Family Code and Ipl

7/29/2019 Family Code and Ipl

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Infertility and adoption

Posted below are links to several articles by Sandra Glahn on the issues of infertility and adoption. Sandraknows from personal experience how difficult infertility can be; she endured a decade of infertilitytreatment that included multiple pregnancy losses, three failed adoptions, and an ectopic pregnancy. Shequotes Alice Domar, Ph.D., director of the Mind/Body Center for Womens Health in Beth Israel

Deaconess Medical Center at Harvard Medical School: The depression and anxiety experienced byinfertile women are equivalent to that in women suffering from a terminal illness.

Positive Adoption Language Infertility: Myths and Facts A Heart's Desire: Encouragement for Couples Facing Infertility Infertility Tries Patients' Patience Facing the No-Baby Blues

Philippine laws on adoption

The Philippines has two laws on adoption, namely, [1]Republic Act 8552 Domestic Adoption Act of

1998; and [2]Republic Act 8043 Inter-Country Adoption Act of 1995.(Portions of both laws havebeen amended by RA 9523 as I will discuss below.)

RA 8552 amended Articles 183 up to 193 of the Family Code of the Philippines and is the governing lawfor Filipino citizens adopting other Filipinos (whether relatives or strangers) with some exceptions. UnderArticle 192 of the FC, the adopting couple may under certain circumstances ask for judicial rescission ofthe adoption. Rescission of adoption is no longer allowed under RA 8552.

RA 8043 on the other hand, governs the adoption of Filipinos by foreigners, and is implemented by the

Inter-Country Adoption Board. For more information on inter-country adoption, please surf to thewebsites of theICAB and theFilipino Adoptees Network.

Please take note that RA 8552 (and not RA 8043) applies when a foreigner who is married to aFilipino citizen seeks to adopt jointly with his/her spouse a relative within the fourth degree of

consanguinity or affinity of the Filipino spouse.

Difference between adoption and simulation of birth

Adoption is a legal process while simulation of birth is an illegal practice resorted to by a lot of

Filipinos.Adoption is the legal process by which a child becomes the legitimate child of the adoptingperson/s. Simulation of birth on the other hand occurs when a childless couple, for example, comes intopossession of a baby or child, given to them by a midwife, an unwed mother or a relative, and this couple

then applies for a birth certificate, making it appear that the baby or child is their biological offspring.

Under RA 8552, simulation of birth is a criminal offense punishable by eight years imprisonment and afine of fifty thousand pesos.

Steps and court procedures in domestic adoption

The Supreme Court has issuedguidelines in petitions for adoptions under RA 8552 and RA 8043.

Basically, a petition for domestic adoption under RA 8552 will go through these steps:[1]A lawyer prepares the petition for the person or persons wanting to adopt. The petition includesdocuments like birth certificates, marriage certificate, proof of financial capacity (like ITR, bank deposit,
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etc), clearances (barangay, police, NBI, fiscal, court), and others as proof of good moral character, goodhealth, etc.

[2]Upon payment of the filing or docket fee, the petition is raffled to a Family Court (of the city nearestthe place where the petitioner resides). If the petition is sufficient in form and substance, the court issuesan order, usually within a month after the filing of the petition, setting the case for initial hearing and

ordering the court social worker to conduct a case study and home visit.

[3]The court order is published in a newspaper of general circulation once a week for three weeks. Thenewspaper is chosen by raffle conducted by the Office of the Clerk of Court, in compliance with aSupreme Court circular. If a small time newspaper wins in the raffle, the total cost for the publicationcould be as low as Php 7,000. But if a big time newspaper like the Bulletin or the Inquirer wins the raffle,

the total cost could be as high as Php 50,000.

[4]Before the initial hearing, the social worker conducts a case study and home visit. The social workersubmits his investigation report and recommendations to the court before the initial hearing.

[5]On the date of the initial hearing, the petitioner and the prospective adoptee must be present. The

lawyer presents what are known as the jurisdictional facts (petition, proof of publication in newspaper,notice to the Office of the Solicitor General, etc).

[6]If there is no opposition to the petition for adoption by any party, then the lawyer asks the courtpermission for an ex-parte presentation of evidence, done before only the court stenographer and the courtappointed commissioner (the branch clerk of court). The court however can require presentation of

evidence in open court. All in all, the case could take up to about a year to finish.

[7]If the court decision is favorable and there is no appeal by any party, then the court issues a Certificateof Finality. The lawyer then coordinates with the Local Civil Registrar (of the town or city where thecourt is located, and the adoptees birthplace) and the National Statistics Office for the issuance of a new

birth certificate bearing the petitioners surname.

Why should an unwed mother adopt her own child?

Legally speaking, the relationship between any unwed mother and her child is illegitimate. In order tolegitimize the relationship between an unwed mother and the illegitimate child, the mother must file a

petition underRA 8552, our domestic adoption law.

What if an unwed mother gets married subsequently to the biological father?

