Adoption (from Latin adoptio ) or adoption instead of a child or adoption as a child describes the legal establishment of a parent-child relationship between the adoptive and the child regardless of biological descent . Both physically related and physically unrelated persons can be adopted; The latter legally take the place of a relative in an adoptive family. The family law relationships between the adopted child and his or her parents of origin generally expire. When adopting adults or close relatives, partially different regulations apply.
The legal institution of adoption came into the German-speaking area with Roman law (for adoptio see Adoption in the Roman Empire ). The adoptive emperorship represented a special form : It was a period of the Roman Empire, in which the succession in the rule was regularly determined by adoption (98 to 180 AD). It was about the selection of the most suitable candidate as successor. Modern research has put this idealizing view into perspective. In England, where Roman law had very little input, it was still unknown at the end of the 19th century.
In France it was only introduced by Napoleon I through the Civil Code . There, adoption was more restricted because, according to him, only adults can be adopted instead of children, and only if they either saved the life of the adoptive father or were provided with maintenance by him for six years without interruption during their minority .
In Austria , as in Prussia, a judicial confirmation of the adoption contract was required. Thus, the Prussian land law determined that the legal relationships between the adopted and their biological father should not be changed in any way through the adoption, that the adoptive child acquires all the rights of a biological child against the adoptive father, but not vice versa, in that the adoptive father does not Receives claims on the child's property. Furthermore, in Prussia the adoption of a child always had to take place in a written contract and in court, and only people over 50 years of age were allowed to adopt.
In addition to a court contract, the Saxon civil code also required the approval of the sovereign, who, however, was able to exempt from the requirement of 50 years of age on the part of the adopting party and the age difference of at least 18 years. The fathers were allowed to help their illegitimate children not only through legitimation but also through adoption to the rights of legitimate children.
Legal situation in individual countries and legal systems
The following countries sometimes have different regulations:
Islamic legal area
In countries that follow the conventional interpretation of Islamic law ( Sharia ), legal adoption according to western standards is not possible (except Indonesia, Malaysia, Somalia, Tunisia and Turkey). This results from the tradition of the Koran, so in sura 33: al-Ahzab (4–5) one speaks of “nominal sons” (translated to “adoptive sons”), whom God “did not make your (real) sons”. Such children are in no way related to their adoptive family. The admission and care of orphans is nevertheless regarded as religiously meritorious and legally regulated under the name " Kafala "; but this does not establish any legal relationship and rather corresponds to a guardianship relationship .
This regulation has led to problems with the recognition of children adopted in Islamic countries when families are relocated to Europe. The European Court of Human Rights confirmed the French authorities against the recognition of an adoption relationship based on a Kafala decision in Algeria .
Supranational regulations and agreements
Hague Convention on International Adoption
The Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption (Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption) aims to ensure the best interests of the child and the Preservation of fundamental rights in international adoptions, in particular the prevention of child trafficking by observing professional standards in international adoptions, cooperation between the contracting states exclusively via central authorities by means of a standardized procedure and ensuring mutual recognition of adoption decisions in all contracting states.
Each state party is required to make efforts to ensure that a child can remain in his or her family of origin. International adoption is only considered as the last step. In any case, there is an administrative or judicial decision on a case-by-case basis, according to the national law of the nation states of the child and parents. In Germany, the Federal Central Agency for International Adoption is responsible.
European Convention on the Adoption of Children
The European Convention on the Adoption of Children of the Council of Europe of April 24, 1967 was signed by 19 states and ratified by 16 states, including the Federal Republic of Germany. A revised version of this convention has so far (status: February 2013) eight member states of the Council of Europe signed and seven states ratified, but not Germany.
Statistics on adoption
In Germany, the number of adoptions fell between 1994 and 2009. In 2008, 2950 children from Germany and 1137 children from abroad were adopted. In 2011 the number of adoptions stabilized. 4060 children were adopted. This is an increase of one percent compared to 2010. In 2012, the number of adoptions fell slightly again. A total of 3886 children were adopted. In the United States, 13,000 foreign children were adopted in 2009. That is more than in all other countries in the world combined.
Adoptions based on the understanding that a child grows up with people who are not the biological parents but who raise the child according to local norms of the parent-child relationship probably existed in all societies at all times. Transnational adoptions, on the other hand, are a relatively new phenomenon in the 20th century. After the end of the Second World War, the Americans felt a responsibility to thousands of war-related orphans in Europe, especially in Germany and Greece, and adopted them under the US Displaced People's Act of 1948 and the Refugee Act of 1953.
