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The Warsaw Voice » Law » November 22, 2002
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Making a Choice
November 22, 2002   
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For thousands of people, adoption offers an opportunity to build a family. For orphans and children abandoned by their parents, it opens the possibility of having a happy and normal childhood.

Adoption was taken over from Roman law where if first occurred as full adoption (adoptio plena), which could not be dissolved; from the time of Emperor Justinian, it was replaced by incomplete adoption (adoptio minus plena), which permitted dissolution.

Full adoption is when one recognizes a child born to another woman as one's own, with all the consequences this entails. Then the legal, psychological, material and moral status of the child becomes identical to that of a child raised by their biological parents.
Adoption leads to a number of legal consequences including the change of the child's surname to that of the adoptive parents-a new birth certificate is issued for the child. The adopted child acquires all property rights linked with the new family, including inheritance. This is accompanied by the cessation of all rights and obligations of the child with regard to the natural family and the acquisition of these rights with regard to the adoptive family, including alimony.

In the psychological and moral realm, full adoption means that the adoptive parents take on full responsibility for the development and upbringing of the child, as in the case of their own children. Even major upbringing or health problems cannot be grounds for dissolving adoption, because in natural families such difficulties also exist and are not a reason for the child to part with his or her parents.

In practice, adoption is a prolonged process in which a couple mature in their role as adoptive parents, and the child adjusts to the new reality, which often represents revolutionary changes in his or her life.

About 2,500 adoptions are performed in Poland every year. Public and nonpublic adoption centers are in operation. Their main purpose is to help orphaned children by finding and preparing people wanting to adopt them. Specialists employed in these centers-psychologists, educators and doctors-help people make the mature decision to adopt a child. After adoption, the parents can expect to receive support from these centers in solving problems occurring in rearing.

Some adoption centers, in keeping with their status, run preparatory courses for those seeking to become adoptive parents. The course covers meetings and individual and group activities thanks to which specific "assistance groups" are formed from people sharing the same situation.

Registration in an adoption center and participation in the preparatory course helps prospective adoptive parents in the formal-and-legal aspects as well. This is because the opinion of the adoption center (presented in court) confirms the maturity of those applying to adopt an orphan.

Adoption is a secret process in Poland. None of the persons participating (adoption center employees, lawyers, guardians, orphanage employees etc.) is allowed to reveal the details of the case, especially when it comes to the personal data of the child and its natural parents as well as the adoptive parents. The adopted child can ask-by submitting an appropriate application to the family court-that this information is only revealed after he or she comes of age.

Article 111 § 1 of the Family and Guardianship Code states that only people with "full capacity for legal acts" can become adoptive parents, "if their personal qualifications justify the belief that they will properly discharge their responsibilities as adoptive parents." Adoption is open to both childless married couples and couples with children of their own or unmarried persons. However, joint adoption is exclusively open to married couples (Art. 115 § 1). For example, common-law partners are not eligible.

To check the personal qualifications of the prospective parents, the court undertakes a number of activities such as community interview, psychological tests and requires that the necessary documents be submitted-certificate of birth (for unmarried people), a copy of the certificate of marriage (for married couples), medical statements on their health condition, results of medical tests for sexually transmitted diseases, a statement from a mental health clinic and a detoxification center and a statement confirming their income. If the applicants have been through an adoption center, specialists working in this institution need to prepare an opinion on them.

A person seeking to adopt a child must be of legal age. The difference in age between the prospective adoptive parents and the child is important. The code does not specify this precisely, limiting itself to stating that "there should be an appropriate difference in age between the adoptive parents and the child" (Art. 114 § 2). However, practice shows that the difference should not exceed 40 years. Of course, each situation is reviewed on an individual basis and it cannot be ruled out that the court will permit 45-year-old parents to adopt an infant, for example.

Only minors can be adopted. With children over 13, their own consent is required under Art. 118 § 1. However, paradoxically, many couples seeking to become adoptive parents have to wait for years even though orphanages are full of "social orphans." Relatively few adoptions are performed due to the legal status of these children. Only "free orphans" (under law) can be adopted. In other words, their biological parents must renounce their parental rights and express consent to adoption, without naming the adoptive parents; or a family court should deprive them of custody, qualifying their children for adoption. In some cases, parents whose children are in orphanages have limited custody rights, rather than none at all, which means that these children do not qualify for adoption.

The legal status of natural orphans is regulated by the death of their biological parents. The interests of children qualified for adoption are represented by their legal guardians appointed by the court at the request of the adoption center or the center in which the orphans stay. Without the guardian's consent, adoption may not be pronounced.

