Ateneo de Davao University

College of Law

a written report on

INTER-COUNTRY ADOPTION

In partial fulfillment of the requirements in

Special Proceedings

Submitted by:
FLORES, FRANKLIN L.
MASANGUID, REMMON LLOYD P.
RODRIGUEZ, JAMIE JULES P.

1
 TABLE OF CONTENTS

I. INTRODUCTION ------------------------------------- 3

II. HISTORICAL BACKGROUND ------------------------------------- 5

III. LAWS ON INTER-COUNTRY ADOPTION ------------------------------------- 7

A. Republic Act 8043
The Inter-Country Adoption Act of 1995
B. Republic Act No. 9523
• OCA Circular No. 213-2017:
Guidelines and Clarification

IV. PROCEDURE ON INTER-COUNTRY ------------------------------------- 24

ADOPTION

SUMMARY of A.M No. 02-6-02-SC and

Amended IRR on R.A. 8043

V. RELATED CASES ------------------------------------- 33

2
 I. INTRODUCTION

It is the policy of the State to provide every neglected and abandoned

child with a family that will provide such child with love and care as well as
opportunities for growth and development. Towards this end, efforts shall be
exerted to place the child with an adoptive family in the Philippines. However,
recognizing that inter-country adoption may be considered as allowing aliens not
presently allowed by law to adopt Filipino children if such children cannot be
adopted by qualified Filipino citizens or aliens, the State shall take measures to
ensure that inter-country adoptions are allowed when the same shall prove
beneficial to the child's best interests, and shall serve and protect his/her
fundamental rights. (Section 2, Republic Act 8043)

Inter-country adoption in the Philippines is governed by Republic Act

(R.A.) No. 8043 or the Inter-Country Adoption Act of 1995. The law aims to place
every neglected and abandoned child with an adoptive family.

Preference is given to Filipino adoptive parents as can be seen from the

law's restrictive stance towards adoption of Filipino children by alien prospective
adoptive parents (PAP).

The law allows inter-country adoption to alien (PAP) only if it shown that
the same is for the best interests of the child. R.A. No. 8043 is in accord with the
Hague Convention on the Protection of Children and Co-Operation in Respect of
Inter-Country Adoption, to which the Philippines is a State Party.

The Inter-Country Adoption Board (ICABM) created by R.A. No. 8043 is

the central authority in matters relating to inter-country adoption of Filipino
children. It is the same policy-making and regulatory body responsible for the
approval of all inter-country adoption applications and placements.

For many, the benefits of adoption outweigh the risks. Through adoption,
many childless couples have found a way to realize their dream of raising a
family. Adoption has also placed countless homeless Filipino children to the care
of loving adoptive parents who are emotionally and financially ready to support
them. It is because of these inherent benefits in adoption that the Philippines
takes a liberal view on inter-country adoption and promotes the same not only as
an act that creates a relationship of paternity and filiation, but also one aimed at
giving every prospective adoptee a chance at a better future.

Along with the liberality accorded to adoption, the principle of "best

interest of the child" pervades Philippine cases involving adoption and child
custody. Philippine law mandates that in choosing the parent to whom custody is
given, the welfare of the child should always be the paramount consideration.

3
Aside from the material resources, as well as the moral and social situations of
the PAP, all relevant circumstances that impact on the child's well-being and
development are considered. It is in keeping with this principle that all programs
on inter-country adoption are geared towards the betterment of the adopted
child. (Philippines: A Primer on the Philippine Law on Inter-Country Adoption by Precious Angela Lledo Esq)

4
 II. HISTORICAL BACKGROUND

Republic Act 8043 also known as the Inter-Country Adoption Act was
enacted in 1995 to allow aliens to adopt Filipino children if such children cannot
be adopted by qualified Filipino citizens.

However, before this law, a series of adoption laws were enacted which
prompted legislators to address the rising problem on the necessity of foreign
adoption inside the Philippines.

Evolution of Inter-country Adoption Laws

Act No. 3094 was the first law for allowed foreign adoption which allowed
any public or charitable child-caring institution to allow adoption for either
Filipinos or aliens. In the Civil Code of 1950, Art. 335 prohibited foreign adoption
to countries the Philippines does not have diplomatic ties with to prevent
conflicts of blood and identity in the case of war.

In 1975, the Child and Youth Welfare Code became the legal basis for
inter-country adoption allowing for non-resident aliens to adopt in court if
qualified. The shift of adoption authority from judicial to the Director of Social
Services and Development (DSWD) happened in the Council for the Welfare of
Children (1976).

When the 1988 Family Code was implemented aliens were disqualified
from adopting except a) a former Filipino citizen adopting a relative, 2) adopting
the legitimate child of his/her Filipino spouse and 3) spouse of a Filipino citizen
seeking to adopt jointly a relative of the Filipino. All aliens not in these
allowances have to comply with an inter-country adoption act the senate made
seven years later.

The ratification of the UN Convention of the Rights of the Child in 1990

and the Hague Convention on the Protection of Children and Cooperation in
Respect to Inter-country Adoption drove the Philippines to make R.A. No. 8043.
(Pangalangan, Elizabeth A. (2013). Not Bone of My Bone but Still My Own. Quezon City: University of the Philippines
College of Law. pp. 35–41.)

5
Inter-country Adoption Act of 1995

In response to the UN Convention on the Rights of the Child (September

2, 1990), the 1995 Hague Convention on the Protection of Children and
Cooperation in Respect of Inter-country Adoption (January 8, 1996), and Art.
184 of the Family Code, the Senate drafted R.A. No. 8043 which will be the
central legal basis for inter-country adoption on June 7, 1995. This was following
Senators Osmena and Coseteng's (sponsor) alarm over the advertising
placements of Filipino children in US publications "that range from $3000 to
$15000". (Pangalangan, Elizabeth A. (2013). Not Bone of My Bone but Still My Own: A Treatise on the Philippine Adoption.
Quezon City: University of the Philippines College of Law. p. 33)

The law applies to aliens except

1.) a former Filipino citizen seeking to adopt a relative by consanguinity,

2.) one who seeks to adopt the legitimate child of his/her Filipino spouse,
3.) joint adoption with a Filipino spouse of his/her relative by
consanguinity. as well as Filipino citizens residing permanently abroad.

Aliens must have lived in the Philippines at least three (3) continuous years
before filing for adoption as well as have a higher minimum age of 27 compared
to domestic adoption.

