Adopting a Child from the Philippines Part 2: Intercountry Adoption

Adopting a Child from the Philippines

Part 2: Intercountry Adoption – Who Can Adopt & Who May be Adopted

The Philippine Inter-Country Adoption Act of 1995 (Republic Act No. 8042) and its Implementing Rules and Regulations (IRR) lay down the qualifications of individuals who can adopt as well as the children who can be adopted.

Under Section 27 of the IRR, any non-Filipino or Filipino citizen residing outside the Philippines can adopt if he or she:

1. Is at least twenty-seven (27) years of age and is at least sixteen (16) years older than the child to be adopted at the time of the filing of the application, unless the applicant is the parent by nature of the child to be adopted or is the spouse of such parent by nature;
2. Has the capacity to act and assume all the rights and responsibilities incidental to parental authority under his/her national law;
3. Has undergone appropriate counseling from an accredited counselor in his/her country;
4. Has not been convicted of a crime involving moral turpitude;
5. Is eligible to adopt under his/her national law;
6. Can provide the proper care and support and give the necessary moral values and example to the child and, in the proper case, to all his/her other children;
7. Comes from a country

(i). With whom the Philippines has diplomatic relations;

(ii). Whose government maintains a foreign adoption agency; and

(iii). Whose laws allow adoption; and

8. Files jointly with his/her spouse, if any, who shall have the same qualifications

and none of the disqualifications to adopt as prescribed above.

As can be seen from the foregoing, the adopter must have good moral character, financial capacity, psychological fitness to be a parent, and even good health.

If the adopter is the adoptee’s biological parent or the spouse of the adoptee’s biological parent, the requirements on minimum age of 27 and 16 years age gap between the adopter and adoptee do not apply.

Conviction for a crime does not necessarily disqualify one from adopting as long as the crime does not involve moral turpitude. According to Black’s Law Dictionary, a crime involves moral turpitude if the act is attended with baseness, vileness, or depravity or behavior that gravely violates moral sentiment or it is inherently against good morals and right conduct. Examples are rape, fraud, murder, arson, etc.

Take note also that if the adopters are married, they must jointly adopt as a couple. Here lies a looming legal controversy with respect to same-sex or gay/lesbian couples seeking to adopt. The ICAB, Philippine government agency that processes inter-country adoptions, apparently refuses to accept same-sex couple adoptions on the ground that same-sex marriage is not legal in the Philippines.

It is the position of the Filipino Law Group that nowhere under either RA 8042 or its IRR can be found a prohibition on inter-country adoption by same-sex couples, whether expressly or impliedly. And although same-sex marriage is not legal in the Philippines, Article 26 of the Philippine Family Code expressly provides that the Philippines shall recognize the validity of all marriages celebrated outside the Philippines as long as they are valid where contracted.

Thus, a same-sex marriage in California, which became legal in 2008, should be recognized as valid in the Philippines.

As to who can be adopted via intercountry adoption, Sections 3 and 26 of the IRR provide that only minors below 15 years of age and who have been voluntarily or involuntarily committed to the custody of the Philippine Department of Social Welfare and Development (DSWD) may be adopted. A child relative within the fourth civil degree can also be adopted.

A child is voluntarily committed to the DSWD when the biological parents voluntarily give up custody of their child, as when the parents cannot physically and/or financially take care of the child. A child is involuntarily committed when the parents’ custody over the child is taken away by a court decree.

If the adopters live in the U.S., the adopted child must be found suitable for inter-country adoption under U.S. laws before the child can immigrate to the U.S. For this purpose, the adopters must file an application with the U.S. Citizenship and Immigration Services for determination of suitability of the child.

(Next: Domestic Adoption)