The legal remedy would not be adoption under RA 8552 butlegitimation under Articles 177 to 182 of the

Family Code (that is, if there were no legal obstacles when the child was conceived or born).

What if an unwed mother gets married to a man (not the biological father) who wants to adopt her

child?

RA 8552 provides that husband and wife must adopt jointly. In this situation, the result would be (1) therelationship between the mother and the child will become legitimate, and (2) the man will acquire

parental authority over the child.

Is the consent of the father of an illegitimate child required in adoption?

Section 9, paragraph (b) of RA 8552 states that the written consent of the biological parent/s is necessary.
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UP College of Law professor Danilo L. Concepcion in his article Domestic Adoption: Law andProcedure (IBP Journal, March 2009, Vol. 34, No. 1) states that the reason why RA 8552 requires such

consent is that their parental authority over child (the prospective adoptee) will be terminated. Severalwomen have e-mailed about this situation. Either they do not know where the biological father of theirillegitimate children is or the father is making things difficult for them. One woman even told me that the

biological father asked her for money in exchange for his written consent.

Prof. Concepcion argues (and I agree with him) that since an illegitimate child is under the sole

parental authority of the mother underArticle 176 of the Family Code,then the consent of the

biological father is not necessary. Prof. Concepcion states that the problem is with the wording of thelaw. He says that instead of biological parent/s the law should have used legal parent/s instead.

What can women with illegitimate children do in this kind of situation? They can petition Congressto amend RA 8552 so that the written consent of the father should not be required. Or they can file a

petition for declaratory relief before a competent court asking that the term biological parent/s beinterpreted to mean legal parent/s.

Joint adoption by husband and wife is mandatory

Please take note that Section 7 of RA 8552 provides that a husband and wife shall jointly adopt.

This is a mandatory requirement with the following exceptions:(i) if one spouse seeks to adopt the legitimate son/daughter of the other; or

(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, However, that the other

spouse has signified his/her consent thereto; or

(iii) if the spouses are legally separated from each other.

In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of the other,

joint parental authority shall be exercised by the spouses.

The mandatory requirement is in consonance with the concept of joint parental authority over the child,which is the ideal situation. 7 As the child to be adopted is elevated to the level of a legitimate child, it is

but natural to require the spouses to adopt jointly. The rule also insures harmony between the spouses.

Is the adoptees right to inherit from both the adoptive and biological parents under the Family

Code no longer true under RA 8552?

Please take note that the Family Code provisions on adoption have been superseded by RA 8552. While

Article 189 of the Family Code specifically provides that the adoptee has the right to inherit from both thebiological and adoptive parents, this provision does not appear in RA 8552.

The law only states: Sec. 18. Succession.In legal and intestate succession, the adopter(s) and theadoptee shall have reciprocal rights of succession without distinction from legitimate Filiations. However,if the adoptee and his/her biological parent(s) had left a will, the law on testamentary succession shallgovern.

It seems therefore that the right of an adopted child to inherit from both biological and adoptive

parents under the Family Code has been repealed by RA 8552. However, in law, implied repeals are

frowned upon. Thus, it may be argued that Article 189 of the Family Code is still good law.
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For issues regarding succession (inheritance in laymans term) and adoption under RA 8552, pleaseread Revisiting the Philippine Laws on Adoption: Issues on Succession from the Ateneo Law Journal.

Please also read the article on domestic adoption by UP Prof. Concepcion which I mentioned above. Prof.Concepcion holds the same view I have that those provisions of the Family Code that have not beenexpressly repealed by RA 8552 are still applicable.

Rescission (revocation) of adoption by adoptive parents no longer allowed under RA 8552

The Family Code allowed adoptive parents to apply for judicial rescission or revocation of the decree ofadoption. For the childs best interest, however, RA 8552 no longer allows rescission by the adoptive

parents. Only the adopted child can ask for the revocation of the adoption.

What if the adopted child becomes wayward morally or ungrateful, or physically threatens the adoptiveparents? The legal remedy is to disinherit the child; please read my article Disinheriting children and

descendants, legitimate as well as illegitimate.

What about adoption by a wife and husband (one a former Filipino citizen and the other a natural-

born citizen of another country)?

The Supreme Court decided this issue in the case ofRepublic of the Philippines vs. Toledano G.R.No. 94147 June 8, 1994. Please take note that the case was decided under the provisions of the Family

Code on adoption which have been superseded by RA 8043 and RA 8552. However, the point ofcontention in this case, mandatory joint adoption by both husband and wife under Article 185 of theFamily Code, has been carried over to RA 8552, specifically, Section 7.

The facts of the Toledano caseOn February 21, 1990, in a verified petition filed before the Regional Trial Court of Iba, Zambales,

private respondents spouses Clouse sought to adopt the minor, Solomon Joseph Alcala, the youngerbrother of private respondent Evelyn A. Clouse. In an Order issued on March 12, 1990, the petition was

set for hearing on April 18, 1990. The said Order was published in a newspaper of general circulation in

the province of Zambales and City of Olongapo for three (3) consecutive weeks.