6
 III. LAWS ON INTER-COUNTRY ADOPTION

A. Republic Act 8043

The Inter-Country Adoption Act of 1995
 "AN ACT ESTABLISHING THE RULES TO GOVERN INTER-COUNTRY
ADOPTION OF FILIPINO CHILDREN, AND FOR OTHER PURPOSES"

B. Republic Act No. 9523

 “AN ACT REQUIRING CERTIFICATION OF THE DEPARTMENT OF
SOCIAL WELFARE AND DEVELOPMENT (DSWD) TO DECLARE A
"CHILD LEGALLY AVAILABLE FOR ADOPTION" AS A PREREQUISITE
FOR ADOPTION PROCEEDINGS, AMENDING FOR THIS PURPOSE
CERTAIN PROVISIONS OF REPUBLIC ACT NO. 8552, OTHERWISE
KNOWN AS THE DOMESTIC ADOPTION ACT OF 1998, REPUBLIC
ACT NO. 8043, OTHERWISE KNOWN AS THE INTER-COUNTRY
ADOPTION ACT OF 1995, PRESIDENTIAL DECREE NO. 603,
OTHERWISE KNOWN AS THE CHILD AND YOUTH WELFARE CODE,
AND FOR OTHER PURPOSES”

 OCA Circular No. 213-2017 : Guidelines and Clarification

___________________________________________________________

7
 Republic Act 8043
The Inter-Country Adoption Act of 1995

What is INTER-COUNTRY ADOPTION?

Inter-country adoption refers to the socio-legal process of adopting a

Filipino child by a foreigner or a Filipino citizen permanently residing abroad
where the petition is filed, the supervised trial custody is undertaken, and the
decree of adoption is issued outside the Philippines.

The State Policy on Inter-country Adoption

It is hereby declared the policy of the State to provide every neglected

and abandoned child with a family that will provide such child with love and care
as well as opportunities for growth and development. Towards this end, efforts
shall be exerted to place the child with an adoptive family in the Philippines.

However, recognizing that inter-country adoption may be considered as

allowing aliens not presently allowed by law to adopt Filipino children if such
children cannot be adopted by qualified Filipino citizens or aliens, the State shall
take measures to ensure that inter-country adoptions are allowed when the
same shall prove beneficial to the child's best interests, and shall serve and
protect his/her fundamental rights.

Definition of Terms — as used in Inter-Country Adoption Act of 1995:

 *CHILD means a person below fifteen (15) years of age unless sooner
emancipated by law.

Amended, Republic Act No. 9523:

Child refers to a person below eighteen (18) years of age or a person
over eighteen (18) years of age but is unable to fully take care of
him/herself or protect himself/herself from abuse, neglect, cruelty,
exploitation, or discrimination because of physical or mental disability or
condition.

 DEPARTMENT refers to the Department of Social Welfare and

Development of the Republic of the Philippines.

 SECRETARY refers to the Secretary of the Department of Social Welfare

and Development.

 AUTHORIZED AND ACCREDITED AGENCY refers to the State welfare

agency or a licensed adoption agency in the country of the adopting

8
 parents which provide comprehensive social services and which is duly
recognized by the Department.

 *LEGALLY-FREE CHILD means a child who has been voluntarily or

involuntarily committed to the Department, in accordance with the Child
and Youth Welfare Code.

Amended, Republic Act No. 9523:

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 after the fact of abandonment or neglect has been proven
through the submission of pertinent documents, or one who was
voluntarily committed by his/her parent(s) or legal guardian.

 MATCHING refers to the judicious pairing of the adoptive child and the
applicant to promote a mutually satisfying parent-child relationship.

 BOARD refers to the Inter-country Adoption Board.

THE INTER-COUNTRY ADOPTION BOARD

There is hereby created the Inter-Country Adoption Board, hereinafter

referred to as the Board to act as the central authority in matters relating to
inter-country adoption. It shall act as the policy-making body for purposes of
carrying out the provisions of this Act, in consultation and coordination with the
Department, the different child-care and placement agencies, adoptive agencies,
as well as non-governmental organizations engaged in child-care and placement
activities.

As such, it shall:

(a) Protect the Filipino child from abuse, exploitation, trafficking and/or
sale or any other practice in connection with adoption which is harmful,
detrimental, or prejudicial to the child;

(b) Collect, maintain, and preserve confidential information about the

child and the adoptive parents;

(c) Monitor, follow up, and facilitate completion of adoption of the child
through authorized and accredited agency;

(d) Prevent improper financial or other gain in connection with an

adoption and deter improper practices contrary to this Act;

9
 (e) Promote the development of adoption services including post-legal
adoption;

(f) License and accredit child-caring/placement agencies and collaborate

with them in the placement of Filipino children;

(g) Accredit and authorize foreign adoption agency in the placement of

Filipino children in their own country; and

(h) Cancel the license to operate and blacklist the child-caring and
placement agency or adoptive agency involved from the accreditation list
of the Board upon a finding of violation of any provision under this Act.

Powers and Functions of the Board

The Board shall have the following powers and functions:

(a) to prescribe rules and regulations as it may deem reasonably

necessary to carry out the provisions of this Act, after consultation and
upon favorable recommendation of the different agencies concerned with
the child-caring, placement, and adoption;

(b) to set the guidelines for the convening of an Inter-country Adoption

Placement Committee which shall be under the direct supervision of the
Board;

(c) to set the guidelines for the manner by which selection/matching of

prospective adoptive parents and adoptive child can be made;

(d) to determine a reasonable schedule of fees and charges to be exacted

in connection with the application for adoption;

(e) to determine the form and contents of the application for inter-country
adoption;

(g) to institute systems and procedures to prevent improper financial gain

in connection with adoption and deter improper practices which are
contrary to this Act;

(h) to promote the development of adoption services, including post-legal

adoption services,

10
 (i) to accredit and authorize foreign private adoption agencies which have
demonstrated professionalism, competence and have consistently pursued
non-profit objectives to engage in the placement of Filipino children in
their own country: Provided, That such foreign private agencies are duly
authorized and accredited by their own government to conduct inter-
country adoption: Provided, however, That the total number of authorized
and accredited foreign private adoption agencies shall not exceed one
hundred (100) a year;

(j) to take appropriate measures to ensure confidentiality of the records of

the child, the natural parents and the adoptive parents at all times;

(k) to prepare, review or modify, and thereafter, recommend to the

Department of Foreign Affairs, Memoranda of Agreement respecting inter-
country adoption consistent with the implementation of this Act and its
stated goals, entered into, between and among foreign governments,
international organizations and recognized international non-governmental
organizations;

(l) to assist other concerned agencies and the courts in the

implementation of this Act, particularly as regards coordination with
foreign persons, agencies and other entities involved in the process of
adoption and the physical transfer of the child; and

(m) to perform such other functions on matters relating to inter-country

adoption as may be determined by the President.

