PHILIPPINE LAW JOURNAL Vol. IV APRIL, 1918 No. 9 A COMPARATIVE STUDY OF THE ADOPTION LAW UNDER THE SPANISH CIVIL CODE AND THE CODE OF CIVIL PROCEDURE BY PROF. SERAFIN P. HILADO INTRODUCTION HISTORICAL.-While the practice of adopting children was well-known among the ancient Assyrians, Egyptians, Hebrews' and other peoples, it was among the Romans where it received a high degree of development and became the subject of complete legislation. Borrowing the old Roman law of adoption Spain3 and the continental countries embodied it in their statute laws. Upon the discovery and colonization of the Western World it was naturally transplanted to the Spanish and French colonies who preserved and modified the same, and from whom the other States of the Union recently copied. By the promulgation of Spanish laws in the Philippines, the adoption law was extended to these Islands and its benefits made available to the inhabitants. Because of the change of sovereignty from Spain to the United States, American laws were gradually introduced into this Archipelago, among the first of which was the law of adoption. Thus, originating from a common source, flourishing in different countries, among different peoples, amidst diverse institutions, surroundings, and conditions, the two streams have met in these Islands, and made a comparative study of both interesting and instructive. To compare the Spanish adoption law as laid down in the Civil Code," and as construed by Spanish commentators, and the American law as it appears in the Code of Civil Procedure, and as interpreted by American courts, is the object of the present treatise. GENERAL NATURE.-The American and Spanish laws on adoption differ radically. The former provides for a complete change in the domestic relations of the child, making him "to all intents and purposes the child and legal heir" of the adopting 1 In the Matter of Upton, 16 La. An. 175. 2 II Manresa, 69. II Manresa, 70; I Falcon, 199. 4 Notes in 29 Am. St. Rep., 210. Arts. 173-180. Secs. 765-772. parent,' while the latter permits only a change in the person who is to exercise the parental authority, preserving all the other relations of the adopted with his natural family. In fact the adopting parent, under the Spanish law, resembles a guardian over the person of a ward more than the parent of a child. Unlike the natural father, he has nothing but a mere naked patria potestas, without a usufruct in the property of the child, and without a right to administer the same unless he gives a sufficient bond to the satisfaction of the court or of the person who must give consent to the adoption." WELFARE OF CHILD.-It is very pleasing to note, however, that, contrary to the old Roman law, both laws make the welfare of the child the paramount consideration. Thus, a guardian is forbidden to adopt his ward' in order to prevent adoptions inspired by selfish interests. The consent of the person to be adopted, if of a certain age, and that of his parents or persons standing in loco parentis, if a minor,' are required in order that his interests may be adequately safeguarded. Proceedings must be made in court so that the State, through its judicial representatives, may determine for and by itself "the fitness and propriety of such adoption."10 WHO MAY ADOPT IN GENERAL; ESSENTIAL QUALIFICATIONS; RESIDENCE; COMPLETE CIVIL CAPACITY.-Adoption may be made only by residents of the Philippine Islands possessed of complete civil capacity." Hence, idiots, insanes, deaf and dumbs, prodigals, minors, those civilly interdicted, and every one laboring under any of the causes, which restrict civil capacity may not do so.12 1 Code of Civil Procedure, Sec. 768. 1 Civil Code, Art. 177. ■ V. Sanchez Roman, 1085. 4 Civil Code, Art. 159. et seq. Civil Code, Art. 166. I Falcon, 200. 1 Civil Code, Art. 174 (3); Code of Civil Procedure, Sec. 765. ■ 23 Under Civil Code; Arts. 178, 320; 14 under Code of Civil Procedure, Sec. 765. Civil Code, Art. 178; Code of Civil Procedure, Sec. 765. 10 Code of Civil Procedure, Secs. 765, 767; Civil Code, Art. 178. 