The principal evidence disclose that private respondent Alvin A. Clouse is a natural born citizen of theUnited States of America. He married Evelyn, a Filipino on June 4, 1981 at Olongapo City. On August

19, 1988, Evelyn became a naturalized citizen of the United States of America in Guam. They arephysically, mentally, morally, and financially capable of adopting Solomon, a twelve (12) year old minor.

Since 1981 to 1984, then from November 2, 1989 up to the present, Solomon Joseph Alcala was and hasbeen under the care and custody of private respondents. Solomon gave his consent to the adoption. His

mother, Nery Alcala, a widow, likewise consented to the adoption due to poverty and inability to supportand educate her son.

Mrs. Nila Corazon Pronda, the social worker assigned to conduct the Home and Child Study, favorablyrecommended the granting of the petition for adoption.

Finding that private respondents have all the qualifications and none of the disqualifications provided by

law and that the adoption will redound to the best interest and welfare of the minor, respondent judgerendered a decision on June 20, 1990, disposing as follows:

WHEREFORE, the Court grants the petition for adoption filed by Spouses Alvin A. Clouse and EvelynA. Clouse and decrees that the said minor be considered as their child by adoption. To this effect, the
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Court gives the minor the rights and duties as the legitimate child of the petitioners. Henceforth, he shallbe known as SOLOMON ALCALA CLOUSE.

The Court dissolves parental authority bestowed upon his natural parents and vests parental authority tothe herein petitioners and makes him their legal heir. Pursuant to Article 36 of P.D. 603 as amended, thedecree of adoption shall be effective as of the date when the petition was filed. In accordance with Article

53 of the same decree, let this decree of adoption be recorded in the corresponding government agency,particularly the Office of the Local Civil Registrar of Merida, Leyte where the minor was born. The saidoffice of the Local Civil Registrar is hereby directed to issue an amended certificate of live birth to theminor adopted by the petitioners.Let copies of this decision be furnished (sic) the petitioners, DSWD, Zambales Branch, Office of theSolicitor General and the Office of the Local Civil Registrar of Merida, Leyte.

The Office of the Solicitor General appealed to the Supreme Court on a pure question of law, that is,under Article 185 of the Family Code, the Clouse couple was not qualified to adopt.

The ruling of the Supreme CourtUnder Articles 184 and 185 of Executive Order (E.O.) No. 209, otherwise known as The Family Code ofthe Philippines, private respondents spouses Clouse are clearly barred from adopting Solomon Joseph

Alcala.

Article 184, paragraph (3) of Executive Order No. 209 expressly enumerates the persons who are not

qualified to adopt, viz.:

(3) An alien, except:

(a) A former Filipino citizen who seeks to adopt a relative by consanguinity;

(b) One who seeks to adopt the legitimate child of his or her Filipino spouse; or(c) One who is married to a Filipino citizen and seeks to adopt jointly with his or her spouse a relative byconsanguinity of the latter. Aliens not included in the foregoing exceptions may adopt Filipino children in

accordance with the rules on inter-country adoption as may be provided by law.

There can be no question that private respondent Alvin A. Clouse is not qualified to adopt SolomonJoseph Alcala under any of the exceptional cases in the afore quoted provision.

In the first place, he is not a former Filipino citizen but a natural born citizen of the United States ofAmerica.

In the second place, Solomon Joseph Alcala is neither his relative by consanguinity nor the legitimatechild of his spouse.

In the third place, when private respondents spouses Clouse jointly filed the petition to adopt Solomon

Joseph Alcala on February 21, 1990, private respondent Evelyn A. Clouse was no longer a Filipino

citizen. She lost her Filipino citizenship when she was naturalized as a citizen of the United States in1988.

Private respondent Evelyn A. Clouse, on the other hand, may appear to qualify pursuant to paragraph 3(a)

of Article 184 of E.O. 209. She was a former Filipino citizen. She sought to adopt her younger brother.Unfortunately, the petition for adoption cannot be granted in her favor alone without violating Article 185which mandates a joint adoption by the husband and wife. It reads:

Article 185. Husband and wife must jointly adopt, except in the following cases:


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(1) When one spouse seeks to adopt his own illegitimate child; or

(2) When one spouse seeks to adopt the legitimate child of the other.

Article 185 requires a joint adoption by the husband and wife, a condition that must be read alongtogether with Article 184.

As you can read, the Supreme Court ruled that the adoption must be filed jointly by husband and

wife, unless they fall under the exceptions. Also, when adopting jointly, each one of them must be

qualified to adopt on his own right.

Modified procedure for relative adoption cases under RA 8043(as approved by the ICAB on August

30, 2007)

Relative Adoption as applies to inter-country adoption refers to the adoption of Filipino

child/children by relatives residing abroad within the fourth (4th) degree of Consanguinity.