Inter-Country Adoption as the Last Resort

The Board shall ensure that all possibilities for adoption of the child under
the Family Code have been exhausted and that inter-country adoption is in the
best interest of the child.

Towards this end, the Board shall set up the guidelines to ensure that
steps will be taken to place the child in the Philippines before the child is placed
for inter-country adoption:

Provided, however, That the maximum number that may be allowed for
foreign adoption shall not exceed six hundred (600) a year for the first five (5)
years.

11
Who May be Adopted?

Only a legally free child may be the subject of inter-country adoption. In

order that such child may be considered for placement, the following documents
must be submitted to the Board:

(a)Child study;
(b)Birth certificate/foundling certificate;
(c)Deed of voluntary commitment/decree of abandonment/death certificate of
parents;
(d)Medical evaluation /history;
(e)Psychological evaluation, as necessary; and
(f)Recent photo of the child.

Who May Adopt?

An alien or a Filipino citizen permanently residing abroad may file an

application for inter-country adoption of a Filipino child if he/she:

(a) is at least twenty-seven (27) years of age and at least sixteen (16)
years older than the child to be adopted, at the time of application unless
the adopter is the parent by nature of the child to be adopted or the
spouse of such parent:

(b) if married, his/her spouse must jointly file for the adoption;

(c) has the capacity to act and assume all rights and responsibilities of
parental authority under his national laws, and has undergone the
appropriate counseling from an accredited counselor in his/her country;

(d) has not been convicted of a crime involving moral turpitude;

(e) is eligible to adopt under his/her national law;

(f) is in a position to provide the proper care and support and to give the
necessary moral values and example to all his children, including the child
to be adopted;

(g) agrees to uphold the basic rights of the child as embodied under
Philippine laws, the U.N. Convention on the Rights of the Child, and to
abide by the rules and regulations issued to implement the provisions of
this Act;

12
 (h) comes from a country with whom the Philippines has diplomatic
relations and whose government maintains a similarly authorized and
accredited agency and that adoption is allowed under his/her national
laws; and

(i) possesses all the qualifications and none of the disqualifications

provided herein and in other applicable Philippine laws.

Family Selection/Matching

No child shall be matched to a foreign adoptive family unless it is

satisfactorily shown that the child cannot be adopted locally.

The clearance, as issued by the Board, with the copy of the minutes of the
meetings, shall form part of the records of the child to be adopted.

When the Board is ready to transmit the Placement Authority to the

authorized and accredited inter-country adoption agency and all the travel
documents of the child are ready, the adoptive parents, or any one of them, shall
personally fetch the child in the Philippines.

Pre-adoptive Placement Costs

The applicant(s) shall bear the following costs incidental to the placement
of the child;

(a) The cost of bringing the child from the Philippines to the residence of the
applicant(s) abroad, including all travel expenses within the Philippines and
abroad; and

(b) The cost of passport, visa, medical examination and psychological

evaluation required, and other related expenses.

Fees, Charges and Assessments

Fees, charges, and assessments collected by the Board in the exercise of

its functions shall be used solely to process applications for inter-country
adoption and to support the activities of the Board.

Supervision of Trial Custody

The governmental agency or the authorized and accredited agency in the

country of the adoptive parents which filed the application for inter-country
adoption shall be responsible for the trial custody and the care of the child.

13
It shall also provide family counseling and other related services. The trial
custody shall be for a period of six (6) months from the time of placement. Only
after the lapse of the period of trial custody shall a decree of adoption be issued
in the said country a copy of which shall be sent to the Board to form part of the
records of the child.

During the trial custody, the adopting parent(s) shall submit to the governmental
agency or the authorized and accredited agency, which shall in turn transmit a
copy to the Board, a progress report of the child's adjustment. The progress
report shall be taken into consideration in deciding whether or not to issue the
decree of adoption.

The Department of Foreign Affairs shall set up a system by which Filipino

children sent abroad for trial custody are monitored and checked as reported by
the authorized and accredited inter-country adoption agency as well as the
repatriation to the Philippines of a Filipino child whose adoption has not been
approved.

On Executive Agreements

The Department of Foreign Affairs, upon representation of the Board,

shall cause the preparation of Executive Agreements with countries of the foreign
adoption agencies to ensure the legitimate concurrence of said countries in
upholding the safeguards provided by this Act.

PENALTIES

(a) Any person who shall knowingly participate in the conduct or carrying out of
an illegal adoption, in violation of the provisions of this Act, shall be punished
with a penalty of imprisonment ranging from six (6) years and one (1) day to
twelve (12) years and/or a fine of not less than Fifty thousand pesos (P50,000),
but not more than Two hundred thousand pesos (P200.000), at the discretion of
the court.

For purposes of this Act, an adoption is illegal if it is effected in any

manner contrary to the provisions of this Act or established State policies, its
implementing rules and regulations, executive agreements, and other laws
pertaining to adoption.

Illegality may be presumed from the following acts:

(1) consent for an adoption was acquired through, or attended by

coercion, fraud, improper material inducement;

14
 (2) there is no authority from the Board to effect adoption;

(3) the procedures and safeguards placed under the law for adoption were
not complied with; and

(4) the child to be adopted is subjected to, or exposed to danger, abuse

and exploitation.

(b) Any person who shall violate established regulations relating to the
confidentiality and integrity of records, documents and communications of
adoption applications, cases and processes shall suffer the penalty of
imprisonment ranging from one (1) year and one (1) day to two (2) years,
and/or a fine of not less than Five thousand pesos (P5,000), but not more than
Ten thousand pesos (P10,000), at the discretion of the court.

A penalty lower by two (2) degrees than that prescribed for the consummated
felony under this Article shall be imposed upon the principals of the attempt to
commit any of the acts herein enumerated.

Acts punishable under this Article, when committed by a syndicate or where it

involves two or more children shall be considered as an offense constituting child
trafficking and shall merit the penalty of reclusion perpetua.

Acts punishable under this Article are deemed committed by a syndicate if

carried out by a group of three (3) or more persons conspiring and/or
confederating with one another in carrying out any of the unlawful acts defined
under this Article.Penalties as are herein provided shall be in addition to any
other penalties which may be imposed for the same acts punishable under other
laws, ordinances, executive orders, and proclamations.

Public Officers as Offenders

Any government official, employee or functionary who shall be found

guilty of violating any of the provisions of this Act, or who shall conspire with
private individuals shall, in addition to the above-prescribed penalties, be
penalized in accordance with existing civil service laws, rules and regulations:
Provided, That upon the filing of a case, either administrative or criminal,
said government official, employee or functionary concerned shall automatically
suffer suspension until the resolution of the case.

