You asked whether the adoption of two children, Sapna A~ and Amandeep S. A~, from
India by an Illinois resident would be valid in India, and whether Illinois would
recognize such an adoption. Illinois recognizes final and valid adoptions effectuated
in a foreign country, as determined by the United States Departments of State and
Justice. The adoptive family must comply with applicable regulations of the Immigration
and Naturalization Service (INS).
INS granted Sapna A~ and Amandeep S. A~ Immediate Relative-4 (IR-4) visas. INS therefore
determined that Sapna A~ and Amandeep S. A~ were not adopted in compliance with Indian
laws, and that the children had to be adopted in the United States in order to meet
immigration requirements. Based on the INS determination, our research, and advice
of counsel at the Library of Congress, we conclude that the adoptions of Sapna A~
and Amandeep S. A~ were not valid in India. Consequently, Illinois would not recognize
the foreign adoptions as valid.
Although Illinois law does not expressly recognize the theory of equitable adoption,
Illinois courts have nonetheless applied contract law and found valid contracts to
adopt for the purpose of intestate succession in situations similar to those encompassed
by the equitable adoption theory. We conclude that further development of the facts
of this case is necessary to determine whether there were valid contracts to adopt
Sapna A~ and Amandeep S. A~ under Illinois law.
Amarjit A~, born in India, has resided in the United States for many years and became
a citizen in 1982. She resides in Illinois. Amarjit A~ was briefly married in 1975,
but thereafter divorced. She applied for retirement benefits in January 2002 and was
found entitled to benefits that same month. Amarjit A~ also filed claims for child's
benefits for Sapna A~, born September 3, 1987, and Amandeep S. A~, born September
6, 1985. Both children were born in India to Jatinder K. and Pritpal S.. S., Sapna's
and Amandeep's natural father, died in 1989. On June 3, 1991, adoption deeds for each
child were executed, with an attorney acting on behalf of Amarjit A~. According to
the deeds, a ceremony took place in compliance with the requirements of the Hindu
Adoptions and Maintenance Act of 1956. Amarjit A~ did not travel to India to personally
participate in the adoption proceedings. The Illinois Department of Children and Family
Services (DCFS) reported that an adoptive study of Amarjit A~'s home was performed,
and the agency recommended adoptive placement of the children with Amarjit A~. Sapna
A~ and Amandeep S. A~ did not come to the United States until 1997. They became naturalized
citizens on August 9, 1997.
Legal Framework for Determining Whether Sapna A~ and Amandeep S. A~ Are Entitled to
Child's Benefits on the Earnings Record of Amarjit A~ Under the Social Security Act
and Regulations and Illinois Law.
In order to be eligible for child's benefits on a wage earner's account, a claimant
must show that he or she is the wage earner's child. 42 U.S.C. §§ 402(d), 416(e);
20 C.F.R. § 404.350. The regulations define a child as a natural child, legally adopted
child, stepchild, grandchild, stepgrandchild, or equitably adopted child. 20 C.F.R.
§§ 404.350-359. In order to determine whether a claimant is a legally adopted child,
SSA applies the adoption laws of the state or foreign country where the adoption took
place. 20 C.F.R. § 404.356. A claimant may be eligible for child's benefits as an
equitably adopted child if the insured individual agreed to adopt the claimant but
the adoption did not occur. The agreement to adopt must be one that State law would
recognize so that the claimant would be eligible to inherit a child's share of the
insured's personal property if the insured were to die intestate. 20 C.F.R. § 404.359.
As explained below, the adoptions of Sapna A~ and Amandeep S. A~ were not valid under
the law of India, where the adoptions were attempted. However, Illinois courts have
enforced contracts to adopt in situations where the evidence shows the intent to adopt
but the adoption proceedings were procedurally defective.
The 1991 Adoptions of Sapna A~ and Amandeep S. A~ Did Not Comply With Indian Law.
The IR-4 visas granted to Sapna A~ and Amandeep S. A~ indicate that their adoptions
did not comply with INS requirements, and that INS determined that Amarjit A~ would
have to adopt both children after they arrived in the United States. Section 5 of
the Hindu Adoptions and Maintenance Act, India Code, Act No. 78 of 1956, provides
that purported adoptions in contravention of its provisions shall be void. Section
6 of the Act provides that no adoption is valid under it unless:
the adopting parent has the capacity and right to take the person in adoption;
the parent giving someone in adoption has the capacity to do so;
the person being adopted has the capacity to be adopted; and
the adoption complies with the other statutory conditions.
In addition, the Act requires precise adherence to a ceremony of “giving and taking” the children in adoption to show the intention to transfer the children from the
natural family to the adopting family. The Supreme Court of India has found this requirement
satisfied only by the actual physical delivery and acceptance of a child by its natural
parent and its adopting parent.
The evidence does not demonstrate that the required ceremony took place. First, although
the adoption deeds indicate that the natural mother, Jatinder K., participated, Amarjit
A~ stated that the natural mother was not present to “give” the children at the required ceremony. Second, the record shows that Amarjit A~ did
not participate in the ceremony to “take” the children, but instead remained in the United States and authorized an attorney
to take the children on her behalf. Further, Amarjit A~ apparently did not go to India,
and the children did not come to the United States, until 1997. Under these circumstances,
we conclude that the essential “giving and taking” ceremony did not take place in accordance with Indian law. Consequently, Illinois
would not recognize as valid the 1991 adoptions of Sapna A~ and Amandeep S. A~ in
If Additional Development Supports the Existence of Parent/Child Relationships Between
Amarjit A~ and Sapna and Amandeep S. A~, Illinois Would Give Legal Effect to the Adoptions
of Sapna A~ and Amandeep S. A~ Under the “Equitable Adoption” Theory.