Former Filipinos permanently residing abroad and/or foreigners intending to undertake either local

adoption (the filing and the finalization of the adoption is done in the Philippines and have the intentionof bringing the adoptive child to their country of residence) or through the inter-country adoption routeMUST first secure the approval of the Central Authority on Inter-country Adoption in the country of

residence before filing any adoption petition. Adoption applicants from the USA must first secure theirsuitability and eligibility to adopt (I800A) from the USA Central Authority on Inter-Country Adoption.Canada based adoption applicants obtain such approval from the Central Authority on Inter-country

Adoption of the Province or Territory of residence.1. The Questionnaire for Relative Adoptive Applicants (ICAB Form No.2) which can be downloaded

from the ICAB website shall be submitted by the prospective adoptive parents (PAPs) to the CentralAuthorities (CAs)/ Foreign Adoption Agencies (FAAs). The CAs/FAAs shall endorse to ICAB thecompleted Questionnaire for Relative Adoptive Applicants (QRAA) with the agency's assessment and

recommendation on the prospective adoptive parents.

2. If the CA/FAA favorably recommends the PAPs, the ICAB social worker will then request theCA/FAA to proceed with the preparation of the PAPs dossier. On the other hand, based on the significantdata on the child as indicated in the QRAA, the assigned ICAB Social Worker will request the DSWD -

Field Office (FO) to conduct the Child Study Report with supporting documents. Periodic follow-ups willbe made with the DSWD-FO. (The time frame from request to ICABs receipt of the report will be 3-6months. In situations where the FO could not prepare the Child Study Report within the expected timeframe in view of heavy adoption caseload, the ICAB social worker will assist in the conduct of the CSR).

3. Once the ICAB receives from the DSWD-FO the childs dossier and the complete adoption applicationdossier of the PAPs from the CA or FAA, the ICAB social worker will prepare an executive summary on

the case with his/her recommendation on the childs adoptive placement for the disposition of the Board.

Misinterpretation and misunderstanding of RA 9523

Republic Act 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 amended certain portions of RA 8552 , RA 8043, and Presidential Decree No.

603 Child and Youth Welfare Code.
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Contrary to erroneous reports in the media and the Internet, RA 9523 did not turn the whole

adoption process from a judicial proceeding under the Family Courts to an administrative

proceeding under the DSWD. RA 9253 applies only to surrendered, abandoned, neglected, and

dependent children who are subject to adoption.

Under RA 9523, the time period before a child is considered abandoned has been reduced to a maximum

of three months from the original minimum of six months. RA 9523 made the declaration of

abandonment of child administrative in nature which now requires just a certification signed by the

DSWD secretary instead of a judicial order. Because of the new regulations, a child could be declared

legally available for adoption in less than two months. Previously, it took as long as three years in court

proceedings for such a declaration.

Republic of the Philippines

Congress of the PhilippinesMetro Manila

Tenth Congress

Republic Act No. 8552 February 25, 1998

AN ACT ESTABLISHING THE RULES AND POLICIES ON THE DOMESTICADOPTION OF FILIPINO CHILDREN AND FOR OTHER PURPOSES

Be it enacted by the Senate and House of Representatives of the Philippines in Congressassembled::

ARTICLE I

GENERAL PROVISIONS

Section 1. Short Ti tle.This Act shall be known as the "Domestic Adoption Act of 1998."

Section 2. Declaration of Policies.(a) It is hereby declared the policy of the State to ensurethat every child remains under the care and custody of his/her parent(s) and be provided with

love, care, understanding and security towards the full and harmonious development of his/her

personality. Only when such efforts prove insufficient and no appropriate placement or adoption

within the child's extended family is available shall adoption by an unrelated person beconsidered.


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(b) In all matters relating to the care, custody and adoption of a child, his/her interest shall be the

paramount consideration in accordance with the tenets set forth in the United Nations (UN)

Convention on the Rights of the Child; UN Declaration on Social and Legal Principles Relatingto the Protection and Welfare of Children with Special Reference to Foster Placement and

Adoption, Nationally and Internationally; and the Hague Convention on the Protection of

Children and Cooperation in Respect of Intercountry Adoption. Toward this end, the State shallprovide alternative protection and assistance through foster care or adoption for every child whois neglected, orphaned, or abandoned.

(c) It shall also be a State policy to:

(i) Safeguard the biological parent(s) from making hurried decisions to relinquish his/herparental authority over his/her child;

(ii) Prevent the child from unnecessary separation from his/her biological parent(s);

(iii) Protect adoptive parent(s) from attempts to disturb his/her parental authority andcustody over his/her adopted child.

Any voluntary or involuntary termination of parental authority shall be administratively

or judicially declared so as to establish the status of the child as "legally available foradoption" and his/her custody transferred to the Department of Social Welfare and

Development or to any duly licensed and accredited child-placing or child-caring agency,

which entity shall be authorized to take steps for the permanent placement of the child;

(iv) Conduct public information and educational campaigns to promote a positive

environment for adoption;

(v) Ensure that sufficient capacity exists within government and private sector agencies to

handle adoption inquiries, process domestic adoption applications, and offer adoption-related services including, but not limited to, parent preparation and post-adoption

education and counseling; and

(vi) Encourage domestic adoption so as to preserve the child's identity and culture in

his/her native land, and only when this is not available shall intercountry adoption be

considered as a last resort.