___________________________________________________________

15
 Republic Act No. 9523
An Act Requiring Certification Of The Department Of Social Welfare And
Development (DSWD) To Declare A "Child Legally Available For Adoption"
As A Prerequisite For Adoption Proceedings, Amending For This Purpose Certain
Provisions Of xx xxxx x, Republic Act No. 8043, Otherwise Known As The
Inter-Country Adoption Act Of 1995, xxx xx”

Department of Social Welfare and Development (DSWD) is the agency

charged to implement the provisions of this Act and shall have the sole authority
to issue the certification declaring a child legally available for adoption.

CHILD refers to a person below eighteen (18) years of age or a person over
eighteen (18) years of age but is unable to fully take care of him/herself or
protect himself/herself from abuse, neglect, cruelty, exploitation, or
discrimination because of physical or mental disability or condition.

ABANDONED CHILD refers to a child who has no proper parental care or

guardianship, or whose parent(s) have deserted him/her for a period of at least
three (3) continuous months, which includes a founding.

NEGLECTED CHILD refers to a child whose basic needs have been deliberately
unattended or inadequately attended within a period of three (3) continuous
months.

Neglect may occur in two (2) ways:

(a) There is physical neglect when the child is malnourished, ill-clad,
and without proper shelter. A child is unattended when left by
himself/herself without proper provisions and/or without proper
supervision.

(b) There is emotional neglect when the child is maltreated, raped,

seduced, exploited, overworked, or made to work under conditions not
conducive to good health; or is made to beg in the streets or public
places; or when children are in moral danger, or exposed to gambling,
prostitution, and other vices.

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 after the fact of abandonment or neglect has been proven through the
submission of pertinent documents, or one who was voluntarily committed by
his/her parent(s) or legal guardian.

16
VOLUNTARILY COMMITTED CHILD is one whose parent(s) or legal guardian
knowingly and willingly relinquished parental authority to the DSWD or any duly
accredited child-placement or child-caring agency or institution.

CHILD-CARING AGENCY OR INSTITUTION refers to a private non-profit or

government agency duly accredited by the DSWD that provides twenty-four (24)
hour residential care services for abandoned, neglected, or voluntarily committed
children.

CHILD-PLACING AGENCY OR INSTITUTION refers to a private non-profit

institution or government agency duly accredited by the DWSD that receives and
processes applicants to become foster or adoptive parents and facilitate
placement of children eligible for foster care or adoption.

PETITIONER refers to the head or executive director of a licensed or accredited

child-caring or child-placing agency or institution managed by the government,
local government unit, non-governmental organization, or provincial, city, or
municipal Social Welfare Development Officer who has actual custody of the
minor and who files a certification to declare such child legally available for
adoption, or, if the child is under the custody of any other individual, the agency
or institution does so with the consent of the child's custodian.

CONSPICUOUS PLACE shall refer to a place frequented by the public, where

by notice of the petition shall be posted for information of any interested person.

SOCIAL CASE STUDY REPORT (SCSR) shall refer to a written report of the
result of an assessment conducted by a licensed social worker as to the social-
cultural economic condition, psychosocial background, current functioning and
facts of abandonment or neglect of the child. The report shall also state the
efforts of social worker to locate the child's biological parents/relatives.

PETITION:
The petition shall be in the form of an affidavit, subscribed and sworn to
before any person authorized by law to administer oaths.

It shall contain facts necessary to establish the merits of the petition and
shall state the circumstances surrounding the abandonment or neglect of the
child.

The petition shall be supported by the following documents:

(1) Social Case Study Report made by the DSWD, local government unit, licensed
or accredited child-caring or child-placing agency or institution charged with the
custody of the child;

17
(2) Proof that efforts were made to locate the parent(s) or any known relatives
of the child. The following shall be considered sufficient:

(a) Written certification from a local or national radio or television station

that the case was aired on three (3) different occasions;

(b) Publication in one (1) newspaper of general circulation;

(c) Police report or barangay certification from the locality where the child
was found or a certified copy of a tracing report issued by the Philippine
National Red Cross (PNRC), National Headquarters (NHQ), Social Service
Division, which states that despite due diligence, the child's parents could
not be found; and

(d) Returned registered mail to the last known address of the parent(s) or
known relatives, if any.

(3) Birth certificate, if available; and

(4) Recent photograph of the child and photograph of the child upon
abandonment or admission to the agency or institution.

DECLARATION OF AVAILABILITY FOR ADOPTION

Upon finding merit in the petition, the Secretary shall issue a certification
declaring the child legally available for adoption within seven (7) working days
from receipt of the recommendation.

Said certification, by itself shall be the sole basis for the immediate issuance by
the local civil registrar of a foundling certificate. Within seven (7) working days,
the local civil registrar shall transmit the founding certificate to the National
Statistic Office (NSO) Philippine Statistics Authority.

Declaration of Availability for Adoption of Involuntarily Committed

Child and Voluntarily Committed Child
The certificate declaring a child legally available for adoption in case of an
involuntarily committed child under Article 141, paragraph 4(a) and Article 142 of
Presidential Decree No. 603 shall be issued by the DSWD within three (3)
months following such involuntary commitment.

In case of voluntary commitment as contemplated in Article 154 of Presidential

Decree No. 603, the certification declaring the child legally available for adoption
shall be issued by the Secretary within three (3) months following the filing of
the Deed of Voluntary Commitment, as signed by the parent(s) with the DSWD.

18
Upon petition filed with the DSWD, the parent(s) or legal guardian who
voluntarily committed a child may recover legal custody and parental authority
over him/her from the agency or institution to which such child was voluntarily
committed when it is shown to the satisfaction of the DSWD that the parent(s) or
legal guardian is in a position to adequately provide for the needs of the child:
Provided, That, the petition for restoration is filed within (3) months after the
signing of the Deed of Voluntary Commitment.

CERTIFICATION – The certification that a child is legally available for adoption

shall be issued by the DSWD in lieu of a judicial order, thus making the entire
process administrative in nature.

The certification, shall be, for all intents and purposes, the primary evidence that
the child is legally available in a domestic adoption proceeding, as provided in
Republic Act No. 8552 and in an inter-country adoption proceeding, as provided
in Republic Act No. 8043.

PENALTY
The penalty of One hundred thousand pesos (P100,000.00) to Two
hundred thousand pesos (P200,000.00) shall be imposed on any person,
institution, or agency who shall place a child for adoption without the certification
that the child is legally available for adoption issued by the DSWD. Any agency or
institution found violating any provision of this Act shall have its license to
operate revoked without prejudice to the criminal prosecution of its officers and
employees.