11 Civil Code, Art. 173. "El Código emplea en este Artículo 173 la formula de que 'pueden adoptar los que hallen en el pleno uso de sus derechos civiles,' sin que en este texto, ni en ningún otro, haya uando ese te nicismo ni explicado su alcance. por cuyo motivo hay que referir la frase, no solo á la aptitud de derecho (capacidad jurídica) sino á la libertad y posibilidad de su ejercicio (capacidad de obrar ó civil perfecta); de donde resulta que cualquiera limitación en la cap1cidad de obrar 6 civil que priva de esa condición de plenitud de uso de derechos civiles, inabilita para la adopción.' V. Sanchez Roman, 1073. The Code of Civil Procedure reads: "An inhabitant of the Philippine Islands, not married, or a husband and wife jointly, may petition the Court of First Instance of the province in which they reside for leave to adopt a minor child Sec. 765. * * Nothing is said of complete civil capacity as an essential qualification, but as adoption is a contract (Merritt . Morton, 143 Ky., 133) resulting into a status, it is safe to hold that the legislators intended to permit its exercise only by those who may legally contract: those possessed of complete civil capacity. 12 Civil Code, Art. 32. The terms "natural father," "natural parent," etc., are used throughout in contradistinction to "adopting father," "adopting parent," etc., and not in the sense that he is the father or parent of a child conceived at a time when the parents could have legally married. ID.; ID.; AGE.-Unlike the Code of Civil Procedure, however, the Civil Code demands further an age qualification. It requires the adopting to be at least fifteen years older than the adopted, so that the ages of the two may be such that one could have been the natural parent of the other,1 and to be at least forty-five years old.1 A learned commentator says that this latter age qualification (of 45 yrs.) is demanded in order that "only he who has no children, and has no more hopes of having them, may be permitted to adopt."* The full force of this reasoning is not clearly conceived. By what authority may we say that a man of forty-five years has no more hopes of having children? The laws do not prohibit any one over forty-five from marrying. Nay, thousands marry over fifty, and experience has demonstrated that those marriages have been almost invariably fruitful of children. WOMEN.-Women may adopt if they possess the necessary qualifications. Sex is of no importance. There is nowhere an express inhibition as to them; and the language of both statutes is broad enough to include them. FOREIGNERS.-Foreigners residing in the Philippines may adopt.' MARRIED PERSONS: JOINTLY.-The husband and wife may jointly adopt. IDEM: SEPARATELY.—Either spouse may, under the Civil Code, adopt with the consent of the other.' Under the Code of Civil Procedure it cannot be done except in the case of a stepfather adopting his stepchild. STEPFATHERS.-Stepfathers may adopt their stepchildren if it is consented to by the mother, or, upon her incapacity, by the guardian.' The Code of Civil Procedure also requires the consent of the stepchild if fourteen years or more of age.10 WHO MAY NOT ADOPT UNDER BOTH LAWS: GUARDIANS.-Both the Civil Code and the Code of Civil Procedure absolutely forbid guardians to adopt their wards. From a reading of the provisions of law" it may seem that guardians may adopt after the final settlement and approval of their accounts, but this is nothing more than a play of words. From the moment that their accounts are finally settled and approved they are no longer guardians, and they adopt, if they do so, just the same as any other stranger. 1 Civil Code, Art. 173; II Manresa, 71. 2 Art. 173. I Falcon, 200. 4 Civil Code, Art. 173: Code of Civil Procedure, Sec. 765. $ Civil Code, Art. 27; Code of Civil Procedure, Sec. 765. Civil Code, Art. 174 (4); Code of Civil Procedure, Sec. 765. 1 Civil Code, Art. 174 (4). Code of Civil Procedure, Secs. 765, 766. Civil Code, Art. 174 (4); Code of Civil Procedure, Sec. 766. 10 Sec. 766. 1 Civil Code, Art. 174 (3); Code of Civil Procedure, Sec. 765. IDEM: HUSBAND AND WIFE.-The Spanish law prohibits either spouse from adopting without the consent of the other;1 the American law does not permit other than a joint adoption by the two, except in the case of a stepfather adopting his stepchild.' UNDER THE SPANISH LAW.-One of the most striking features of the Civil Code which is absent from the Code of Civil Procedure is the absolute prohibition on certain persons to adopt: the clergy, and those with legitimate or legitimated children.' IDEM: THE CLERGY.