Section 3. Definiti on of Terms.For purposes of this Act, the following terms shall be defined

as:

(a) "Child"is a person below eighteen (18) years of age.

(b) "A child legally available for adoption" refers to a child who has been voluntarily or

involuntarily committed to the Department or to a duly licensed and accredited child-placing or child-caring agency, freed of the parental authority of his/her biological

parent(s) or guardian or adopter(s) in case of rescission of adoption.


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(c) "Voluntarily committed child" is one whose parent(s) knowingly and willingly

relinquishes parental authority to the Department.

(d) "Involuntarily committed child" is one whose parent(s), known or unknown, has been

permanently and judicially deprived of parental authority due to abandonment;

substantial, continuous, or repeated neglect; abuse; or incompetence to discharge parentalresponsibilities.

(e) "Abandoned child"refers to one who has no proper parental care or guardianship orwhose parent(s) has deserted him/her for a period of at least six (6) continuous months

and has been judicially declared as such.

(f) "Supervised trial custody"is a period of time within which a social worker oversees

the adjustment and emotional readiness of both adopter(s) and adoptee in stabilizing their

filial relationship.

(g) "Department"refers to the Department of Social Welfare and Development.

(h) "Child-placing agency"is a duly licensed and accredited agency by the Department to

provide comprehensive child welfare services including, but not limited to, receiving

applications for adoption, evaluating the prospective adoptive parents, and preparing theadoption home study.

(i)"Child-caring agency" is a duly licensed and accredited agency by the Department

that provides twenty four (24)-hour residential care services for abandoned, orphaned,

neglected, or voluntarily committed children.

(j)"Simulation of birth"is the tampering of the civil registry making it appear in the birthrecords that a certain child was born to a person who is not his/her biological mother,

causing such child to lose his/her true identity and status.

ARTICLE II

PRE-ADOPTION SERVICES

Section 4. Counseli ng Service.The Department shall provide the services of licensed socialworkers to the following:

(a)Biological Parent(s)Counseling shall be provided to the parent(s) before and after

the birth of his/her child. No binding commitment to an adoption plan shall be permittedbefore the birth of his/her child. A period of six (6) months shall be allowed for the

biological parent(s) to reconsider any decision to relinquish his/her child for adoption

before the decision becomes irrevocable. Counseling and rehabilitation services shall alsobe offered to the biological parent(s) after he/she has relinquished his/her child for

adoption.


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Steps shall be taken by the Department to ensure that no hurried decisions are made and

all alternatives for the child's future and the implications of each alternative have been

provided.

(b)Prospective Adoptive Parent(s)Counseling sessions, adoption fora and seminars,

among others, shall be provided to prospective adoptive parent(s) to resolve possibleadoption issues and to prepare him/her for effective parenting.

(c)Prospective AdopteeCounseling sessions shall be provided to ensure that he/sheunderstands the nature and effects of adoption and is able to express his/her views on

adoption in accordance with his/her age and level of maturity.

Section 5. Location of Unknown Parent(s).It shall be the duty of the Department or the child-

placing or child-caring agency which has custody of the child to exert all efforts to locate his/her

unknown biological parent(s). If such efforts fail, the child shall be registered as a foundling andsubsequently be the subject of legal proceedings where he/she shall be declared abandoned.

Section 6.Support Services.The Department shall develop a pre-adoption program whichshall include, among others, the above mentioned services.

ARTICLE III

ELIGIBILITY

Section 7. Who May Adopt.The following may adopt:

(a) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights,

of good moral character, has not been convicted of any crime involving moral turpitude,

emotionally and psychologically capable of caring for children, at least sixteen (16) yearsolder than the adoptee, and who is in a position to support and care for his/her children in

keeping with the means of the family. The requirement of sixteen (16) year differencebetween the age of the adopter and adoptee may be waived when the adopter is the

biological parent of the adoptee, or is the spouse of the adoptee's parent;

(b) Any alien possessing the same qualifications as above stated for Filipino nationals:

Provided, That his/her country has diplomatic relations with the Republic of the

Philippines, that he/she has been living in the Philippines for at least three (3) continuousyears prior to the filing of the application for adoption and maintains such residence until

the adoption decree is entered, that he/she has been certified by his/her diplomatic or

consular office or any appropriate government agency that he/she has the legal capacityto adopt in his/her country, and that his/her government allows the adoptee to enterhis/her country as his/her adopted son/daughter:Provided, Further,That the requirements

on residency and certification of the alien's qualification to adopt in his/her country may

be waived for the following:

(i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th)

degree of consanguinity or affinity; or


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(ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse;

or

(iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her

spouse a relative within the fourth (4th) degree of consanguinity or affinity of the

Filipino spouse; or

(c) The guardian with respect to the ward after the termination of the guardianship and

clearance of his/her financial accountabilities.