Violation of any provision of this Act shall subject the government official or
employee concerned to appropriate administrative, civil and/or criminal
sanctions, including suspension and/or dismissal from the government service
and forfeiture of benefits.

19
Clarification regarding “CHILD LEGALLY AVAILABLE FOR ADOPTION”

OCA CIRCULAR NO. 213-2017

Resolution No. 02-2017

PROPOSED GUIDELINES AND CLARIFICATION IN THE

INTERPRETATIO AND APPLICATION OF PERTINENT PROVISIONS
OF REPUBLIC ACT NO. 8552 (DOMESTIC ADOPTION ACT OF
1998), REPUBLIC ACT NO. 8043 (THE INTER-COUNTRY
ADOPTION ACT OF 1995), REPUBLIC ACT NO. 9523 (AN ACT
REQUIRING CERTIFICATION OF THE DSWD TO DECLARE A
“CHILD LEGALLY AVAILABLE FOR ADOPTION” AS A
PREREQUISITE FOR ADOPTION PROCEEDINGS), AND
ADMINISTRATIVE MATTER NO. 02-6-02-SC (RULE ON
ADOPTION), AS TO THE REQUIRED DOCUMENTS IN ADOPTION

I. STRICT COMPLIANCE WITH REPUBLIC ACT NO. 9523 (AN

ACT REQUIRING CERTIFICATION OF THE DSWD TO
DECLARE A “CHILD LEGALLY AVAILABLE FOR ADOPTION”
AS A PREREQUISITE FOR ADOPTION PROCEEDINGS
INVOLVING ABANDONED, SURRENDERED, OR NEGLECTED
CHILDREN)

Judges are enjoined to strictly comply with the provisions of Sec. 8 of

Republic Act (R.A.) No. 9523 and its Implementing Rules and Regulations,
requiring a Certification Declaring the Child Legally Available for Adoption
(CDCLAA) from the DSWD as primary evidence in a domestic adoption
proceeding, including the adoption of surrendered, abandoned, neglected, and
dependent children. The only exceptions are adoption proceedings covered by
subparagraphs (i), (ii), and (iii) of Section 4 of the Implementing Rules and
Regulations of R.A. No. 9523.

Judges are reminded of Section 10 of RA No. 9523, which states that a

violation of any provision of the said law is punishable as provided below:

SEC 10. Penalty. – The penalty of One Hundred Thousand Pesos

(P100,000) to Two Hundred Thousand Pesos (P200,000) shall be imposed
on any person, institution, or agency who shall place a child for adoption
issued by the DSWD. Any agency or institution found violating any
provision of this Act shall have its license to operate revoked without
prejudice to the criminal prosecution of its officers and employees.
Violation of any provision of this Act shall subject the government
official or employee concerned to appropriate administrative, civil and/or

20
 criminal sanctions, including suspension and/or dismissal from the
government service and forfeiture of benefits.

JUSTIFICATION FOR THE PROPOSED GUIDELINE:

This guideline will clarify that the CDCLAA required under Section
8 of No. 9523 is also required in petitions for adoption of abandoned,
surrendered, and neglected children which do not fall within the three
adoption cases exempted from the CDCLAA requirement by the
subparagraphs (i), (ii), and (iii) of Section 4 of the Implementing Rules
and Regulations of R.A. No. 9523.

Section 8 of R.A. No. 9523 provides:

Section 8 Certification. – The certification that a child is legally
available for adoption shall be issued by the DSWD in lieu of a judicial
order, thus making the entire process administrative in nature.
The certification, shall be, for all intents and purposes, the primary
evidence that the child is legally available in a domestic adoption
proceeding, as provided in Republic Act No. 8552 and in an inter-country
adoption proceeding, as provided in Republic Act No. 8043.

Further, Section 4 of the Implementing Rules and Regulations of R.A. No.

9523 provides:

SECTION 4. Coverage – These rules shall apply to surrendered,

abandoned, neglected, and dependent children as mentioned in
this Act who are subject for adoption.

Any of the following adoption proceedings in court does not

require a Certification Declaring a Child Legally Available for
Adoption.

i. Adoption of an illegitimate child by any of his/her biological

parent
ii. Adoption of a child by his/her step-parent
iii. Adoption of a child by a relative within the fourth (4th)
degree of consanguinity or affinity.

II. APPLICATION OF SECTION 12 (5) OF ADMINISTRATIVE

MATTER NO. 02-6-02 SC OR THE RULE ON ADOPTION OF
THE CHILD STUDY REPORT (CSR) AND HOME STUDY
REPORT (HSR) ARE NOT ATTACHED TO THE PETITION FOR
ADOPTION UPON FILLING AS REQUIRED UNDER SECTION
11 OF SAID RULE

21
 When a petition for adoption is filed without the Case Study Report
(CSR) and the Home Study Report (HSR), the court shall not dismiss the
petition outright. Instead, the court shall, pursuant to Section 12(5), Rule
on Adoption, order the concerned social worker to prepare and submit
directly and only to the court the required reports before the hearing.

JUSTIFICATION FOR THE PROPOSED GUIDLINE:

The use of the word “shall” in Section 11, Rule on Adoption,

underscores the mandatory character of the Rule requiring the CSR
and HSR. Upon filing of the petition for adoption, the court
should issue an order to the DSWD to conduct the child and home
study and submit the CSR and HSR directly to the court as the
same are strictly confidential.

Sections 11 and 12 of the Rule on Adoption provide, to wit:

Section 11. Annexes to the Petition. – The following

documents shall be attached to the petition:

xxx

C. Child study report on the adoptee and his biological

parents;

xxx

E. Home study report on the adopters. If the adopter is an

alien or residing abroad but qualified to adopt, the home
study report by a foreign adoption agency duly accredited by
the Inter-Country Adoption Board; and

xxx

Section 12. Order of Hearing – If the petition and

attachments are sufficient in form and substance, the court
shall issue an order which shall contain the following:

xxx

(5) a directive to the social worker of the court, the social

service office of the local government unit or any child-
placing or child-caring agency, or the Department to prepare

22
 and submit child and home study reports before the hearing
if such reports had not been attached to the petition due to
unavailability at the time of the filing of the latter; and

xxx”

III. IF THE ADOPTER IS AN ALIEN, THE HOME STUDY REPORT

(HSR) MUST BE PREPARED BY A FOREIGN ADOPTION
AGENCY DULY ACCREDITED BY THE INTER-COUNTRY
ADOPTION BOARD (ICAB)

If the petitioner is an alien or residing abroad and qualified to

adopt under R.A. No. 8552, the HSR must be prepared by a foreign
adoption agency duly accredited by the Inter-Country Adoption Board
(ICAB) in accordance with Section 11(E), Rule on Adoption.

