

After that, the two parties will be present at the court and the real parents have to promise in front of the judge that they are willingly giving up the child to the other party for guardianship.

Issues arise when the legal guardians want to take the child outside the country. 

"Bangladesh is not a member of the Hague Convention on Protection of Children and Co-operation in respect of Inter-country Adoption. On top of that, Bangladeshi law does not allow for the full adoption of Bangladeshi children inside the country. Therefore, foreign resident Bangladeshi Citizens (Dual Citizens) considering adoption of Bangladeshi children must obtain guardianship from a Bangladeshi family court and then subsequently adopt the child in the country they reside", Hafiz explained. 

"The eight-step process is a long and tedious one. It may take a year or two to take legal guardianship, to apply for a visa, and finally take the child abroad", he added. 

If the prospective adoptive parents, who are residing abroad, have to take permission from the concerned authority of the domicile country – they have to look for individuals, organisations or institutions, ie orphanages, NGOs, shelters etc. and contact them, which can provide necessary documents as regards to the expected adoptee child for the guardianship process. 

So that, later on, no legal issues arise regarding guardianship or adoption.

Then they have to apply to the family court for legal guardianship and submission of necessary documents, like the child's birth certificate, the irrevocable release of the adoptee minor which is duly signed by the biological parents before a Notary Public, Magistrate or the relevant Family Court in Bangladesh, proof that one of the parents is a Bangladeshi citizen, proof that the foreign documents, which have been submitted, have utmost authenticity.

After the decision of the court, the guardians of the child have to obtain the post-guardianship birth certificate of the child, which will bear the proof that the prospective legal guardians are now the valid legal guardians of the child.

Subsequently, if the parents want to take the child out of Bangladesh then it is mandatory for them to obtain a no objection certificate (NOC) from the Ministry of Home Affairs and after applying for it, the concerned ministry will carry out a detailed investigation regarding the said matter and if satisfied, they will provide the NOC.

Thereafter, the guardians have to submit all the required documents, NOC etc. either online or in hard copy to obtain the child's passport and to get him or her out of the country.

And then, all the required medical assessments, tests, vaccinations etc. have to be performed as per requirement in order to obtain a visa.

Finally, all the formalities with regards to adoption have to be completed as per the law of the country of residence of the adoptive parents, according to the adoption law of that country to make the adoption of the concerned child in that country legally valid.

"You cannot imagine how many couples are out there who are unable to have a child and want to adopt one. Many parents from different countries out there want to adopt a child from Bangladesh but because of this complicated law, they are unable to do so. How many times can someone from abroad come down to Bangladesh for court hearings?" lamented Barrister Hafiz. 

"True, there are concerns about trafficking and other criminal activities, but the process should be quick and hassle-free for people who want to adopt a child," he further added.

According to the Ministry of Social Welfare, in 2017-18, there were 86,400 orphans in the 3,500 non-government orphanages in the country. "But all these children are not necessarily parentless. Many have one parent," Barrister Hafiz said.

Among these orphanages, 50% of them are for 5-9 years old.  And there are 85 Shishu Poribar or government children's homes where they have 10,300 seats for orphans. 

There are no proper statistics regarding how many children are adopted or taken under legal guardianship every year in Bangladesh, but according to the US Department of State, 225 children have been adopted and taken to the United States from Bangladesh from 2000 to 2022. 

The trouble with the law

In 1965, during the India-Pakistan war, Ayub Khan amended the Muslim Family Laws Ordinance, 1961 where an article was added, "In the event of the death of any son or daughter of the propositus before the opening of the succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stirpes receive a share equivalent to the share which such son or daughter, as the case may be, would have received if alive."

This means if someone goes to war and dies, his child, regardless of being a son or a daughter, will get his share of the property, even if the father of the deceased is still alive.

This of course stirred up massive debate, because according to the Muslim inheritance act, the ratio of property share between a son and a daughter is  1:2. Hafiz shared this anecdote as an example of what happens when laws and religions get in each other's way.

"If the family laws or the personal laws that are based on religion are amended, religious Muslims or Hindus will not agree with it. So it is better to come up with a separate secular adoption act, regardless of religion and caste," Hafiz said. 

Under a secular law of adoption, orphans could be adopted, because they have the most need for adoption, as it would give them social security, economic support and affection from parents.

"Because there are no proper laws for adoption, children are being stolen from hospitals right after they are born. People find this easier than applying for legal guardianship," said Hafiz.

But won't different existing laws of adoption create problems? "Of course, it would create problems. Secular laws refer to uniform laws that will be applicable to everyone, like penal codes or criminal laws. But people are extremely sensitive when it comes to family issues like marriage, inheritance etc. You cannot impose something that is very personal to every individual. 

So it will be better for us if the system gets easier, less complicated and fast [via a new secular law of adoption]" Hafiz concluded.