Although the 1991 adoptions of Sapna A~ and Amandeep S. A~ in India appear to have
been invalid, they may nonetheless be entitled to child's benefits as the equitably
adopted children of Amarjit A~:
You may be eligible for benefits as an equitably adopted child if the insured has
agreed to adopt you as his or her child but the adoption did not occur. The agreement
to adopt must be one that would be recognized under State law so that you would be
able to inherit a child's share of the insured's personal property if he or she were
to die without leaving a will.
20 C.F.R. § 404.359. Our review of Illinois case law reveals that Illinois does not
expressly recognize the theory of equitable adoption. Instead, Illinois courts have
consistently applied contract law to determine whether there was a valid and enforceable
contract to adopt in those cases in which an adoption is alleged but the adoption
proceedings were found defective. In Re Estate of Edwards v. Edwards, 435 N.E.2d 1379, 1381 (Ill. App.3d 1982).
Illinois in several cases has recognized equitably adopted children as legitimate
heirs for the purpose of intestate succession. In Dixon National Bank v. Neal, 125 N.E.2d 463, 465 (Ill. 1955), the Illinois Supreme Court observed: “it has become the settled rule of law that to be entitled to a decree for specific
performance of a contract for adoption it is necessary that the contract be proved
as alleged by evidence that is clear and convincing.” The court determined that the common thread among Illinois cases in which contracts
to adopt were found valid for the purpose of determining intestate succession was
the existence of either a written memorandum of the alleged agreement to adopt or
the testimony of a witness to the making of an oral contract. 125 N.E.2d at 465, citing
Weiss v. Beck, 115 N.E.2d 768, 772 (Ill. 1953). Further, the court expressly noted in Dixon that “in some jurisdictions an invalid adoption proceeding had been enforced as a valid
contract to adopt.” 125 N.E.2d at 466.
In Winkelmann v. Winkelmann, 178 N.E. 118 (Ill. 1931), plaintiff sought a decree that she was the legally adopted
daughter of Winkelmann, who died intestate, and thus entitled to inherit his personal property. Winkelmann had mistakenly believed he adopted the child in compliance with Illinois law. The
court concluded that there was a valid contract to adopt because the evidence showed
Winkelmann treated the child as his daughter and she treated him as her father; the terms of
the contract to adopt were reasonable, clear, and specific; the contract was not repugnant
to public policy; and the surrender of the child to Winkelmann by her natural father was a valuable consideration for the contract. See also Monahan v. Monahan, 153 N.E.2d 1, 4 (1958) (where oral contract to adopt was “clearly established” and “fully performed” by the adopted child, “to allow the contract to remain unenforced is unfair, unjust, and inequitable.”).
Even an agreement signed by only the natural parents and the institution placing the
child, but not by the adoptive parents, was found to create a valid contract to adopt
when considered together with circumstances which otherwise tended to show the existence
of a mother/daughter relationship. Soelzer v. Soelzer, 47 N.E.2d 458 (Ill. 1943). Thus, Illinois courts have generally examined the nature
of the relationship between the purported adopted child and the purported adoptive
parent in determining the validity of an alleged contract to adopt. Yet absent either
a written memorandum of the alleged agreement to adopt or the testimony of a witness
to the making of an oral contract, Illinois courts have declined to find a valid contract
to adopt. See, e.g., In Re Estate of Staehli v. LaRaviere, 407 N.E.2d 741, 744 (Ill. App.3d 1980).
The cases discussed above indicate that the adoption deeds constitute persuasive evidence
of valid contracts to adopt Sapna A~ and Amandeep S. A~. The terms of the adoption
decrees make clear that the intent of the natural mother and Amarjit was that Amarjit
adopt and raise the children as her own. Moreover, the decrees specifically provide
that each child “shall inherit the properties of the adoptive mother.” The surrender of the children by their natural mother was valuable consideration
sufficient to support the existence of a contract to adopt. See Dixon National Bank, 125 N.E.2d at 467. All of these factors suggest that Illinois law would likely find
a valid contract to adopt Sapna A~ and Amandeep S. A~.
Nonetheless, aside from the evidence that Sapna and Amandeep S. resided with Amarjit
A~ and took her last name, we have no information regarding the nature of the children's
relationship with Amarjit and whether friends and/or relations generally regarded
the children as Amarjit's legally adopted children. We conclude that additional information
addressing this issue is necessary before a final determination as to the validity
of Sapna's and Amandeep S.'s adoptions under Illinois law can be made. So long as
the information you develop supports the existence of a parent/child relationship,
we believe Illinois would recognize as valid the adoptions of Sapna A~ and Amandeep
S. A~ by Amarjit A~. Both children would therefore be entitled to child's benefits.
We conclude that the adoptions of Sapna A~ and Amandeep S. A~ were not valid under
Indian law, and that evidence regarding the nature of their relationships with Amarjit
A~ needs to be developed. If that evidence is consistent with a parent/child relationship,
however, we believe Illinois law would recognize the adoptions as valid
Gary A. S~
Acting Regional Chief Counsel
Assistant Regional Counsel