Furthermore, pursuant to the third paragraph of Sec. 13, Rule on Adoption, the
HSR must show the alien’s legal capacity to adopt and that his/her government
allows the adoptee to enter his/her country as his/her adopted child.

___________________________________________________________

23
 IV. PROCEDURE ON INTER-COUNTRY ADOPTION

Governing Rules:

A. A.M No. 02-6-02-SC

B. Amended IRR on R.A. 8043
___________________________________________________

A.M No. 02-6-02-SC

Inter-Country Adoption

Applicability
The following sections apply to inter-country adoption of Filipino children
by foreign nationals and Filipino citizens permanently residing abroad.

Objectives — The State shall:

a) consider inter-country adoption as an alternative means of child care, if

the child cannot be placed in a foster or an adoptive family or cannot, in
any suitable manner, be cared for in the Philippines;

b) ensure that the child subject of inter-country adoption enjoys the same
protection accorded to children in domestic adoption; and

c) take all measures to ensure that the placement arising therefrom does
not result in improper financial gain for those involved.

Where to File Petition

A verified petition to adopt a Filipino child may be filed by a foreign
national or Filipino citizen permanently residing abroad with the Family Court
having jurisdiction over the place where the child resides or may be found.

It may be filed directly with the Inter-Country Adoption Board.

Who may be adopted

Only a child legally available for domestic adoption may be the subject of
inter-country adoption.

Contents of Petition— The petitioner must allege:

a) his age and the age of the child to be adopted, showing that he is at
least twenty-seven (27) years of age and at least sixteen (16) years older
than the child to be adopted at the time of application, unless the

24
 petitioner is the parent by nature of the child to be adopted or the spouse
of such parent, in which case the age difference does not apply;

b) if married, the name of the spouse who must be joined as co-petitioner

except when the adoptee is a legitimate child of his spouse;

c) that he has the capacity to act and assume all rights and responsibilities
of parental authority under his national laws, and has undergone the
appropriate counseling from an accredited counselor in his country;

d) that he has not been convicted of a crime involving moral turpitude;

e) that he is eligible to adopt under his national law;

f) that he can provide the proper care and support and instill the
necessary moral values and example to all his children, including the child
to be adopted;

g) that he agrees to uphold the basic rights of the child, as embodied

under Philippine laws and the U. N. Convention on the Rights of the Child,
and to abide by the rules and regulations issued to implement the
provisions of Republic Act No. 8043;

h) that he comes from a country with which the Philippines has diplomatic
relations and whose government maintains a similarly authorized and
accredited agency and that adoption of a Filipino child is allowed under his
national laws; and

i) that he possesses all the qualifications and none of the disqualifications

provided in this Rule, in Republic Act No. 8043 and in all other applicable
Philippine laws.

Annexes — The petition for adoption shall contain the following annexes written
and officially translated in English:

a) Birth certificate of petitioner;

b) Marriage contract, if married, and, if applicable, the divorce decree, or

judgment dissolving the marriage;

c) Sworn statement of consent of petitioner’s biological or adopted

children above ten (10) years of age;

25
 d) Physical, medical and psychological evaluation of the petitioner certified
by a duly licensed physician and psychologist;

e) Income tax returns or any authentic document showing the current

financial capability of the petitioner;

f) Police clearance of petitioner issued within six (6) months before the
filing of the petitioner;

g) Character reference from the local church/minister, the petitioner’s

employer and a member of the immediate community who have known
the petitioner for at least five (5) years;

h) Full body postcard-size pictures of the petitioner and his immediate

family taken at least six (6) months before the filing of the petition.

Duty of Court
The court, after finding that the petition is sufficient in form and
substance and a proper case for inter-country adoption, shall immediately
transmit the petition to the Inter-Country Adoption Board for appropriate action.

26
 SUMMARY
of A.M No. 02-6-02-SC and Amended IRR on R.A. 8043

1.) PROCEDURE TO DECLARE A CHILD LEGALLY AVAILABLE

The child must first be declared legally available for adoption as

prescribed by R.A. 9523 before he or she may be up for adoption. To be
declared legally available for adoption there must be a petition in the form
of an affidavit which must subscribed and sworn to, and must contain all
the facts and necessary requirements prescribed by law, such is filed with
the regional office of the DSWD where such child is found or was
abandoned. And, If the Regional Director of the DSWD finds that the
petition is sufficient in substance and for there shall be posting of the
petition in a conspicuous place for five (5) consecutive days. After the
posting, the Regional Director of the DSWD shall render a
recommendation to the Secretary of the DSWD who shall act within 48
hours from the date of recommendation. If the Secretary finds merit in
the recommendation he shall issue a certification declaring the child is
legally available for adoption. (Table A)

2.) PROCEDURE FOR THE APPLICATION OF THE ADOPTER TO BE

ELIGIBLE TO ADOPT

Once the child is legally available for adoption, the adopter now can file
an application for adoption with the Family Court which has jurisdiction
over the child or with the Inter-Country Adoption Board, through a
government or accredited agency where the prospective adoptive parents
reside. The application must be supported by documents required under
the Law and must possess all the qualifications laid down by the law (See
Table C). Once this is completed there will be a matching process,
wherein the prospective adopting parent will be match with a legally
available child, or the Inter-Country Adoption Board will refer a specific
legally available child to the prospective adopting parent. (Table B)

3.) PETITION FOR ADOPTION

After securing the Certification from the DSWD that the child is legally
available for adoption, the verified petition may be filed in (1) the
Regional Trial Court having jurisdiction over the child; or (2) with the ICAB
directly. The petition must follow the proper contents and annexes a
provided for in law (Table C), and if it was filed in court, after finding
that the petition is sufficient in form and substance and a proper case for
inter-country adoption the court shall immediately transmit the petition to
the Inter-Country Adoption Board for appropriate action. Then, the trial

27
custody shall now be given to the government or accredited agency where
the prospective adoptive parents filed an application, the trial custody
shall last for six (6) months. Further, the role of the prospective adoptive
parents during the six (6) month period is to submit a progress report of
the child’s adjustment. Only after the six (6) month trial custody shall the
decree of adoption be issued. (Table B)