Husband and wife shall jointly adopt, except in the following cases:

(i) if one spouse seeks to adopt the legitimate son/daughter of the other; or

(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided,

However, that the other spouse has signified his/her consent thereto; or

(iii) if the spouses are legally separated from each other.

In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of the

other, joint parental authority shall be exercised by the spouses.

Section 8. Who M ay Be Adopted.The following may be adopted:

(a) Any person below eighteen (18) years of age who has been administratively orjudicially 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 consistentlyconsidered 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 saidparent(s).

Section 9. Whose Consent is Necessary to the Adoption.After being properly counseled andinformed of his/her right to give or withhold his/her approval of the adoption, the written consent

of the following to the adoption is hereby required:

(a) The adoptee, if ten (10) years of age or over;


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(b) The biological parent(s) of the child, if known, or the legal guardian, or the proper

government instrumentality which has legal custody of the child;

(c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the

adopter(s) and adoptee, if any;

(d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter if living

with said adopter and the latter's spouse, if any; and

(e) The spouse, if any, of the person adopting or to be adopted.

ARTICLE IV

PROCEDURE

Section 10. Hur ri ed Decisions.In all proceedings for adoption, the court shall require proof

that the biological parent(s) has been properly counseled to prevent him/her from making hurried

decisions caused by strain or anxiety to give up the child, and to sustain that all measures tostrengthen the family have been exhausted and that any prolonged stay of the child in his/herown home will be inimical to his/her welfare and interest.

Section 11. Case Study.No petition for adoption shall be set for hearing unless a licensed

social worker of the Department, the social service office of the local government unit, or any

child-placing or child-caring agency has made a case study of the adoptee, his/her biologicalparent(s), as well as the adopter(s), and has submitted the report and recommendations on the

matter to the court hearing such petition.

At the time of preparation of the adoptee's case study, the concerned social worker shall confirm

with the Civil Registry the real identity and registered name of the adoptee. If the birth of theadoptee was not registered with the Civil Registry, it shall be the responsibility of the concerned

social worker to ensure that the adoptee is registered.

The case study on the adoptee shall establish that he/she is legally available for adoption and that

the documents to support this fact are valid and authentic. Further, the case study of theadopter(s) shall ascertain his/her genuine intentions and that the adoption is in the best interest of

the child.

The Department shall intervene on behalf of the adoptee if it finds, after the conduct of the case

studies, that the petition should be denied. The case studies and other relevant documents and

records pertaining to the adoptee and the adoption shall be preserved by the Department.

Section 12. Supervised Trial Custody.No petition for adoption shall be finally granted until

the adopter(s) has been given by the court a supervised trial custody period for at least six (6)months within which the parties are expected to adjust psychologically and emotionally to each

other and establish a bonding relationship. During said period, temporary parental authority shall

be vested in the adopter(s).


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The court may motu proprio or upon motion of any party reduce the trial period if it finds the

same to be in the best interest of the adoptee, stating the reasons for the reduction of the period.

However, for alien adopter(s), he/she must complete the six (6)-month trial custody except forthose enumerated in Sec. 7 (b) (i) (ii) (iii).

If the child is below seven (7) years of age and is placed with the prospective adopter(s) througha pre-adoption placement authority issued by the Department, the prospective adopter(s) shall

enjoy all the benefits to which biological parent(s) is entitled from the date the adoptee is placed

with the prospective adopter(s).

Section 13. Decree of Adoption.If, after the publication of the order of hearing has been

complied with, and no opposition has been interposed to the petition, and after consideration ofthe case studies, the qualifications of the adopter(s), trial custody report and the evidence

submitted, the court is convinced that the petitioners are qualified to adopt, and that the adoption

would redound to the best interest of the adoptee, a decree of adoption shall be entered which

shall be effective as of the date the original petition was filed. This provision shall also apply in

case the petitioner(s) dies before the issuance of the decree of adoption to protect the interest ofthe adoptee. The decree shall state the name by which the child is to be known.

Section 14. Civi l Registry Record.An amended certificate of birth shall be issued by the Civil

Registry, as required by theRules of Court,attesting to the fact that the adoptee is the child of

the adopter(s) by being registered with his/her surname. The original certificate of birth shall bestamped "cancelled" with the annotation of the issuance of an amended birth certificate in its

place and shall be sealed in the civil registry records. The new birth certificate to be issued to the

adoptee shall not bear any notation that it is an amended issue.

Section 15. Confidential Nature of Proceedings and Records.All hearings in adoption cases

shall be confidential and shall not be open to the public. All records, books, and papers relatingto the adoption cases in the files of the court, the Department, or any other agency or institutionparticipating in the adoption proceedings shall be kept strictly confidential.

If the court finds that the disclosure of the information to a third person is necessary for purposes

connected with or arising out of the adoption and will be for the best interest of the adoptee, the

court may merit the necessary information to be released, restricting the purposes for which itmay be used.

