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Official Gazette

Monday, September 26, 2022

Adoption Law ensures best interests of children

Updated: 10:29’ - 27/07/2010

Dr. Nguyen Cong Khanh
Ministry of Justice

 

Adoption is a social phenomenon occurring in all countries. In Vietnam, it is an issue of profoundly humanitarian nature as the country still suffers the aftermaths of war and economic difficulties and people’s incomes remain low. Over the years, the adoption law has made significant contributions to assuring children’s rights to care, nurturing and education in a family environment, promote the humane spirit of the Vietnamese people, and preserve and bring into play the nation’s traditions of mutual affection and assistance.

In the latest period of national development, the adoption law has nevertheless revealed many limitations and loopholes. Adoption-related matters are regulated by different legal documents, including the Civil Code, the Marriage and Family Law, Decree No. 68/2002/ND-CP on marriage and familial relations involving foreign elements, Decree No. 158/2005/ND-CP on civil status registration, and many regulations on citizenship, child protection, care and education and the combat of human trafficking. Some regulations on adoption remain inconsistent and contradictory. The right to adoption which has been affirmed in the Civil Code is not yet adequately specified. Two distinct legal systems exist on domestic adoption and adoption involving foreign elements, resulting in uncoordinated and inconsistent enforcement.

The state administration of adoption is also limited in various aspects. Many cases of adoption were not yet registered though registration serves as a legal basis for protecting the rights and interests of adoptive parents and adopted children. The recognition of war invalids and people with meritorious services to the country as adoptive parents has been abused to enjoy benefits granted by the State. The adoption of ethnic minority children in border areas is rather complicated. No active measures have been implemented to ensure that children are cared fore and brought up in domestic families and restrict adoption by foreigners for financial purposes. Transparency of financial matters in intercountry adoption is poor. The management of foreign adoption institutions based in Vietnam remains limited.

For these reasons, the National Assembly’s passage of the Adoption Law in June is timely and of great significance. The Law has been formulated consistent with the Party line and policies and state laws on the protection of children, creating strict and transparent legal bases for assuring that children are adopted in their best interests, and helping prevent the sale of children for adoption or the abuse of adoption for self-seeking purposes.

For the first time, Vietnam has a single law uniformly governing domestic adoption and adoption involving foreign elements, which emphasizes measures to promote domestic adoption while regarding adoption of children by foreigners as a last resort when domestic adoption cannot be arranged for the child. The Law has perpetuated appropriate provisions of the Civil Code, the Marriage and Family Law and other laws which have been tested in reality, ensuring the consistency and feasibility of the adoption law in harmony with fine national customs and practices and international law and practices. The passage of the Adoption Law also demonstrates the Vietnamese State’s respect for its international commitments in acceding to the International Convention on the Rights of the Child and ensures that adoption is in compliance with the May 29, 1993 Hague Convention on Protection of Children and Cooperation in Intercountry Adoption.

The principles underlying the process of adoption are provided in Article 4 of the Law.

First, the right of children to live in their birth families must be respected in considering adoptions.

This is an internationally recognized principle. Article 3 of the United Nations Declaration on Legal and Social Principles relating to the Protection and Welfare of Children acknowledges that the top priority for children is that they are cared by their natural parents. The Preamble of the United Nations Convention on the Rights of the Child also provides that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community. The Hague Convention also recalls that each State should take, as a matter of priority, appropriate measures to enable the child to remain in the care of his or her birth family.

To live in his/her birth family together with his/her natural parents and other close relatives is the primary right of a child. In considering an adoption, attention must be paid to this right. Placement of a child outside his/her birth family against his/her will, consent and best interests is prohibited.

Second, adoption must ensure the lawful rights and interests of the child to be adopted and his/her prospective adoptive parents, and effected on the basis of free consent, equality and non-discrimination between males and females and compliance with the law and social morality.

In adoptions, in addition to assuring the benefits of the child to be adopted, due consideration should also be given to the interests of adoptive parents to ensure the harmony of the interests of both parties. Adoption must be effected on the basis of the parties’ free consents, without discrimination between prospective adoptive parents, male or female, single or married, and between adopted children, boys or girls. In other words, all adoption relations established on the basis of discrimination between males and females are against the law and social morality and shall not be recognized.

Third, adoption by foreigners is allowed only when no substitute family can be found within the country.

This principle is clearly stated in the Hague Convention, which recognizes that intercountry 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.

If the upbringing of a child in his/her family is impossible, substitute measures of caring for him or her in the country must be taken into account, including adoption. Only after due consideration has been given to these measures can intercountry adoption be allowed in the best interest of the child. The Adoption Law recognizes this principle for the ultimate objective of finding a permanent family for a child first of all in his/her country. Strict adherence of this principle will help prevent the preference of “outward” adoption to domestic adoption, a long-existing problem in Vietnam.