28

PETITION TO DECLARE
A CHILD LEGALLY
AVAILABLE FOR
ADOPTION
Form:
1. affidavit;
2. subscribed and sworn to
before any person
authorized by law to
administer oaths;
3. It shall contain facts
necessary to establish the
merits of the petition; and
4. state the circumstances
surrounding the
abandonment or neglect of
the child.
Where Filed:
The petition shall be filed or any known relatives of
in the regional office of the the child. The following shall
DSWD where the child was be considered sufficient:
found or abandoned.
TABLE A
THE PETITION SHALL BE IMPORTANT DATES
SUPPORTED BY THE
FOLLOWING
DOCUMENTS:
(1) Social Case Study Report Regional Director shall
made by the DSWD, local examine the petition and its
government unit, licensed or supporting documents, if
accredited child-caring or sufficient in form and
child-placing agency or substance and shall
institution charged with the authorize the posting of the
custody of the child; notice of the petition
conspicuous place for five
(5) consecutive days in the
locality where the child was
found.
(2) Proof that efforts were Regional Director shall act
made to locate the parent(s) on the same and shall
render a recommendation
not later than five (5)
working days after the
completion of its posting.
(a) Written certification
from a local or He/she shall transmit a
national radio or copy of his/her
television station recommendation and
that the case was records to the Office of the
aired on three (3) Secretary within forty-eight
different occasions; (48) hours from the date of
the recommendation.
(b) Publication in one
(1) newspaper of
general circulation;
(c) Police report or
barangay certification
from the locality where
the child was found or a
certified copy of a
tracing report issued by
29
 the Philippine National
Red Cross (PNRC),
National Headquarters
(NHQ), Social Service
Division, which states
that despite due
diligence, the child's
parents could not be
found; and

(d) Returned registered

mail to the last known
address of the parent(s)
or known relatives, if
any.

(3) Birth certificate, if Upon finding merit in the

available; and petition, the Secretary shall
issue a certification
declaring the child legally
available for adoption
within seven (7) working
days from receipt of the
recommendation.

(4) Recent photograph of Appeal:

the child and photograph of
the child upon abandonment The decision of the
or admission to the agency Secretary shall be
or institution. appealable to the Court of
Appeals within five (5) days
from receipt of the decision
by the petitioner, otherwise
the same shall be final and
executory.

30

Application
filed with ICAB or any
foreign agency which shall
submit the application to
ICAB. ICAB has 1 month
from receipt to act on
such application
The applicant/s shall notify
the Central Authority or
Foreign Adoption Agency in
writing of their decision on the
matching proposal within
fifteen (15) working days from
receipt of said proposal. If the
applicant needs additional
information about the child
and/or they need more time to
arrive at a decision, an
extension of thirty (30)
working days may be granted.
Within 3 working
days upon receipt of
the applicants
acceptance of the
matching proposal
the ICAB shall issue
a placement order
Petition in the court of
foreign nationality , and
the decree of such court
shall be given to the
ICAB within 1 month
Table B
Endorsement certificate by
the DSWD that a child is
legally available, and the
contents of such
certificate state:
ICAB shall establish
then a roster of
1.) all possibilities for
applicants which is adoption of the child in
updated quarterly
the Philippines have been
exhausted; and
2.) that inter-country
adoption is in the best
interests of the child
There will be a matching of the
child and the prospective
adopting parent, the
committee will give a matching
proposal
Transfer of the child to the
Then there will be a Pre-
Prospective adopting parents who
departure preperation for
should fetch the child within 20
the child to reduce anxiety
working days after the notice of
and trauma and to ensure
the issuance of the child's visa, but
the childs physical and
the prospective parent and the
emotional state to travel
child shall first stay in the
and form new relationships
Phillipines for 5 days for bonding
The foreign agency shall
give to ICAB Quarterly
reports, and the ICAB Then the 6 month trial
shall transmit an custody shall start.
affidavit of consent to
the adoption within 15
days from the last
report.
31
 Table C
DOCUMENTS REQUIRED FOR CONTENTS OF THE PETITION
APPLICATION AND ANNEXES IN THE
PETITION
1.) Birth certificate of petitioner 1.) His age and the age of the child to be
adopted, showing that he is at least twenty-
seven (27) years of age and at least sixteen
(16) years older than the child to be adopted
at the time of application, unless the petitioner
is the parent by nature of the child to be
adopted or the spouse of such parent, in
which case the age difference does not apply
2.) Marriage contract, if married, and, if 2.) If married, the name of the spouse who
applicable, the divorce decree, or must be joined as co-petitioner except when
judgment dissolving the marriage the adoptee is a legitimate child of his spouse
3.) Sworn statement of consent of 3.) That he has the capacity to act and
petitioner’s biological or adopted assume all rights and responsibilities of
children above ten (10) years of age parental authority under his national laws, and
has undergone the appropriate counseling
from an accredited counselor in his country;

4.) Physical, medical and psychological 4.) That he has not been convicted of a crime
evaluation of the petitioner certified by involving moral turpitude
a duly licensed physician and
psychologist
5.) Income tax returns or any authentic 5.) That he is eligible to adopt under his
document showing the current financial national law
capability of the petitioner
6.) Police clearance of petitioner issued 6.) That he can provide the proper care and
within six (6) months before the filing support and instill the necessary moral values
of the petitioner and example to all his children, including the
child to be adopted
7.) Character reference from the local 7.) That he agrees to uphold the basic rights
church/minister, the petitioner’s of the child, as embodied under Philippine
employer and a member of the laws and the U. N. Convention on the Rights
immediate community who have known of the Child, and to abide by the rules and
the petitioner for at least five (5) years regulations issued to implement the provisions
of Republic Act No. 8043
8.) Full body postcard-size pictures of 8.) That he comes from a country with which
the petitioner and his immediate family the Philippines has diplomatic relations and
taken at least six (6) months before the whose government maintains a similarly
filing of the petition. authorized and accredited agency and that
adoption of a Filipino child is allowed under his
national laws
9.) That he possesses all the qualifications and
none of the disqualifications provided in this
Rule, in Republic Act No. 8043 and in all other
applicable Philippine laws

32
 V. RELATED CASES

There are no recent cases or jurisprudence directly and exhaustively

discussing inter-country adoption. However, a bunch of cases have given light as
to the interpretation of some provisions of Republic Act 8043, and the contrast
between the provisions regarding inter-country adoption prior its enactment,
specifically under the Civil Code.

