ADOPTION LAWS

A Comparison of The Hague Convention and

Philippine Domestic Laws

DEFINITION OF TERMS
Adoption- is a juridical act which creates between
two persons a relationship similar to that which
results from legitimate paternity and filiation
Inter-country Adoption- refers to the socio-legal
process of adopting a child by a foreigner or by a
citizen permanently residing abroad (Sec. 3(a),
RA 8043)

RELEVANT LAWS
Convention on Protection of Children and Cooperation in respect of Inter-country Adoption
(Concluded 29 May 1993, Entered into force1
May 1995)
RA 8043 Inter-Country Adoption Act of 1995
(approved 1 June 1995)
RA 8552-- Domestic Adoption Act of 1998
(approved 25 February 1998)
A.M. No. 02-6-02-SC- Procedural Rule on
Adoption

RELEVANCE IN PRIVATE
INTERNATIONAL LAW

Adoption- is a matter affecting the status of the

parties
Governed

by lex domicilii

Problem:
When

adopter and adoptee are domiciled in 2

different places
One solution:

Look at adoptions main object: WELFARE OF CHILD, then

apply the laws of his domicile
Complication:
When domicile of child is constructive
He is a citizen of a state where he does not actually
reside

CAPACITY OF AN ALIEN TO ADOPT

Under Family Code

Not

allowed
Exception: aliens who have some relationship with
the adopted child by consanguinity or affinity (Art.
184)

Under RA 8552 and RA 8043

Aliens

could now adopt

Provided:

He has legal capacity to adopt (based on laws of his state)

State laws allows the entry of an adoptee into the adopters
country

CAPACITY OF ALIEN TO ADOPT

RA 8053

RA 8552

Alien residing abroad

Alien has been living in the

Philippines for at least three (3)
continuous years prior to the
filing of the application for
adoption and maintains such
residence until the adoption
decree is entered

at least twenty-seven (27) years

of age and at least sixteen (16)
years older than the child to be
adopted, at the time of
application

Must be of legal age and at least

16 years older than the child to
be adopted

Age and 16 year gap

requirement: may be waived if

16 year gap may be waived when

the adopter is the biological

OTHER PEOPLE QUALIFIED TO

ADOPT UNDER RA 8552:
Any Filipino
citizen of legal age
in possession of full civil capacity and legal rights
of good moral character
has not been convicted of any crime involving moral
turpitude
emotionally and psychologically capable of caring for
children
at least sixteen (16) years older than the adoptee,
in a position to support and care for his/her children in
keeping with the means of the family.
The guardian with respect to the ward after the
termination of the guardianship and clearance of his/her
financial accountabilities

OTHER EXEMPTIONS GRANTED UN

RA 8552
requirements on residency and certification of the
alien's qualification to adopt in his/her country
may be waived for the following:
a former Filipino citizen who seeks to adopt a
relative within the fourth (4th) degree of
consanguinity or affinity; or
one who seeks to adopt the legitimate
son/daughter of his/her Filipino spouse; or
one who is married to a Filipino citizen and seeks
to adopt jointly with his/her spouse a relative
within the fourth (4th) degree of consanguinity or
affinity of the Filipino spouse

ADOPTION BY SPOUSES (RA 8552)

Husband and wife shall jointly adopt

Exceptions:
if

one spouse seeks to adopt the legitimate

son/daughter of the other; or
if one spouse seeks to adopt his/her own illegitimate
son/daughter: Provided, However, that the other
spouse has signified his/her consent thereto; or
if the spouses are legally separated from each other.

WHO MAY BE ADOPTED

RA 8053
Only a legally free child may be
the subject of inter-country
adoption.

RA 8552
(a) Any person below eighteen
(18) years of age who has been
administratively or judicially
declared available for adoption;
(b) The legitimate son/daughter
of one spouse by the other
spouse;
(c) An illegitimate son/daughter
by a qualified adopter to improve
his/her status to that of
legitimacy;
(d) A person of legal age if, prior
to the adoption, said person has
been consistently considered and

HAGUE CONVENTION
Important Principles Recognized:
The child, for the full and harmonious
development of his or her personality, should
grow up in a family environment, in an
atmosphere of happiness, love and understanding
Inter-country adoption may offer the advantage
of a permanent family to a child for whom a
suitable family cannot be found in his or her
State of origin

APPLICABILITY OF CONVENTION

Article 3
The Convention shall apply where a child habitually
resident in one Contracting State ("the State of origin")
has been, is being, or is to be moved to another
Contracting State ("the receiving State")
Movement is either:
after his or her adoption in the State of origin or
for the purposes of such an adoption in the receiving
State or in the State of origin
Article 4
Only to adoptions which create a permanent parent-child
relationship