The second wave of adoption occurred after the Korean War, which also left many children orphaned. Between 1953 and 1962, around 15,000 children were adopted, mainly from Korea and other Asian countries. There was also the fact that these children - in contrast to the adopted children of the Second World War - outwardly differed greatly from their adoptive parents. Some of the adopted children also emerged from relationships between Korean women and American soldiers.
The primary motivation for an adoption at that time was not one's own childlessness, but a moral responsibility towards the orphans in general and the anger about the treatment of those 'mixed race children' in their countries of origin who were treated there as non-persons. However, this rather philanthropic attitude has changed over the years, so that nowadays transnational adoptions are aimed primarily at childless couples. The countries of origin now also stretch across the globe, with poor countries mostly adopting into the rich. In addition, in many European countries the number of children adopted domestically has fallen drastically in the last few decades, among other things due to the spread of contraceptives and the socially and economically better position of single mothers and the preference for foster care instead of adoption. In addition, the rates of infertility rose, so that many couples were dependent on transnational adoptions.
The numerous actors involved in the process of transnational adoption and the relationships between them range from the private to the macro-political level on a global level. Only some of the relationships are mentioned here, such as those between nation states, between international and national authorities, between the expecting parents and the public authorities that decide on their application and, above all, the relationship between the adoptive child and his adoptive parents or his biological parents.
In addition to the legal hurdles, Howell places particular emphasis on the social processes that are necessary to successfully carry out a transnational adoption. In this context she cites her concept of kinning : “By kinning I mean the process by which a fetus or newborn child is brought into a significant and permanent relationship with a group of people, and the connection is expressed in a conventional kin idiom ". Kinning, she writes, consists of three aspects:
- make related through nature ("kin by nature")
- make related through care ("kin by nurture")
- to make related by the law ("kin by law")
Adoptions in Europe are primarily determined by the latter two.
In the context of adoptions, it is first of all necessary that the person to be adopted is de-kinning . H. that previous family ties have to be broken or nonexistent, as is the case with newborns who are given up for adoption immediately after birth. According to Howell, transnational adoptions are possible because the children who are given up for adoption are “naked” in the social sense: “The child is denuded of all kinship”, a “non-person” left by their previous relatives ( abandoned ). In the further course of the adoption such an autonomous, non-social individual again experiences the process of kinnings , which equips them with a new set of relatives and makes them a related person in the adoptive family.
Barbara Yngvesson also shows the central importance of the dissolution of old kinship relationships: The radical American variant provides for previous kinship relationships to be completely deleted in the case of adoptions and all references to connections to the family of origin to be removed. Through the construction of apparently genealogical relationships to the adoptive family, a natural relationship should arise, at least on paper. For this, the adoptive parents are entered in the child's birth certificate as the birth parents, and the birth mother is virtually deleted.
In some cases, the boundaries between transnational adoptions and local child foster care, which are otherwise differentiated in the literature, are sometimes blurred. In these cases Howell's concept is only applicable in relation to the legal component. For example, if a Ghanaian woman who lives in Europe wants to bring her niece to take care of her in Europe, from her point of view this would be a child foster care. In order to meet the citizenship requirements, she would adopt them. Such transnational adoptions, which from the point of view of those affected actually only allow child care, are becoming more common.
In the stepchild adoption the adopter is a parent of the adoptee married or partnered . What is special about the stepchild adoption is that - unlike other adoptions - the legal descent relationship to the parent married or partnered with the adopting parent is maintained and only the descent relationship to the other biological parent is ended. This makes the child a common child of the spouses or life partners.
In a decision of March 23, 2005 (Az .: XII ZB 10/03) , the Federal Court of Justice set high requirements for stepchild adoptions against the will of a biological parent in Germany . In addition to the general requirements for the substitution of consent for child adoption by the guardianship court , the adoption must offer such a significant advantage for the child that a parent who cared for it would not object. So if the father's rights of access are thwarted by adoption or the stepfather-child relationship is legally secured, this is not sufficient. The Federal Constitutional Court took in a subsequent decision to the Supreme Court ruling in agreement terms.
Stepchild adoption has long been a privilege of married couples. The Life Partnership Act opened it to same-sex couples in Germany in 2001 (LPartG § 9 Paragraph 7). However, the Austrian law on registered partnerships passed in 2009 did not make this possible. On February 19, 2013, the European Court of Human Rights reprimanded this ban in Austria. The federal government then announced a new bill that would allow the adoption of stepchildren. The law on the permission to adopt the stepchild was passed in parliament and came into force in Austria on August 1, 2013.
