On 21 Feburary 2019, the President of the Philippines signed into Law Republic Act No. 11222, entitled An Act Allowing the Rectification of Simulated Birth Records and Prescribing Administrative Adoption Proceedings for the Purpose.
1) WHAT IS THE NEW ADOPTION LAW IN A NUTSHELL?
The law provides for the following :
1) It extends the amnesty for violation of the law against simulation of births under the Revised Penal Code to ten (10) years from 21 February 2019;
2) Allows the parents in the simulated birth certificate to adopt the subject child as long as the child has been treated as their own child and the adoption will be for the best interests of the child;
3) Allows for a simplified process of administrative adoption in cases of simulated births without going to court.
2) WHAT IS THE AMNESTY FOR SIMULATION OF BIRTH UNDER THE NEW ADOPTION LAW IN THE PHILIPPINES?
The Revised Penal Code of the Philippine punishes the simulation of the birth of a child, as follows:
SIMULATION OF BIRTHS AND USURPATION OF CIVIL STATUS
Art. 347. Simulation of births, substitution of one child for another and concealment or abandonment of a legitimate child. — The simulation of births and the substitution of one child for another shall be punished by prision mayor and a fine of not exceeding 1,000 pesos.
The same penalties shall be imposed upon any person who shall conceal or abandon any legitimate child with intent to cause such child to lose its civil status.
Any physician or surgeon or public officer who, in violation of the duties of his profession or office, shall cooperate in the execution of any of the crimes mentioned in the two next preceding paragraphs, shall suffer the penalties therein prescribed and also the penalty of temporary special disqualification.
Art. 348. Usurpation of civil status. — The penalty of prision mayor shall be imposed upon any person who shall usurp the civil status of another, should he do so for the purpose of defrauding the offended part or his heirs; otherwise, the penalty of prision correccional in its medium and maximum periods shall be imposed.
The new law provides for a 10-year amnesty for those who violated the above law under the following conditions:
Section 4. Rectification of Simulated Birth Record.— Notwithstanding any provision of law to the contrary, a person or persons who, prior to the effectivity of this Act, simulated the birth of a child, and those who cooperated in the execution of such simulation, shall not be criminally, civilly, or administratively liable for such act: Provided, That the simulation of birth was made for the best interest of the child and that the child has been consistently considered and treated by such person or persons as her, his, or their own daughter or son: Provided, further, That such person or persons has or have filed a petition for adoption with an application for the rectification of the simulated birth record within ten (10) years from the effectivity of this Act: Provided, finally, That all the benefits of this Act shall also apply to adult adoptees.
This development is not new , there having been previous amnesties from prosecution under the law against simulations of birth in the past. It is nonetheless significant in that it is for a longer period. The last amnesty was good only for five (5) years under Republic Act No. 8552, also known as the Domestic Adoption Act of 1998. The amnesty was good only from 1998 to 2003. Moves to extend the amnesty were made in the following years but no law made it out of Congress for that purpose. In the meantime, the Supreme Court passed Rules for Domestic Adoptions which allowed for the rectification of simulated births even beyond 2003.
3) WHAT DOES THE NEW LAW SAY ABOUT ADOPTION OF CHILDREN WHOSE BIRTHS WERE SIMULATED?
Previous to RA 11222, children whose births were simulated could be adopted by filing a Petition for Adoption in court after going through an administrative process supervised by the Department of Social Welfare and Development which involves Pre-Adoption counselling, Matching, and Trial Custody.
The law now provides for an administrative process of adoption which will allow for the legal adoption of a child whose birth was simulated without going through the lengthy and expensive process of a court adoption. This is a very innovative feature of the new law and reflects developments in other countries which do away with courts in adjudicating the adoption of children. Note must be taken , however, that an administrative adoption will be allowed only for cases involving simulations of birth that were made prior to 21 February 2019 and does not affect the process of judicial adoption in cases of abandoned children, consensual adoption where the biological parents agree to have a child adopted, or in cases of intercountry adoption under the Hague Convention.
4) WHAT ARE THE REQUIREMENTS FOR ADMINISTRATIVE ADOPTION AND RECTIFICATION OF SIMULATED BIRTH UNDER THE NEW LAW?
1) Simulation of birth must have occurred prior to the effectivity of the law;
2) The adoptee must have lived with the prospective adopter at least 3 years before the law took effect;
3) That a certificate declaring the child legally available for adoption (CDCLAA) is issued by the DSWD in favor of such child;
4) The petition for adoption and rectification of simulated birth must have been filed within ten (10) years from the effectivity of the law;
5) WHAT ARE THE QUALIFICATIONS OF THE ADOPTER UNDER THE NEW LAW?
Section 7. Personal Qualifications.— Adopters must:
(a) Be Filipino citizens;
(b) Be of legal age;
(c) Possess full civil capacity and legal rights;
(d) Be of good moral character;
(e) Have not been convicted of any crime involving moral turpitude;
(f) Be emotionally and psychologically capable of caring for children; and
(g) Be in a position to support and care for the child in keeping with the means of the family.
In case of adoption by a married couple, where one of the adopters is a foreign national married to a Filipino, the foreign national must have been residing in the Philippines for at least three (3) continuous years prior to the filing of the petition for adoption and application for rectification of simulated birth record.
6) WHAT ARE THE QUALIFICATIONS OF THE ADOPTEE UNDER THE NEW LAW?
Child refers to a person below eighteen (18) years of age, or a person eighteen (18) years of age or over who is unable to fully take care of herself or himself or protect herself or himself from abuse, neglect, cruelty, exploitation, or discrimination because of a physical or mental disability or condition, whose birth was simulated.
7) WHOSE CONSENT ARE REQUIRED UNDER THE LAW?