REQUIREMENTS FOR INTERCOUNTRY ADOPTIONS

State of origin:
must establish that the child is adoptable;
must determine that an inter-country adoption is
in the child's best interests;
must ensure that
the

persons (including the child), institutions and

authorities whose consent is necessary for adoption
have been counseled
their consent was freely given, not induced by
payment or compensation of any kind and have not
been withdrawn
On the part of the mother, the consent was given only
after the birth of the child

RA 8043

Only a legally free child may be the subject of

inter-country adoption
Legally-free

child

voluntarily or involuntarily committed to the Department,

in accordance with theChild and Youth Welfare Code
below fifteen (15) years of age

Last Resort Provision

The

Board shall ensure that all possibilities for

adoption of the child under theFamily Code(now RA
8552) have been exhausted and that inter-country
adoption is in the best interest of the child

RA 8552
Consent Necessary for Adoption:
The adoptee, if ten (10) years of age or over;
The biological parent(s) of the child, if known, or the
legal guardian, or the proper government
instrumentality which has legal custody of the child
The legitimate and adopted sons/daughters, ten (10)
years of age or over, of the adopter(s) and adoptee, if
any
The illegitimate sons/daughters, ten (10) years of age
or over, of the adopter if living with said adopter and
the latter's spouse, if any; and
The spouse, if any, of the person adopting or to be
adopted.

RA 8552
Counseling Services to be Provided by the
Department to:
Biological Parent(s)
before

and after the birth of his/her child.

after he/she has relinquished his/her child for
adoption

Prospective Adoptive Parent(s)

Note:

In Inter-country adoption, Counseling must be

undergone by the prospective adoptive parents in the
receiving state.

Prospective Adoptee

REQUIREMENTS FOR INTER-COUNTRY

ADOPTIONS (HAGUE CONVENTION)
Receiving State:
must determine that the prospective adoptive
parents are eligible and suited to adopt;
must ensure that the prospective adoptive
parents have been counseled as may be
necessary; and
must determine that the child is or will be
authorized to enter and reside permanently in
that State.

RA 8043
Who may Adopt:
An alien or a Filipino citizen permanently residing abroad
has the capacity to act and assume all rights and
responsibilities of parental authority under his national laws,
and has undergone the appropriate counseling from an
accredited counselor in his/her country (Sec. 9 (c) )
is eligible to adopt under his/her national law (Sec. 9 (e))
comes from a country

with whom the Philippines has diplomatic relations

government maintains a similarly authorized and accredited agency
adoption is allowed under his/her national laws (Sec. 9 (h))

Note: These requirements must be alleged when the prospective

adopter files his/her petition (Sec. 30, A.M. No. 02-6-02-SC)

CENTRAL AUTHORITIES AND

ACCREDITED BODIES (CH. III, HAGUE
CONVENTION)
Article 6

A Contracting State shall designate a Central Authority

Functions (Art.9):

collect, preserve and exchange information about the situation of the child and the
prospective adoptive parents, so far as is necessary to complete the adoption;
facilitate, follow and expedite proceedings with a view to obtaining the adoption;
promote the development of adoption counseling and post-adoption services in their States;
provide each other with general evaluation reports about experience with intercountry
adoption;
Reply to justified requests from other Central Authorities for information about a particular
adoption situation.

Article 10- Accredited Bodies

Accreditation- granted to and maintained by bodies demonstrating their competence to

carry out properly the tasks with which they may be entrusted.
must be:

non-profit objectives
Act within limits as may be established by the competent authorities of the State of accreditation

RA 8043
Art. II- Inter-Country Adoption Board
The central authority in matters relating to inter-country
adoption
policy-making body
Composition:
DSWD Secretary (ex officio Chairman)
six (6) members to be appointed by the President
1

psychiatrist or psychologist
2 lawyers who shall have at least the qualifications of a
regional trial court judge, one
1 registered social worker
2 representatives from non-governmental organizations
engaged in child-caring and placement activities

PROCEDURAL REQUIREMENTS
(HAGUE CONVENTION)
1.
2.
3.

4.
5.

Application of Prospective Adopter to the Central

Authority in the State of their habitual residence.
Central Authority of Receiving State-Prepare Report
and Transmit it to the State of Origin
Central Authority of the State of origin- prepare a
Report and transmit to the Central Authority of the
receiving State
Decision by State of Origin re Adoption
Transfer- must be secure and appropriate
circumstances and, if possible, in the company of the
adoptive or prospective adoptive parents

REPORT BY RECEIVING STATE

Contents:

Adopters identity

eligibility and suitability to adopt

Background

family and medical history

social environment

reasons for adoption

ability to undertake an inter-country adoption

characteristics of the children for whom they

would be qualified to care

REPORT BY STATE OF ORIGIN

Information re adoptee: identity, adoptability,

background, social environment, family history,
medical history including that of the child's
family, and any special needs of the child
due consideration to the child's upbringing and
to his or her ethnic, religious and cultural
background
ensure that consents required have been
obtained
determine whether the envisaged placement is
in the best interests of the child.