In a decision dated February 8, 2017, the Federal Court of Justice ruled out that the adoption of a stepchild as part of an illegitimate partnership could result in both illegitimate partners becoming parents of the child. On March 26, 2019, however, the Federal Constitutional Court ruled that this general exclusion of unmarried partners from stepchild adoption is unconstitutional. The legislature must adopt a new regulation by March 31, 2020, until then the previous regulations of Section 1754 Paragraphs 1 and 2 BGB and Section 1755 Paragraph 1 Clause 2 and Paragraph 2 BGB may no longer be applied.
On February 13, 2020, stepchild adoption by unmarried couples was made possible by parliament in Germany. The new regulation in Section 1766a of the German Civil Code (BGB) provides that unmarried couples have the option of adopting stepchildren if they have been living together for at least four years or are parents of a joint child with this child in a marriage-like manner.
Even an adult can be accepted as a child under German law. The prerequisite is that a parent-child relationship has already arisen between the adopting (step-) parent and the adopting (step-) child (Section 1767 (1) BGB ). Adult adoption does not mean that the adoptee has to give up ties to his / her birth parents. In contrast to the adoption of minors, an adult who is of legal age (and his descendants) is basically only related to the adopting parent, but not to his or her family (Section 1770 (1) BGB). The adult adoption thus has only fewer inheritance consequences than the adoption of a child. The children adopted in this way (and their descendants) are thus entitled to inherit twice. They are then the legal heirs of both their birth parents (as the original family) and of the other adopting partner.
The blood relatives of the adults adopted in this way continue to be related to them and are entitled to inherit (Section 1770 (2) BGB). However, this adoption does not result in any relationship or inheritance entitlement between the adopted stepchildren and the other blood-related family of the adopting (step) parent.
Adoption by same-sex couples
Adoption of partner instead of marriage
Before the registered civil partnership was anchored in law , it was not uncommon for one of the partners in a same-sex relationship to adopt the other in order to confirm their mutual affiliation and to create a legal basis, for example with regard to inheritance law. When homosexuality was forbidden or immoral, this was probably done to cover up the true motives for living together. Gustaf Gründgens and Robert T. Odeman are prominent examples of same-sex adults adopting, as is the lesbian granddaughter of IBM founder Watson.
Adoption of a child
By same-sex couples
The question of whether same-sex couples should be allowed to adopt children repeatedly provokes heated discussions.
In Germany , same-sex couples have been able to adopt stepchildren since 2005, so that children can now legally have two parents of the same sex. The joint adoption of children was not legally possible for same-sex couples ( life partners ) until 2017. On the other hand, the Federal Constitutional Court declared the restriction of the possibility for registered civil partners to subsequently adopt a child who had already been adopted by a civil partner by the other civil partner (successive adoption) to be unconstitutional. The Amendment Act of June 20, 2014 implements the decision of the Federal Constitutional Court. Same-sex couples have been able to marry since October 2017 , which means that they can also jointly adopt non-biological children.
Joint adoption by same-sex couples is now permitted in the following European countries: Andorra , Belgium , Denmark , Germany (from October 1, 2017), Finland , France , Great Britain , Ireland , Iceland , Croatia , Luxembourg , Malta , Netherlands , Norway , Austria (from 2016), Sweden , Spain and Portugal (from 2016). Only one stepchild adoption is allowed in Estonia , Italy , Switzerland and Slovenia .
Outside Europe, joint adoption is permitted in Canada , South Africa , Israel , Argentina , Brazil , New Zealand , Uruguay , the United States (exception: Mississippi ), Colombia , Australia and parts of Mexico .
In 2002, the European Court of Human Rights (ECHR) still rejected adoption by individuals:
"A child should be cared for with a family, not a family with a child."
In January 2008, however, the ECHR ruled that homosexual people should not be denied access to adoption because of their homosexuality. The ruling states that all laws and regulations in the member states of the Council of Europe which refuse to approve an adoption due to the homosexual orientation of the adoptive person violate Article 14 of the European Convention on Human Rights (ECHR). Insofar as a member state of the Council of Europe permits adoption by an individual, this must be granted in the member states of the European Council regardless of sexual orientation.
Practices in other countries
In many societies - especially outside of Europe and America - adoptions are negotiated at the local level. For example, they can be associated with a ceremony that symbolizes the reception of a real heir through a sham delivery, suckling the mother's breast or the thumb. It should be noted that the concept of adoption quickly reaches its limits in many cases and can only describe local practices to a limited extent. See the article on foster child .
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