STUDIES ON SPANISH-PHILIPPINE PRIVATE LAW
Papers of the Private Law of the Philippines and Spain International Scientific Congress

INTERCOUNTRY ADOPTION:
BEST PRACTICES IN THE PHILIPPINE SETTING

Maria Gabriela R. Concepcion
Professor, University of the Philippines
College of Law

THE LEGAL FRAMEWORK AND GUIDING PRINCIPLES OF INTERCOUNTRY ADOPTION IN THE PHILIPPINES

Republic Act 8043, otherwise known as the Intercountry Adoption Act of 1995, is the basic law governing the intercountry adoption  program of the Philippines and was largely crafted following the directives and policies spelled out in two (2)  international instruments, namely:  1)  the UN Convention on the Rights of the Child; and  2)   the  1993 Hague Convention on the Protection of Children and Cooperation In Respect of  Inter-Country Adoption (the “1993 Convention”).

 Under this Act,  the Intercountry Adoption Board (or the ICAB) was created which is the Philippine  Central Authority in matters relating to the intercountry adoption of Filipino children and the policy making body for purposes of carrying out the provisions of  the aforementioned law. 

Pursuant to the guidelines enumerated under the foregoing international instruments, the general policies advocated under the present system  of intercountry adoption in the Philippines,  include the following:

1.   A child should primarily be in the care and custody of  his/her biological/legal parents.  In default of parents, relative adoption should be encouraged, before adoption by unrelated persons  shall be considered. 

2.  If possible,  prevent the unnecessary separation of the     child from the birth parents. Ensure that no hurried decisions  are made before relinquishing parental authority.  For example:

a)      In the process of adoption, counseling is always provided to the birth parents, the prospective adoptive parents and the adoptee as well. 

b)      A birth parent is not bound by an adoption plan before the birth of the child.

c)      Even after a DVC (or Deed of Voluntary Commitment)  is signed- parents have 3 months to  change their minds and reconsider the surrender of the child.  After the 3-month period, however, the decision is irrevocable.

d)      Before adoption is possible, the Department of Social Welfare and Development (DSWD) must certify, after the necessary protocols and safeguards have been observed, that the child is indeed legally available for adoption. (

1. In every case,  the principle  of “exhaustion” must be applied, i.e., efforts must   be exerted to place the child with an adoptive family within the Philippines.
2. Thereafter, the intercountry adoption  of a child must eventually be considered to offer the advantage of a permanent family only when no suitable family can be found domestically and if it will serve and protect his/her fundamental rights.
3.  Whether it be for domestic or intercountry adoption, there must be a  judicious matching of the child with the Prospective Adoptive Parents (the PAPs.

6.   In all cases, there must be minimum standards for child protection and to prevent  the abduction, sale, or trafficking of children.

1. The automatic recognition of Convention Adoption in the receiving state must be ensured.

APPLICATION OF THE GUIDING PRINCIPLES OF EXHAUSTION AND SUBSIDIARITY IN THE INTERCOUNTRY ADOPTION PROCESS IN THE PHILIPPINES

The Philippines adheres to the  “Subsidiarity Principle” as the same is highlighted and defined in the Preamble and  in Article 4(b) of the 1993 Convention. “Subsidiarity” means that a child should be raised by  his or her birth family or extended family, when possible.  If that is not possible, other forms of permanent care in the Philippine should be considered. The Guide to Good Practice under the Hague Convention of 29 May 1993 confirms that: “Only after due consideration has been given to the national solutions should intercountry adoption be considered, and only if it is the child’s best interests.”

Note that the child’s best interests are not necessarily served by keeping a child within the boundaries of his/her country of origin. As such, it is not technically correct either to say that inter-country adoption is a “last resort”.  In light of maintaining and protecting a child’s best interests, the principle of subsidiarity may be interpreted in several ways as follows:

-        maintaining a child in his/her family of origin is important, but not more important than keeping that child free from harm or abuse

-        permanent care by an extended family member may be preferable, but not if carers are wrongly motivated or are unable to meet the needs  (including medical needs) of the child

-        national adoption is preferable, but in the absence of available domestic carers, placement abroad should be considered

-        “national solutions” such as permanent institutionalization  or having several temporary homes in the country of origin, are generally not in the best interests of a child.

In the Philippines, the principles of exhaustion  and subsidiarity are ensured by the Department of Social Welfare and Development  (“DSWD”) which is the competent authority in the Philippines to determine the suitability and availability of a child for adoption.  

A child legally available for adoption refers to a child in whose favor a certification was issued by the DSWD that he/she is legally available for adoption:

(1)     after the fact of abandonment or neglect has been proved through the submission of pertinent documents, or:

(2)     one who was voluntarily committed by his parent/s or legal guardian.

