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Recent Amendment of China's Adoption
Law
x --An
Overview
Changes Broaden Opportunity
For China's Abandoned Children
To Be Adopted
by Laura A. Cecere, MSW, JD, LLM
The Seventh National People's Congress of the People's
Republic of China originally established the Current Adoption
Law of China on December 29, 1991 (effective April 1, 1992).
On November 4, 1998, the Ninth National People's Congress amended
this law, effective April 1, 1999, in several ways relevant to
foreign adopters. The adoption law applies across the board to
all adoptions in the PRC; it includes adoptions of orphaned,
abandoned, and handicapped children in social welfare institutions,
adoptions of blood relatives and step-children, and adoptions
of nonrelated children still living with their birth families
or guardians. Please note that although the law applies to both
domestic and intercountry adoptions, I will discuss below only
those amendments that have relevance to most foreign adopters.
The most significant change for foreign adopters in China's adoption
law is that it allows another exception to the adopter-must-be-childless
requirement. Previously, the only exceptions to this requirement
were if the family adopted a child whose parents are deceased
or a child who has a special need. The law has been amended to
add another exception: abandoned children "whose parents
cannot be ascertained or found (and who are) under the care of
social welfare institutions." Thus, adopters are still required
to be childless to adopt a healthy child, unless that child has
a special need, has been orphaned, or has been abandoned and
is in the care of a social welfare institute. (Article 8)
Similarly, the amendments exempt the adoption of abandoned children
from the requirement that an adopter may adopt only one child.
(Article 8) While the application of this provision is not clear
as written in the law, the CCAA has indicated, as of this writing,
that it will consider on a case-by-case basis, permitting foreigners
to adopt more than one abandoned child at a time.
Another significant change requires all adopters to be 30 years
of age or older. This provision lowers the minimum age to adopt
a healthy child from 35 to 30. However, it also removes the exception
which formerly allowed under-aged adopters to adopt special needs
children. After April 1st, no one under age 30 may adopt any
type of child at all. (Article 8)
Another change adds a new medical requirement for all adopters.
To qualify to adopt, all adopters must also "not suffer
from diseases considered medically unfit for adopting children."
(Article 6) In light of the new medical form* instituted by the
CCAA for all adopters, it will be very difficult to circumvent
this new rule.
The adoption no longer needs to be notarized in China, although
the Notary Department is required to do so if any of the parties
request it. It is probably advisable for foreigners to continue
to do this since notarization has a legal effect not unlike an
administrative court order here in the U.S. Accordingly, the
effective date of the adoption has been moved from the day of
notarization to the day of registration. (Articles 15, 21)
The amendments include a new public notice requirement. In an
adoption involving an abandoned child, "civil affairs departments
handling the registration shall issue a public notice of the
adoption before the registration." (Article 15) It remains
to be seen how this requirement will be implemented in China,
but, at this writing, the CCAA does not believe it will have
any effect on its intercountry adoption process.
The new law also adds the requirement that "the principal
department of the foreigner's country of residence" must
examine and agree to an adoption by the foreigner. (Article 21)
It is hoped that the INS pre-approval of U.S. applicants will
satisfy this requirement, even though the U.S. may nevertheless
deny a U.S. visa for the child after the adoption if the parents
fail to meet the I-864 conditions.
There continues to be no upper age limit for adopters. As before,
a single man adopting a female child must be at least 40 years
older than the child, but, otherwise, there continues to be no
formula, in either the adoption law or the CCAA rules, relating
the adoptee's age to the age of the adoptive parents. There is
also no change in the provision that qualifies which children
are available for adoption: only children under age 14 who have
been orphaned (parents deceased) or abandoned or whose parents
are unable to raise them due to unusual difficulties. Children
10 or older must still consent to the adoption. Also unchanged,
the only parties that may place out children for adoption continue
to be an orphan's guardian(s), a social welfare institute, or
the parents of a child whom they are unable to raise. Adopters
must still be childless (unless adopting an orphaned, abandoned,
or special needs child), at least 30 years old, capable of raising
and educating the adoptee, and now must also not suffer from
an inappropriate illness.
The adoption law also includes provisions related to the purpose
of the adoption law, the legal rights and responsibilities of
those involved in an adoption, the termination of an adoptive
relationship, and special considerations for the adoption of
a blood relative or a step-child. -LC
© 1999 Rights reserved by the author.
*The medical examinaton form
is available on the China Connection website at . -ed.
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Laura A. Cecere is a Visiting Scholar in the
East Asian Legal Studies Program at Harvard Law School and recently
released her book, The Children Can't Wait: China's Emerging
Model for Intercountry Adoption. She is also the founder
and director of China Seas adoption program and the mother of
two adopted children from China. The author would like to note
that she is not admitted to practice law in China and nothing
included herein is a legal opinion on Chinese law. |
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