ARTICLE V

EFFECTS OF ADOPTION

Section 16. Parental Authori ty.Except in cases where the biological parent is the spouse of

the adopter, all legal ties between the biological parent(s) and the adoptee shall be severed andthe same shall then be vested on the adopter(s).

Section 17. Legitimacy.The adoptee shall be considered the legitimate son/daughter of the

adopter(s) for all intents and purposes and as such is entitled to all the rights and obligations

provided by law to legitimate sons/daughters born to them without discrimination of any kind.
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To this end, the adoptee is entitled to love, guidance, and support in keeping with the means of

the family.

Section 18.Succession.In legal and intestate succession, the adopter(s) and the adoptee shall

have reciprocal rights of succession without distinction from legitimate filiation. However, if the

adoptee and his/her biological parent(s) had left a will, the law on testamentary succession shallgovern.

ARTICLE VI

RESCISSION OF ADOPTION

Section 19. Grounds for Rescission of Adoption.Upon petition of the adoptee, with the

assistance of the Department if a minor or if over eighteen (18) years of age but is incapacitated,

as guardian/counsel, the adoption may be rescinded on any of the following grounds committed

by the adopter(s): (a) repeated physical and verbal maltreatment by the adopter(s) despite havingundergone counseling; (b) attempt on the life of the adoptee; (c) sexual assault or violence; or (d)

abandonment and failure to comply with parental obligations.

Adoption, being in the best interest of the child, shall not be subject to rescission by the

adopter(s). However, the adopter(s) may disinherit the adoptee for causes provided in Article 919

of theCivil Code.

Section 20. Ef fects of Rescission.If the petition is granted, the parental authority of the

adoptee's biological parent(s), if known, or the legal custody of the Department shall be restoredif the adoptee is still a minor or incapacitated. The reciprocal rights and obligations of the

adopter(s) and the adoptee to each other shall be extinguished.

The court shall order the Civil Registrar to cancel the amended certificate of birth of the adopteeand restore his/her original birth certificate.

Succession rights shall revert to its status prior to adoption, but only as of the date of judgment of

judicial rescission. Vested rights acquired prior to judicial rescission shall be respected.

All the foregoing effects of rescission of adoption shall be without prejudice to the penalties

imposable under the Penal Code if the criminal acts are properly proven.

ARTICLE VII

VIOLATIONS AND PENALTIES

Section 21. Violations and Penalties.(a) The penalty of imprisonment ranging from six (6)

years and one (1) day to twelve (12) years and/or a fine not less than Fifty thousand pesos

(P50,000.00), but not more than Two hundred thousand pesos (P200,000.00) at the discretion ofthe court shall be imposed on any person who shall commit any of the following acts:

(i) obtaining consent for an adoption through coercion, undue influence, fraud, improper

material inducement, or other similar acts;
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(ii) non-compliance with the procedures and safeguards provided by the law for adoption;

or

(iii) subjecting or exposing the child to be adopted to danger, abuse, or exploitation.

(b) Any person who shall cause the fictitious registration of the birth of a child under the name(s)of a person(s) who is not his/her biological parent(s) shall be guilty of simulation of birth, and

shall be punished by prision mayor in its medium period and a fine not exceeding Fifty thousand

pesos (P50,000.00).

Any physician or nurse or hospital personnel who, in violation of his/her oath of office, shallcooperate in the execution of the abovementioned crime shall suffer the penalties herein

prescribed and also the penalty of permanent disqualification.

Any person who shall violate established regulations relating to the confidentiality and integrityof 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 (P5,000.00) but not more than Ten thousandpesos (P10,000.00), at the discretion of the court.

A penalty lower by two (2) degrees than that prescribed for the consummated offense under thisArticle 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 (2) or more children shall be considered as an offense constituting child traffickingand 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 outany 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 otherlaws, ordinances, executive orders, and proclamations.

When the offender is an alien, he/she shall be deported immediately after service of sentence andperpetually excluded from entry to the country.

Any government official, employee or functionary who shall be found guilty of violating any ofthe 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, saidgovernment official, employee, or functionary concerned shall automatically suffer suspensionuntil the resolution of the case.

Section 22. Rectifi cation of Simulated Bi rths.A person who has, prior to the effectivity of this

Act, simulated the birth of a child shall not be punished for such act:Provided, That the

simulation of birth was made for the best interest of the child and that he/she has been

consistently considered and treated by that person as his/her own son/daughter:Provided,


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further,That the application for correction of the birth registration and petition for adoption shall

be filed within five (5) years from the effectivity of this Act and completed thereafter:Provided,

finally,That such person complies with the procedure as specified in Article IV of this Act andother requirements as determined by the Department.

ARTICLE VIIIFINAL PROVISIONS

Section 23. Adoption Resource and Referr al Of fi ce.There shall be established an AdoptionResources and Referral Office under the Department with the following functions: (a) monitor

the existence, number, and flow of children legally available for adoption and prospective

adopter(s) so as to facilitate their matching; (b) maintain a nationwide information andeducational campaign on domestic adoption; (c) keep records of adoption proceedings; (d)

generate resources to help child-caring and child-placing agencies and foster homes maintain

viability; and (e) do policy research in collaboration with the Intercountry Adoption Board and

other concerned agencies. The office shall be manned by adoption experts from the public and

private sectors.