The Law provides several measures for assuring the placement of a child in a substitute family in the country, where the child can be cared for, brought up and educated in the same language, traditions, customs and culture. The finding of families for orphans, abandoned and disadvantaged children is carried out at three levels. At the commune level, this will be effected by posting at the offices of commune-level People’s Committees for 60 days. After this period of time, if no substitute family can be found, the child will be placed in a child welfare center under law. At the provincial level, the finding of substitute families will be carried out by provincial-level Justice Departments by making announcements in the local mass media for 60 days. After this time, if no family can be found, provincial-level Departments of Justice will report it to the Ministry of Justice. The Ministry of Justice, at the central level, will find substitute families for children nationwide through posting announcements on its portal. Only after these announcements are posted in vain can children be recommended for adoption by foreigners.

The Law further stipulates that even though the time limit for posting announcements for finding a substitute family in the country for a child has expired and the child is being considered for adoption by foreigners (but no prospective adoptive parents have yet been introduced), if a person living in the country wants to adopt the child, this adoption request will be settled first (Article 36).

The Law also provides that a Vietnamese who wishes to adopt a child but has not yet found an appropriate child may register his/her need with the provincial-level Justice Department of the locality in which he/she resides. If there is a child for adoption, the provincial-level Department of Justice will introduce this person to the commune-level People’s Committee of the locality in which the child lives.

The order and procedures for adoption within the country are clearly provided in the Law as a guarantee for facilitating adoption.

The Law makes uniform provisions on the eligibility of prospective adoptive parents. It raises the maximum age of children allowed to be adopted from 15 to 16 years in accordance with the Law on Child Protection and Care. For children aged between full 16 years and under 18 years, their adoption may be allowed if adoptive parents are their step mothers or fathers, uncles or aunts. These provisions create equal opportunities for the child to have a substitute family in the country or abroad, contributing to abolishing discrimination between domestic and intercountry adoptions.

Intercountry adoption fees and expenses are made transparent under the Law. The Law says that prospective adoptive parents, Vietnamese and foreign, must pay adoption registration fees according to Government regulations (Article 12). In addition, foreign non-residents wishing to adopt Vietnamese children must pay a sum of money to partially cover expenses for intercountry adoption, including expenses for rearing, caring for and educating a child from the time he/she is introduced for adoption to the time of completion of all procedures for delivering and receiving the adopted child; expenses for verifying the origin of prospective adoptive parents, expenses for delivering and receiving the adopted child, and reasonable remuneration for employees of child welfare centers. The Law assigns the Government to issue specific regulations on the competence to collect these fees, cases of fee reduction and exemption and the management and use of collected fees and expenses. The Law provides that the State will encourage organizations and individuals to provide humanitarian assistance for the raising, care and education of disadvantaged children and this assistance will not affect their adoption (Article 7).

These provisions have been appreciated by UNICEF and countries with cooperative relations with Vietnam on adoption as they demonstrate Vietnam’s determination in fighting all self-seeking acts related to adoption.

The current practice is that children are introduced by child welfare centers for adoption. According to local reports and many countries’ statistics, since these centers are allowed to receive children, accept humanitarian assistance from foreign organizations and individuals and introduce children for adoption, it’s easy for them to commit negative practices and reach under-the-table agreements in those introductions. To tackle this problem, the Law provides that recommending children for adoption by foreigners is the duty of provincial-level Departments of Justice. To perform this duty, provincial-level Departments of Justice must base themselves on criteria stipulated in Article 35 of the Law and report their introduction proposals to provincial-level People’s Committees. After obtaining approval of provincial-level People’s Committees, provincial-level Departments of Justice will report their introductions to the Ministry of Justice for notification to prospective adoptive parents.

Government decrees on civil status registration stipulate that unregistered adoptions will be invalid. However, for various reasons, may cases of adoption have not been registered. Therefore, in order to protect the interests of the parties in adoption relations, especially children, the Law provides that adoptions between Vietnamese citizens which have not yet been registered with competent authorities by the effective date of this Law will be allowed to be registered within five years from that date if (i) the parties are eligible for adoption under the law at the time their adoption relations were established; (ii) the parent-child relationship still exists and they are still alive by the effective time of the Law and (iii) there are rearing and caring relations between the adoptive parents and the adopted child as between natural parents and their child (Article 50). The Law assigns the Government to issue regulations on procedures for registering these adoptions, ensuring convenience and suitability to the practical conditions of people in different areas and regions. This is a transitional measure. After the effective date of the Law, adoptions that are not registered will not be recognized.

The Law provides clear and transparent conditions for licensing foreign adoption institutions to operate in Vietnam. Those institutions satisfying all conditions specified in Article 43 of the Law will be considered for a license to operate in the country. The Government will issue detailed guidance on procedures for granting, extending, modifying, renewing and revoking these licenses.

The Adoption Law will take effect on January 1, 2011.-

VNL_KH1 

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