In ensuring that the “best interests principle”  is maintained, the DSWD is  tasked with the primary goal of ensuring that  orphaned, abandoned, neglected and surrendered children are identified and “brought into the system” to find the appropriate local intervention and to guarantee the opportunity to find a permanent family in the soonest time possible.  Failing a domestic solution, the DSWD determines and certifies that a child has  undergone the process of exhaustion  of local solutions -  and  thereafter shall  certify a child as being available for international adoption.

The pursuit of a child’s best interest has been strengthened by the requirement of the administrative issuance of a certificate of adoptability as mandated by Republic Act 9523, which provides that, with the exception of relatives within the 4th degree of consanguinity or affinity and in the case of step-parent adoptions,  a Certificate Declaring a Child Legally Available for Adoption shall be necessary. The new procedure thereunder  is  now purely administrative in nature  and  grants the DSWD Secretary, the power and authority to  verify the allegations of either neglect, abandonment and surrender of a child. This may be deemed a landmark piece of legislation, considering that previous to this amendatory law, the declaration that a child is available for adoption was  a judicial process – an oftentimes unreasonably long and painful process  in the Philippines.  This  may be deemed detrimental to a child’s best interests, considering  that an unduly prolonged  delay in the permanent placement of children may be deemed  a violation of the child’s right to a family guaranteed under the United Nations Convention on the Rights of the Child. Note that while the degree of proof required in an administrative process is less stringent than those required by the courts, the law however requires the same evidentiary requirements required under the old judicial process including publication.

RA 9523, coupled with the DSWD’s policy on de-institutionalization of children has so far ensured the movement of children from institutions.  Ensuring a child’s “adoptability” likewise prevents the possible abduction of, sale of and trafficking in children.

Thereafter, once a child has been  declared  as “ legally free for adoption”, the DSWD undertakes a local matching of a child against its roster of domestic prospective parents. No pre-identification of a non-related child is allowed.  Under Philippine law, domestic matching is an essential, preliminary stage that must be undertaken before inter-country adoption may be considered.

If no local match is available, the child will then be issued a Clearance for Inter-Country Adoption and the child’s dossier shall  be  forwarded to the Intercountry Adoption Board.

THE INTERCOUNTRY ADOPTION PROCESS

As a policy-making authority, the ICAB  sets the guidelines for the manner of selection and matching of prospective adoptive parents and verifies that a child is qualified for adoption. The Board makes the final decisions on adoption applications and matching proposals.  The Board’s other other functions include the following:

1.  Assessment of the Child

Once a child has been cleared for intercountry adoption, the ICAB assesses the completeness of the child’s documents taking into consideration the different requirements of the receiving countries.  When complete, the child is included in a roster of children available for matching. 

            One of the most important measures to protect the child’s  best interests and to combat trafficking in children in to ensure that a child is genuinely adoptable.

2.   The Assessment of Prospective Adoptive Parents (PAPs)

A PAP files an application with the ICAB, either directly or through an intermediary, i.e., the Foreign Accredited Agency (FAA), and assesses the same prior to approval.

The burden to develop safeguards in adoption is a shared responsibility of the country of origin and the receiving state.  While it is necessary to find a common standard, the particular needs and interests of the Filipino child is a responsibility of the ICAB who has developed, through experience, policies on the standards of assessing profiles of adoptive parents.  Notwithstanding the issuance by a sending country of  a document that  the prospective adoptive parents’ are eligible to adopt, it is necessary for the Inter-Country Adoption Board to assess and ensure that the PAP will be able to address the particular social, cultural, spiritual and physical well being of the Filipino child.  

Moreover, the ICAB’s experience on “placement disruptions” has prompted it to require that all applicants for adoption undergo specific psychological testing to be submitted as part of  the PAPs application.  This requirement was initially met with complaints. Subsequently, however, despite the initial, albeit vehement protest, this additional requirement was eventually accepted and complied with. 

Note that it is the responsibility of the ICAB, as the Philippine Central Authority, as well as all other countries of origin, to ensure the best interests of its children and not to  otherwise succumb to the demands of international adoptions.

3. Matching

During the initial matching phase, the ICAB secretariat pre-selects five (5) to ten (10) families in its approved roster for selection and identification by the child’s social worker who will select two (2) families and set a priority for the two.  The families are presented by the Social Worker to the ICAB’s Intercountry Placement Committee (“ICPC”).  

The child’s social worker presents the Child Study Report and ranked PAPs for matching with the child. The participation of the social worker in the matching process is an important feature of the system as the ICAB recognizes that the child’s social worker  is the person most familiar with the child, his temperament  and his/her needs and is  therefor in the best position to assess the type of family that the child can readily bond with.   The identification of second PAPs prevents a prolonged waiting period for the child if the first family chosen is unable to accept the referral.