In Ellis and Ellis v. Republic, a child left by an

unidentified mother was sought to be adopted by aliens.
This Court said:

In this connection, it should be noted that this is a

proceedings in rem, which no court may entertain unless
it has jurisdiction, not only over the subject matter of the
case and over the parties, but also over the res, which is
the personal status of Baby Rose as well as that of
petitioners herein. Our Civil Code (Art. 15) adheres to
the theory that jurisdiction over the status of a natural
person is determined by the latter's nationality. Pursuant
to this theory, we have jurisdiction over the status
of Baby Rose, she being a citizen of the
Philippines, but not over the status of the petitioners,
who are foreigners.120 (Underlining supplied)

In Ellis, the only issue before the Court was whether petitioners, not being
permanent residents in the Philippines, were qualified to adopt Baby Rose. The
citizenship of the abandoned Baby Rose was not put in issue. Baby Rose's
mother was known since she delivered Baby Rose at the Caloocan Maternity
Hospital but left Baby Rose four days later to the Heart of Mary Villa, an
institution for unwed mothers and their babies.

The only issue in this case is whether, not being permanent residents in the
Philippines, petitioners are qualified to adopt Baby Rose. Article 335 of the
Civil Code of the Philippines, provides that:

"The following cannot adopt:

xxx xxx xxx

(4) Non-resident aliens;".

xxx xxx xxx

33
This legal provisions is too clear to require interpretation. No matter how much
we sympathize with the plight of Baby Rose and with the good intentions of
petitioners herein, the law leaves us no choice but to apply its explicit terms,
which unqualified deny to petitioners the power to adopt anybody in the
Philippines.
The case of Ellis illustrates the boundary between the rights and privileges of
aliens on adoption before the enactment of R.A 8043 and Family Code.

An old case posed a circumstance wherein an Alien Step-Father adopted his

Step-Son – a situation within the ambit of the coverage of Inter-country
adoption. During that time, Republic Act 8043 was not yet enacted.

Where an Alien stepfather adopts his Filipino stepson

Malkinson vs. Agrava | 56 SCRA 66 (1973)

Ruling: That alienage by itself does not disqualify

a foreigner from adopting a Filipino child and that
our Civil Code "only disqualifies from being
adopters those aliens that are either (a) non-
residents or (b) who are residents but the
Republic of the Philippines has broken diplomatic
relations with their government." Neither does
our Civil Code require that both adopter and
adopted be of the same nationality.

Further, the petitioner wife as the natural mother is

expressly authorized under Article 338, paragraph (1) of
the Civil Code to adopt her natural child and raise its
status to that of a legitimate child. The petitioner-
husband as the step-father is likewise authorized to
adopt his stepchild, and that the adoption sought would
strengthen the family solidarity of petitioners-spouses
and the child, because the child after adoption, would
have its status of a natural child of petitioner wife and a
step-child of petitioner-husband raised to that of
legitimate child.

34
An interesting case which emphasized the inclusion of the term “foundling” to
those qualified of being adopted, as held in:

MARY GRACE NATIVIDAD S. POE-LLAMANZARES

vs. COMELEC, FRANCISCO S. TATAD, ANTONIO P.
CONTRERAS AND AMADO D. VALDEZ.

Ruling: Domestic laws on adoption also support the

principle that foundlings are Filipinos. These laws do not
provide that adoption confers citizenship upon the
adoptee. Rather, the adoptee must be a Filipino in the
first place to be adopted. The most basic of such laws is
Article 15 of the Civil Code which provides that "[l]aws
relating to family rights, duties, status, conditions, legal
capacity of persons are binding on citizens of the
Philippines even though living abroad." Adoption deals
with status, and a Philippine adoption court will have
jurisdiction only if the adoptee is a Filipino.

Recent legislation is more direct. R.A. No. 8043

entitled "An Act Establishing the Rules to Govern
the Inter-Country Adoption of Filipino Children
and For Other Purposes" (otherwise known as the
"Inter-Country Adoption Act of 1995"), R.A. No.
8552, entitled "An Act Establishing the Rules and Policies
on the Adoption of Filipino Children and For Other
Purposes" (otherwise known as the Domestic Adoption
Act of 1998) and this Court's A.M. No. 02-6-02-SC or the
"Rule on Adoption," all expressly refer to "Filipino
children" and include foundlings as among Filipino
children who may be adopted.

In the same case, the dissenting opinion of Justice Carpio is enlightening:

Philippine Laws and Jurisprudence on Adoption

Not Determinative of Natural-Born Citizenship

During the Oral Arguments, the Chief Justice cited

Republic Act No. 8552 (RA 8552) or the Domestic
Adoption Act of 1998 and Republic Act No. 8043 (RA
8043) or the Inter-Country Adoption Act of 1995 in
arguing that there are domestic laws which govern the
citizenship of foundlings.

35
This is an obvious mistake.

The term "natural-born Filipino citizen" does not

appear in these statutes describing qualified
adoptees. In fact, while the term "Filipino" is
mentioned, it is found only in the title of RA 8552
and RA 8043. The texts of these adoption laws do
not contain the term "Filipino." Specifically, the
provisions on the qualified adoptees read:

RA 8552, Section 8

Section 8. Who May Be Adopted.- The following may be

adopted:

(a) Any person below eighteen (18) years of age who has
been administratively or judicially declared available for
adoption;

(b) The legitimate son/daughter of one spouse by the

other spouse;

(c) An illegitimate son/daughter by a qualified adopter to

improve his/her status to that of legitimacy;

(d) A person of legal age if, prior to the adoption, said

person has been consistently considered and treated by
the adopter(s) as his/her own child since minority;

(e) A child whose adoption has been previously rescinded;

or

(f) A child whose biological or adoptive parent(s) has died:

Provided, That no proceedings shall be initiated within six
(6) months from the time of death of said parent(s).

RA 8043, Section 8

Sec. 8. Who May be Adopted. - Only a legally free

child may be the subject of inter-country adoption.
x x x.

36
Clearly, there is no specific provision in these
adoption laws requiring that adoptees must be
Filipinos, much less natural-born Filipinos. These
adoption laws do not distinguish between a Filipino
child and an alien child found in the Philippines,
and thus these adoption laws apply to both Filipino
and alien children found in the Philippines. In other
words, either Filipino or alien children found in the
Philippines, over which the Philippine government
exercises jurisdiction as they are presumed
domiciled in the Philippines, may be subject to
adoption under RA 8552 or RA 8043.

However, the Implementing Rules and Regulations of RA

8552, issued by the Department of Social Welfare and
Development, provide that they shall "apply to the
adoption in the Philippines of a Filipino child by a Filipino
or alien qualified to adopt under Article III, Section 7 of
RA 8552."88 The IRR, in effect, restricted the scope of RA
8552 when the IRR expressly limited its applicability to the
adoption of a Filipino child when the law itself, RA 8552,
does not distinguish between a Filipino and an alien child.
In such a case, the IRR must yield to the clear terms of
RA 8552. Basic is the rule that the letter of the law is
controlling and cannot be amended by an administrative
rule.

37