DECISION BY STATE OF ORIGIN RE

ADOPTION (HAGUE CONVENTION)
Requisites:

the Central Authority of the State of Origin has ensured

that the prospective adoptive parents agree;
the Central Authority of the receiving State has
approved such decision, if it required by either law of
State of Origin/ Receiving State
the Central Authorities of both States have agreed that
the adoption may proceed; and
it was determined that:

prospective adoptive parents are eligible and suited

to adopt

child is or will be authorized to enter and reside

permanently in the receiving State.

PROCEDURE (UNDER RA 8043)

Filing of
Application

Family
Selection/
Matching

Placing/
Transfer

Supervision
of Trial
Custody

Decree of
Adoption

FILING OF APPLICATION
Where: either with the
Philippine Regional Trial Court having
jurisdiction over the child or
Board, through an intermediate agency, whether
governmental or an authorized and accredited
agency, in the country of the prospective adoptive
parents (Sec. 10)

FAMILY SELECTION/ MATCHING

Condition: child cannot be adopted locally.

Personal fetching by adoptive parents or any one
of them
When

the Board is ready to transmit the Placement

Authority to the authorized and accredited intercountry adoption agency and
all the travel documents of the child are ready

SUPERVISED TRIAL CUSTODY

By: The governmental agency or the authorized
and accredited agency in the country of the
adoptive parents
Period: 6 months from the time of placement
Responsibilities of the adopting parents:

submit

a progress report of the child's adjustment

ISSUANCE OF DECREE OF
ADOPTION
Upon lapse of 6 months of Trial Custody
By who: Court where application was filed
Where to be issued: country of the adoptive
parents
a copy of which shall be sent to the Board

EFFECTS OF ADOPTION DECREE

Article 23 (Hague Convention)
An adoption certified by the competent authority of
the State of the adoption as having been made in
accordance with the Convention shall be
recognized by operation of law in the other
Contracting States
Article 24
The recognition of an adoption may be refused in
a Contracting State only if the adoption is
manifestly contrary to its public policy,
taking into account the best interests of the child.

PROCEDURE IN RA 8552
Inquiry at DSWD
Attendance at DSWD Adoption For a
(includes Counseling)
Application for Adoption

Case Study Report

PROCEDURE IN RA 8552

Matching
Placement
Supervised Trial Custody
Home Study Report

PROCEDURE IN RA 8552

Recommendation and Consent

Petition for Adoption
Adoption Decree

CASE STUDY

Made by:
a

licensed social worker of the Department

the social service office of the local government unit
or any child-placing or child-caring agency

Subjects:

adoptee,
his/her

biological parent(s),
the adopter(s),

Task: submitted a report and recommendations

What must be established:

the

adoptee legally available for adoption and that the

documents to support this fact are valid and authentic.
The genuine intentions of the adopter(s)
adoption is in the best interest of the child.

SUPERVISION OF TRIAL CUSTODY

Period: six (6) months
Purpose: parties are expected to adjust
psychologically and emotionally to each other and
establish a bonding relationship.
temporary parental authority shall be vested in the
adopter(s).
The court may motu proprio or upon motion of any
party reduce the trial period if it finds the same to be
in the best interest of the adoptee, stating the
reasons for the reduction of the period.
Alien adopter(s), he/she must complete the six (6)month trial custody except for those given
exemptions

ADOPTION DECREE
Requisites:
publication of the order of hearing has been complied with
no opposition has been interposed to the petition
consideration of the case studies, the qualifications of the
adopter(s), trial custody report and the evidence
submitted
Effectivity:
as of the date the original petition was filed. This
provision shall also apply in case the petitioner(s) dies
before the issuance of the decree of adoption to protect the
interest of the adoptee.
The decree shall state the name by which the child is to be
known.

EFFECTS OF ADOPTION

Parental Authority.
Severed

legal ties between the biological parent(s) and

the adoptee
Legal tie between on the adopter and adoptee.

Legitimacy.
The

adoptee shall be considered the legitimate

son/daughter of the adopter(s) for all intents and
purposes

Succession.
adopters

and the adoptee shall have reciprocal rights of

succession without distinction from legitimate filiation.
if the adoptee and his/her biological parent(s) had left a
will, the law on testamentary succession shall govern.