—The inhibition on the clergy to adopt extends only to those who profess the Catholic religion. The Spanish commentators are in accord with this inhibition. Falcon says: "With reason does it (the Civil Code) prohibit from adopting those like the clergy, have previously renounced the pleasures of who To those who have been trained in the modern idea that laws should not preclude certain classes of persons from the enjoyment of privileges opened to others, simply because of their religious vocation and affiliation, this provision may seem absurd; but, howsoever we may differ from it, the reason on which it is based is clear: the Union of the Church and State sanctioned by the Spanish Crown and people. In a country, where, like Spain, the Cross and the Sword have for centuries marched together in search for territories and power for the same Monarch; and where the clergy have always shared in the deliberations of the Assemblies, counselled public officials, advised the King, and in a thousand other ways participated in the conduct of the Government, it is not at all strange to find the civil laws seeking to be in harmony with the cannons of the Church. PERSONS WITH LEGITIMATE OR LEGITIMATED CHILDREN.-The existence or non-existence of other children is not taken into consideration by the American law in determining who may adopt; but the Spanish law permits adoption only in the absence of legitimate or legitimated children." The wisdom of the Spanish law in this regard cannot be spoken of too highly. It tends to avoid the lamentable dissensions which may naturally follow the introduction into the family of strangers entitled to share with the other children the care and affection of the parents. Especially great is the danger of internal friction where, as in the Code of Civil Procedure, the adopted is placed in an equal footing with those begotten by the parents themselves, and invested with the same rights to support, care, inheritance, and so on. 1 Civil Code, Art. 174 (4). Code of Civil Procedure, Secs. 765, 766. Civil Code, Art. 174 (1,2). I Falcon, 200. As Manresa says: "The clergy are not permitted to adopt out of respect to the celibacy which the religion imposes." II, 73. See also V. Sanchez Roman, 1077, 1078. Civil Code, Art. 174 (2). WHO MAY BE ADOPTED GENERALLY.—While the Code of Civil Procedure permits only minors to be adopted,' the Civil Code allows the adoption of those who have already attained majority as well as of minors." However, as every one is released from parental authority from the moment he arrives at majority, it would seem that the adoption of those of age would pass no patria potestas to the adopting parent, and its whole effect would be limited to the use by the adopted of the name of the adopter together with that of his natural parent's if it suits him to do so." ILLEGITIMATE CHILDREN.-Can one adopt his own illegitimate children? Neither Code expressly prohibits it, and the Spanish writers say that the omission has probably been made intentionally in order that the father may be given an opportunity to fulfill the duties he owes to his child, and the latter may find in his parental home the protection and care which is his due. But v hile it is true that to permit it would lead to such good results, still it is believed that it cannot be legally done. The underlying principle of adoption is the creation of an artificial relationship of paternity and filiation between persons who are not so by nature. The person to be adopted must be the child of another. The authorities uphold this statement. They unanimously emphasize the absence of a natural relationship. Thus the Civil Code of Guatemala says: "La adopción ó prohijamiento es el acto de tomar por hijo al que no lo es del adoptante." PROCEDURE The procedure for adoption is practically the same in the Spanish and American laws. A petition has to be presented in a Court of First Instance; notice given; hearing had; the consent of the person to be adopted, if of a certain age,' and that of his parents, or guardian, if a minor, given; a formal decree rendered by the Court, and made a matter of record.9 EFFECTS OF ADOPTION PARENTAL AUTHORITY.-Both the Code of Civil Procedure and the Civil Code provide for a transfer of parental authority from the natural to the adopting parent.10 1 Sec. 765. 2 Art. 178; II Manresa,72. 3 Civil Code, Art. 167 (2); 314 (2). 4 I Falcon, 201, 204 (note 1). 5 "El Código no habrá creido conveniente establecer sobre este punto prohibición ni declaración alguna, en consideración sin duda á que con la adopción podrá llenarse un deber moral y de conciencia." II Manresa, 72; V. Sanchez Roman, 1077. 6 II Manresa, 71; I Bouvier's Law Dictionary, 104. 7 23 under the Civil Code, Art. 320; 14 under Code of Civil Procedure, Sec. 765. 8 Civil Code, Art. 178; Code of Civil Procedure, Sec. 765. 9 Civil Code, Art. 179; Code of Civil Procedure, Sec. 767. 10 Civil Code, Art. 177; Code of Civil Procedure, Sec. 768. |