Section 8. Required Consent.— After being properly counseled and informed of the right to give or withhold approval of the adoption, the written consent of the following shall be required:
(a) The adoptee, if ten (10) years of age or over;
(b) The legitimate and adopted daughters and sons, ten (10) years of age or over, of the adopter and adoptee, if any;
(c) The illegitimate daughters and sons, ten (10) years of age or over, of the adopter if living with said adopter and the latter’s spouse, if any; and
(d) The spouse, if any, of the adoptee.
8) WHAT IS THE PROCEDURE FOR ADMINISTRATIVE ADOPTION?
Section 9. Petition.— The petition for adoption with an application for rectification of simulated birth record shall be in the form of an affidavit and shall be subscribed and sworn to by the petitioner or petitioners before any person authorized by law to administer affirmations and oaths. It shall state the facts necessary to establish the merits of the petition, and the circumstances surrounding the simulation of the birth of the child. The petition shall be supported by the following:
(a) A copy of simulated birth or foundling certificate of the child;
(b) Affidavit of admission if the simulation of birth was done by a third person;
(c) Certification issued and signed by the punong barangay attesting that the petitioner or petitioners is a resident or are residents of the barangay, and that the child has been living with the petitioner or petitioners for at least three (3) years prior to the effectivity of this Act;
(d) Affidavits of at least two (2) disinterested persons, who reside in the same barangay where the child resides, attesting that the child has been living with the petitioner for at least three (3) years prior to the effectivity of this Act;
(e) CDCLAA issued by the DSWD; and
(f) Photographs of the child and the petitioner or petitioners taken within the last three (3) months prior to the filing of the petition.
A CDCLAA shall no longer be required if the adoptee is already an adult or a relative of the adopter within the fourth degree of consanguinity or affinity.
Section 10. Adoption Process.— The petition shall be filed with the Office of the Social Welfare and Development Officer (SWDO) of the city or municipality where the child resides. The SWDO shall have seven (7) days to examine the petition and its supporting documents and determine whether the same is sufficient in form and substance. If the SWDO finds that the petition is insufficient in form or substance, the SWDO shall return the same to the petitioner with a written explanation of its insufficiency. If the SWDO finds the petition sufficient in form and substance, the SWDO shall forward the petition and the supporting documents within three (3) days to the Regional Director.
The Regional Director shall review the petition, establish the identity of the child, and prepare the recommendation on the petition not later than thirty (30) days from receipt thereof. The Regional Director may require the petitioner to submit additional information or evidence to support the petition. The failure of the petitioner to comply with such request shall not preclude the Regional Director from acting on the petition based on the evidence on hand.
The Regional Director shall transmit to the Secretary the recommendation on the petition together with a copy of the petition and supporting documents.
The Secretary shall act and decide on the petition within thirty (30) days from receipt of the recommendation of the Regional Director.
Section 11. Order of Adoption.— If the Secretary determines that the adoption shall redound to the best interest of the child, an order of adoption shall be issued which shall take effect on the date the petition was filed with the Office of the SWDO, even if the petitioner dies before its issuance.
9) WHAT ARE THE LEGAL EFFECTS OF ADMINISTRATIVE ADOPTION?
Section 15. Legitimacy.— The adoptee shall be considered the legitimate daughter or son of the adopter for all intents and purposes and as such is entitled to all the rights and obligations provided by law to legitimate daughters or sons 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.
Section 16. Parental Authority.— Except where a biological parent is the spouse of the adopter, all legal ties between the biological parents and the adoptee shall be severed and the same shall then be vested in the adopter.
Section 17. Succession.— In legal and intestate succession, the adopter and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. However, if the adoptee and her or his biological parents left a will, the law on testamentary succession shall govern.
10) CAN THE ADMINSTATIVE ADOPTION BE RESCINDED OR REVOKED?
Section 18. Grounds for Rescission.— Upon petition of the adoptee, with the assistance of the city or municipal SWDO or the DSWD if a minor or if over eighteen (18) years of age but is incapacitated, the adoption may be rescinded on any of the following grounds committed by the adopter:
(a) Repeated physical or verbal maltreatment by the adopter;
(b) Attempt on the life of the adoptee;
(c) Sexual assault or violence;
(d) Abandonment and failure to comply with parental obligations; or
(e) Other acts that are detrimental to the psychological and emotional development of the adoptee.
Adoption, being in the best interest of the child, shall not be subject to rescission by the adopter. However, the adopter may disinherit the adoptee for causes provided in Article 919 of the Civil Code.
Section 19. Rescission of Administrative Adoption.— The process for administrative adoption as provided under Section 10 of this Act shall apply to the rescission of administrative adoption: Provided, That the concerned SWDO, Regional Director, and the Secretary shall act immediately on the petition for rescission bearing in mind the best interest of the child.
The Secretary shall furnish a copy of the order of rescission to the concerned DSWD Regional Office, which shall in turn provide copies to the petitioner, the concerned agencies and the concerned local civil registrar. Thereafter, the concerned local civil registrar shall cancel the new certificate of birth of the adoptee, and restore the adoptee’s rectified birth certificate bearing the name/s of the biological parents, or the foundling certificate, as the case may be.
Section 20. Effects of Rescission.— If the petition for rescission of administrative adoption is granted by the Secretary, the parental authority of the adoptee’s biological parents, if known, shall be restored if the adoptee is still a minor or incapacitated. The reciprocal rights and obligations of the adopter and the adoptee to each other shall be extinguished.
Successional rights shall revert to its status prior to adoption, but only as of the date of judgment of administrative rescission. Vested rights acquired prior to administrative rescission shall be respected.
All the foregoing effects of rescission of adoption shall be without prejudice to the penalties imposable under the Revised Penal Code if the criminal acts are proven.