The ICPC is a panel of professionals composed of the following: a medical doctor (a pediatrician), a social worker, a lawyer, non-governmental organization representative and a psychologist, who initially assesses the selection of families by the social worker and has the opportunity to query the social worker on the characteristics and personality of the child. The ICPC makes recommendations on the matching proposal  of the child  (i.e., approval, proposal for another match, deferment, etc) for the approval of the Board, stating the reasons for the recommendation.

If the Board approves the matching proposal or chooses another family for matching, a notice of matching is sent to the concerned FAA, who shall subsequently inform the PAPs, who shall then notify the FAA in turn of their decision on the matching proposal.

Upon receipt of the PAP’s acceptance of the matching proposal,  the Board shall issue the Placement Authority of the child.  The child shall then be given pre-departure preparation and guidance to minimize the trauma of separation and to ensure that the child shall be physically and emotionally ready to travel and form new relationships with his/her new family.

The PAPs are then required to personally fetch the child from the Philippines.

4. Supervised Trial Custody and Adoption

The FAA shall be responsible for the pre-adoptive placement, care, and family counseling of the child for at least 6 months from arrival of the child in the PAPs residence.  The ICAB requires the submission of Post Placement Reports which refer to three (3) reports submitted over a six (6) month assessment period. These reports relate to the relationship of the child with the PAPs, as well as their health, financial condition and capacity.    Unlike most sending countries where the adoption is finalized before the child leaves the country, the ICAB issues the Placement Authority and requires the submission of the post placement reports to determine whether the issuance of an “Affidavit of Consent to Adoption” is appropriate.  Only upon the families’ receipt of the “Affidavit of Consent” to the adoption will the adoption of the child be allowed to be finalized in the courts of the receiving country.  Close monitoring of the adjustment of the child to the adoptive family for the first six (6) months of the placement is crucial to determine the success of the placement.  The procedure is likewise helpful in cases of “disruptive placements” as these are flagged early in the placement.  The process allows  the ICAB to repatriate the child if necessary, and rematch the child with ease to another family or re-unite the child with kin in cases of relative adoptions.  

5. Post Adoption Services

Given the increasing requests for Post Adoption Services such as a Motherland tour, search and reunion and request for information, the ICAB’s capacity to deliver the services is being strengthened.  As a policy, the request for search and reunion is only undertaken if the child is of legal age (as defined by the receiving country) and has reached the required emotional maturity to undertake the search.  Intensive preparation of the adoptee by his or her foreign accredited agency and preparation of the birthparents by the ICAB is crucial for a positive result of the reunion.  Exception to the stated policy is given where the need for the reunion is essential to the emotional well being of the child and only upon request of the minor’s adoptive parents.

 INTERCOUNTRY ADOPTION PARTNERS: FAAs AND CENTRAL AUTHORITIES

            The ICAB authorizes the accreditation of foreign adoption agencies (“FAAs”) in the receiving countries for the purpose of providing screening, training and preparation of PAP’s to ensure the smooth transition of the child into the new family.

To ensure the quality of assessment of its foreign partners, the ICAB has set minimum requirements for the  authorization of said partners.  Primary among the requirements is that the organization must have a license to operate as an adoption agency from the proper competent authority together with the capacity/authority to carry out international adoptions.  The applicant agency must show a positive five (5) year track record of successful placements without any record of violation of existing laws in their country or other countries they work with.  The governing board and staff of the agency must be competent and responsible child welfare oriented leaders in the community.  The financial status and management of the FAA is assessed based on submitted audited financial statements for the past three (3) years stating the sources of their funding including data on percentage of funds from adoption.  Annual submissions of financial statements are thereafter required.  Aside from desk accreditation, the ICAB undertakes actual visits to the applicant foreign agency to conduct a thorough assessment of the agency.  The actual accreditation visits have resulted in the clarification of issues which cannot possibly be threshed through correspondence. 

For the purpose of re-assessment and re-accreditation, the FAA must show diligence in complying with ICAB’s requirements of the tempering of the number of applications sent to cater to the numbers of the Philippine adoption program and the quality of the applications; the timely submission of request for information and report; the number of case disruptions and compliance with post placement supervision.

There is also the challenge of meeting the  changing profile of Filipino children available for international adoptions.  There has been a growing percentage of the children with some special needs or may be categorized as children for special home finding.  Special home finding may include children with disabilities, medical needs or those with a negative background (i.e., abused children, children of abused mothers, and older children (9 years to 18 years).  The willingness or capacity of the agency to find permanent homes for these types of children may also be an important factor in the decision to accredit/authorize them.  