Under special circumstances, the court is authorized to pronounce adoption against the will of the guardian, yet this must be justified by the good of the child (Art. 120). Persons wishing to bring up orphans whose legal status is not regulated can seek permission to establish a foster family or open a foster home.
In Poland, adoption of children by foreign families is only possible when all the conditions required in the adoption process are met, and the adoptive parents agree to reside with the child in Poland for some time. This is referred to as a trial period; it is set by the court until it permits adoption. The trial period is designed to foster emotional ties between the foreign adoptive parents and the child. The authorities monitor the behavior of the prospective parents and find out about their motivation; they also grant assistance to the child and the adoptive parents in the new psychological situation. The trial period also increases the chances of making the right decision on the choice of the adoptive family.

Foreign adoption usually applies to children with serious disabilities and health defects. It covers children for whom no adoptive parents can be found in Poland. These children, unless adopted by foreign parents, live in orphanages until they come of age, and then spend the rest of their lives in social welfare centers. About 200 foreign adoptions occur in Poland annually.

FOREIGN ADOPTION

The Ministry of Education, in consultation with the Ministry of Justice, issued an ordinance dated Aug. 17, 1993 on adoption-guardianship centers (Dz. U. No. 84, item 394). Such centers are established to initiate and support substitute forms of family care and upbringing.

Adoptions are performed according to the following rules:

1. If the center running a provincial database fails to enlist a candidate for substitute forms of care and upbringing within three months, it transfers information on the child to a central database run by the Adoption-Guardianship Center in Warsaw.

2. If the latter center fails to enlist an appropriate candidate for foster care inside the country within three months, it can then qualify the child for a foreign adoption. The Ministry of Education issued Decision No. 6, dated March 17, 1995, regulating the responsibilities of adoption-upbringing centers carrying out tasks set by the Ministry of Education as well as centers authorized for foreign cooperation.

On the basis of the aforementioned decision, the ministry authorized the following centers for cooperation with organizations and adoption centers licensed by the governments of other countries in the area of preparing Polish children for adoption linked with a move abroad:

1. Adoption-Guardianship Center in Warsaw run by the School Superintendent in Warsaw at 75 Nowogrodzka St., tel. (+48-22) 621 10 75;

2. National Adoption-Guardianship Center of the Society of Children's Friends (TPD) run by the Main Board of the TPD, Warsaw, 24/26 Jasna St.

Under another decision issued by the Ministry of Education, foreign adoption rights were vested in yet another institution:

3. The Catholic Adoption-Guardianship Center in Warsaw at 194/196 Grochowska St., tel. (+48-22) 610 61 23.

ORPHANAGES

In Poland there are 322 state-run orphanages, housing around 18,000 children as well as 49 orphanages run by private foundations such as religious orders, in which 1,825 children reside. Around 160 family orphanages have been opened, financed by commune authorities and housing 1,056 children. Eleven such institutions, financed by non-governmental foundations, are home to 306 children. Across Poland a total of 21,000 children live in orphanages.

Source: Ministry of Labor and Social Policy

THE LAW

Polish law provides for three forms of adoption: 1) complete, or full and irrevocable; 2) full; and 3) incomplete. Full irrevocable adoption is used when the biological parents express consent for adoption before a guardianship court, without naming the adoptive parents ("consent in blank"). The original birth certificate of the child is then annulled and a new certificate is issued, listing the adoptive parents as the child's parents. Full adoption is marked on the margin of the original certificate of birth. The adopted child receives the surname of the adoptive parent and acquires the rights and obligations resulting from kinship (Art. 121-122 of the family and guardianship code). In the area of inheritance, Article 937 of the civil code is applied. If one of the spouses adopts the child of the other spouse, both spouses have joint custody (Art. 123 § 2). Incomplete adoption, whose scope is narrower than that of full adoption, and its consequences are limited, can only be ruled at the clear request of the adoptive parent and with the consent of the persons whose consent is required in such situations (Art. 118 and 124 of the family and guardianship code); it is treated as exceptional. For important reasons, full or incomplete adoption can be dissolved at the request of the adoptive parent, prosecutor or the child subject to adoption, unless it violates the rights of the latter (Art. 125 and 127 of the family and guardianship code).

Under canon law, adoption rules out marriages between persons related under law. Civil law provides for less stringent restrictions in this area (Art. 15 § 1 of the family and guardianship code).

Under international law (Art. 20 and 21 of the Convention on Children's Rights, passed by the United Nations General Assembly on Nov. 20, 1989, and ratified by Poland on April 30, 1991 (Dziennik Ustaw journal of laws, No. 120, item 526), adoption should take into account the cultural, religious and linguistic identity of the child.
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