CHAPTER 19: ADOPTION
PRINCIPLES AND CASES IN PRIVATE INTERNATIONAL LAW:
A PROCEDURAL APPROACH
-oOo-
MARK ANGELO S. DELA PEÑA
To cite this online book, please use the following:
Dela Peña. 2023. "Principles and Cases in Private International Law: A Procedural Approach." Published by Project Jurisprudence - Philippines. Published: September 17, 2023. Link: [Insert link] Last accessed: [Insert date of access].
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CHAPTER 19:
ADOPTION
Adoption is defined as the process of making a child, whether related or not to the adopter, possess in general, the rights accorded to a legitimate child.[1] In its very traditional sense, it is a legal process by which the adoptee is elevated[2] to the level of a legitimate child. More appropriately, it is the process of legally granting between the adopting parents and the adopted children the vinculum juris or legal tie that naturally arises between a mother, as well as a father, and a person expelled from her womb.
Adoption is a juridical act, a proceeding in rem which creates between two persons a relationship similar to that which results from legitimate paternity and filiation.[3] The modern trend is to consider adoption not merely as an act to establish a relationship of paternity and filiation, but also as an act which endows the child with a legitimate status.[4] These concepts on adoption were confirmed in 1989, when the Philippines, as a State Party to the United Nations Convention of the Rights of the Child (UNCRC), accepted the principle that adoption is impressed with social and moral responsibility, and that its underlying intent is geared to favor the adopted child.[5] Republic Act No. 8552, otherwise known as the “Domestic Adoption Act of 1998,” secures these rights and privileges for the adopted.[6]
One of the effects of adoption is that the adopted is deemed to be a legitimate child of the adopter for all intents and purposes pursuant to Article 189[7] of the Family Code of the Philippines and Section 17 Article V of Republic Act No. 8552.
EVOLUTION OF ADOPTION
LAWS IN THE PHILIPPINES
Adoption laws have evolved in the Philippines throughout the century from the Spanish Civil Code of 1889 (Old Civil Code), to Republic Act No. 386 or the New Civil Code of the Philippines (August 30, 1950), to Presidential Decree No. 603 also known as the Child and Youth Welfare Code, to Executive Order No. 209 (Family Code of the Philippines), which was enacted on August 3, 1988 by President Corazon C. Aquino, to the Inter-Country Adoption Law was passed in 1995 (Republic Act No. 8043) and Republic Act No. 8552, also known as the Domestic Adoption Act of 1998, to Republic Act No. 9523, to Republic Act No. 10165 (also known as the Foster Care Act of 2012), and, so far, to Republic Act No. 11642 (also known as the Domestic Administrative Adoption and Alternative Child Care Act).
This book is not the proper place to discuss in full the laws on adoption. Such honor belongs to the experts such as Sempio-Diy, Paras, Albano, Sta. Maria, Rabuya and others. What this author humbly seeks to explore is merely the conflict of laws implication of adoption.
In the case of In Re Adoption of Garcia,[8] the Supreme Court held that, being a legitimate child by virtue of her adoption, it follows that Stephanie is entitled to all the rights provided by law to a legitimate child without discrimination of any kind, including the right to bear the surname of her father and her mother. This is consistent with the intention of the lawmakers. In fact, it is a Filipino custom that the initial or surname of the mother should immediately precede the surname of the father. Hence, since there is no law prohibiting an illegitimate child adopted by her natural father, like Stephanie, to use, as middle name her mother’s surname, the Court found no reason why she should not be allowed to do so.
ADOPTER’S NATIONAL LAW VS.
PHILIPPINE ADOPTION LAW
Considering that adoption creates a legal tie between the adopters and the adopted child and that the present law allows adoption of a Filipino child by a foreigner,[9] also taking into account that adoption creates filiation and paternity which are a status and condition, the complication lies in the question of whether the national law of the foreigner adopter recognizes the vinculum juris thus created.
To remedy this, the Inter-Country Adoption Law (Republic Act No. 8043) created the Inter-Country Adoption Board, hereinafter referred to as the Board, to act as the central authority in matters relating to inter-country adoption. It shall act as the policy-making body for purposes of carrying out the provisions of said law, in consultation and coordination with the Department, the different child-care and placement agencies, adoptive agencies, as well as non-governmental organizations engaged in child-care and placement activities. One of its functions is to accredit and authorize foreign adoption agencies in the placement of Filipino children in their own country.[10]
Also, the Inter-Country Adoption Board is tasked to prepare, review or modify, and thereafter, recommend to the Department of Foreign Affairs, memoranda of agreement respecting inter-country adoption consistent with the implementation of the law and its stated goals, entered into, between and among foreign governments, international organizations and recognized international non-governmental organizations. To ensure that the paternity and filiation creation by legal fiction encounters no conflicts problem, Section 11 of the law states: “No child shall be matched to a foreign adoptive family unless it is satisfactorily shown that the child cannot be adopted locally. The clearance, as issued by the Board, with the copy of the minutes of the meetings, shall form part of the records of the child to be adopted. When the Board is ready to transmit the Placement Authority to the authorized and accredited inter-country adoption agency and all the travel documents of the child are ready, the adoptive parents, or any one of them, shall personally fetch the child in the Philippines.”
Under Section 15 of the Inter-Country Adoption Law, the Department of Foreign Affairs (DFA), upon representation of the Inter-Country Adoption Board, shall cause the preparation of executive agreements with countries of the foreign adoption agencies to ensure the legitimate concurrence of said countries in upholding the safeguards provided by said law.
[1] Paras, Civil Code of the Philippines Annotated, Vol. I, Fifteenth Edition, 2002, p. 685.
[2] The term “elevated” here is used in the context of the traditional conceptualization of adoption. Due to the trend toward political correctness, the term should be avoided.
[3] Pineda, The Family Code of the Philippines Annotated, 1989 Edition, p. 272-273, citing 4 Valverde, 473.
[4] Prasnick vs. Republic, 98 Phil. 665, cited by Paras, Civil Code of the Philippines Annotated, Vol. I, Fifteenth Edition, 2002.
[5] Lahom vs. Sibulo, G.R. No. 143989, July 14, 2003, 406 SCRA 135, citing United Nation General Assembly/44/49 (1989).
[6] “Section 17. Legitimacy. – The adoptee shall be considered the legitimate son/daughter of the adopter(s) for all intents and purposes and as such is entitled to all the rights and obligations provided by law to legitimate sons/daughters born to them without discrimination of any kind. To this end, the adoptee is entitled to love, guidance and support in keeping with the means of the family.” (Republic Act No. 8552)
[7] “Article 189. (1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters and both shall acquire the reciprocal rights and obligations arising from the relationship of parent and child, including the right of the adopted to use the surname of the adopters.”
[8] G.R. No. 148311, March 31, 2005.
[9] “Section 9. Who May Adopt. — Any alien or a Filipino citizen permanently residing abroad may file an application for inter-country adoption of a Filipino child.”
[10] Section 4 of Republic Act No. 8043.