            To date, the ICAB has a total of 107 accredited foreign adoption agencies, broken-down into the following geographical areas:

                                    Geographical Location  Number

Europe                                    48       
                                               USA                                         29
                                               Asia Pacific                              13
                                               Canada                                     17
                                                           Total                         107

IV.     PROTECTING THE CHILD:  The Value of Cooperation

The end-in-view of every adoption is to provide every neglected, abandoned or surrendered child with a family that will love and care for the child, as well as provide him/her with opportunities for growth and development.  While many ordinary citizens would simply imagine that  the adoption of a child  by PAPs, especially  from the developed countries,  should be encouraged and promoted as it would probably be in the child’s best interest, the escalating incidents of abusive practices such as abduction, buying and trafficking of children requires the cooperation and vigilance of all the partners and stakeholders in the intercountry adoption process.

Under Philippine Law, specifically Rep Act 10364, in cases where the victim is a child, any of the following acts shall also be deemed as attempted trafficking in persons:
(a)     Facilitating the travel of a child who travels alone to a foreign country or territory without valid reason therefor and without the required clearance or permit from the Department of Social Welfare and Development, or a written permit or justification from the child’s parent or legal guardian;
(b)     Executing, for a consideration, an affidavit of consent or a written consent for adoption;
(c)     Recruiting a woman to bear a child for the purpose of selling the child;
(d)     Simulating a birth for the purpose of selling the child; and
(e)     Soliciting a child and acquiring the custody thereof through any means from among hospitals, clinics, nurseries, daycare centers, refugee or evacuation centers, and low-income families, for the purpose of selling the child.

There have already been many horrific incidents where children have been abducted, bought, sold and processed  through the intercountry adoption system.  For example, there is the infamous Jala-jala case in the Philippines where a Singapore based agency  “sourced” babies in the sleepy town of Jala-jala from anywhere from P2000 to P7000 (between $40 to $160).  Some babies were even bought and sold even while in the maternal womb.   Some were separated from their mothers and brought to a safe house and issued bogus birth certificates and travel documents.  They were vaccinated and fattened up for the trip to Singapore where they would be sold to PAPs for about $12000.    Some were brought by their own mothers and personally surrendered to the foreign adoptive parents, while others were transported by women who pretended to be their mothers.

The only way by which these abusive practices, which eventually leave a child scarred for life, may be curtailed is for the sending and receiving countries to cooperate in order that safety mechanisms may be created, maintained and enforced.  Central authorities , for example, should only course adoption applications through FAAs, prohibit private or independent adoptions and ban any form of contact between the PAPs and the child’s guardian.

THE CHILD’S BEST INTEREST: ALWAYS THE PRIMORDIAL CONCERN

The ultimate objective of any adoption is the child’s best interests:  not merely to place a child with adoptive parents – but to make sure that the placement will benefit the child in the long term.  There must be a change in mindset from thinking that a family is entitled to a child- but instead, that it is the child who is entitled to a family.

We note that in terms of intercountry adoption, Spain has always been a leading carer of our nation’s children.  The ICAB, in fact, has received the largest number of applications from Spain in all of Europe.  In terms of geographical location, Europe, on the other hand, has the biggest percentage compared to North America, Canada, Asia and the Pacific, due to the number of  Spanish applications. From only 1 child in the year 2004 there has been quite a noticeable increase in demand  to 76 children  in 2014 (with many peaks and valleys in between)- and it is probably for this reason that we need to increasingly  make sure that these children are protected and cared for – by making sure that they will benefit and be happy  and strengthened by this long journey from Manila to Espana.

Overall, while the Philippines has over a thousand pending applications for intercountry adoptions, the children available for international adoptions have not significantly increased since it has ratified the 1993 convention.  Converse to the figure of availability of children, the number of applications for international adoptions has continued to increase.  However, as discussed in the recent Special Commission of the Hague Convention of 1993, receiving countries must acknowledge their concurrent responsibility to ensure that countries of origin must not be pressured to “produce” children for the growing demand for adoptions.  The primary duty of the country of origin is to find local solutions for the children and only if no solutions exist, to open the opportunity to find a permanent family.  The receiving countries must temper the number and kind of applications it sends to a receiving country to cater to the actual number and profile of children available for adoption.  

It is an established fact that children are susceptible to abuse and neglect.  As a global community, it is our responsibility to ensure that children should be with their own families when possible and have access to the opportunity for a permanent family if none exists.

            The challenge is to persevere in furthering cooperation among all states to pursue the best interest of the world’s children and to prevent the prevalence of abuse and other prohibited or unethical practices.