Section 24.Implementing Rules and Regulations.Within six (6) months from thepromulgation of this Act, the Department, with the Council for the Welfare of Children, the

Office of Civil Registry General, the Department of Justice, Office of the Solicitor General, and

two (2) private individuals representing child-placing and child-caring agencies shall formulatethe necessary guidelines to make the provisions of this Act operative.

Section 25. Appropriations.Such sum as may be necessary for the implementation of theprovisions of this Act shall be included in the General Appropriations Act of the year following

its enactment into law and thereafter.

Section 26. Repeali ng Clause.Any law, presidential decree or issuance, executive order, letter

of instruction, administrative order, rule, or regulation contrary to, or inconsistent with the

provisions of this Act is hereby repealed, modified, or amended accordingly.

Section 27. Separabil ity Clause.If any provision of this Act is held invalid or unconstitutional,

the other provisions not affected thereby shall remain valid and subsisting.

Section 28. Ef fectivity Clause.This Act shall take effect fifteen (15) days following its

complete publication in any newspaper of general circulation or in the Official Gazette.

Approved:February 25, 1998


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8. Lawful Unauthorized Use

Section 148. Use of Indications by Third Parties for Purposes Other than those for which the Mark isUsed.

Registration of the mark shall not confer on the registered owner the right to preclude third parties from using bona fide their

names, addresses, pseudonyms, a geographical name, or exact indications concerning the kind, quality, quantity, destination,value, place of origin, or time of production or of supply, of their goods or services: Provided, That such use is confined to the

purposes of mere identification or information and cannot mislead the public as to the source of the goods or services.

A.Collateral Use

There is no challenge here to the findings as to the misleading character of the merchandisingmethods employed by respondents, nor to the conclusion that they have not only infringed petitioner's

trade mark but have also engaged in unfair competition. The controversy here relates to the adequacy ofthe relief granted, particularly the refusal of the Circuit Court of Appeals to require respondents to remove

the word 'Champion' from the repaired or reconditioned plugs which they resell.

But under the rule of Prestonettes, Inc., v. Coty, supra, that is wholly permissible so long as the manufacturer is not identified with the inferior qualities of the product resulting from wear and tear or thereconditioning by the dealer. Full disclosure gives the manufacturer all the protection to which he is

entitled.

Mr. Justice Holmes stated, 'A trade-mark only gives the right to prohibit the use of it so far as to protect

the owner's good will against the sale of another's product as his. * * * When the mark is used in a waythat does not deceive the public we see no such sanctity in the word as to prevent its being used to tell the

truth. It is not taboo.'62

It is not disputed that Church may specialize in the repair of Volkswagen vehicles. Hemay also advertise

to the effect that he does so, and in such advertising it would be difficult, if not impossible, for him toavoid altogether the use of the word 'Volkswagen' or its abbreviation 'VW, 'which are the normal termswhich, to the public at large, signify appellant's cars.

Although he may advertise to the public that he repairs appellant's cars, Church must not do soin a manner which is likely to suggest to his prospective customers that he is part of Volkswagen'sorganization of franchised dealers and repairmen.

Pertinent Factors:

The size, style and appearance of the advertising articles and displays were among these factors.

Another was the fact that Church did not use Volkswagen's distinctive lettering style or colorscheme, no

rdid he display the encircled 'VW' emblem.63

B. Comparative Advertising

use of anothers trademark to identify the trademark owners product in comparativeadvertising isnot prohibited absent misrepresentation regarding the products or confusion asTo their source or sponsorship


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Champion Spark Plug Co. v. Sanders, 331 U.S. 125 (1947).Volkswagenwerk Aktiengesellschaft v. Church, 411 F.2d 350 (9th Cir. 1969).

The rule rests upon the traditionally accepted premise that the only legally relevant function of atrademark is to impart information as to the source or sponsorship of the product.

C. Parody

literary titles do notviolate [trademark rights] unless the title has no artistic relevance to the underlying work whatsoever, or,if it has some artistic relevance, unless the title explicitly misleads as to the source or content of the

work.

we conclude that MCA's use ofBarbie is not an infringement of Mattel's trademark. Under the first prong of Rogers, the use of Barbie in

the song title clearly is relevant to the underlying work, namely, the song itself. As noted, the song isabout Barbie and the values Aqua claims she represents.

The song title does not explicitly mislead as to the source of the work; it does not, explicitly or otherwise,suggest that it was produced by Mattel.

A title is designed to catch the eye and to promote the value of the underlyingwork. Consumers expect atitle to communicate a message about the book or movie, but they do not expect it to identify the

publisher or producer.

65

For trademark purposes,

"[a] parody is defined as a simple form of entertainment conveyed byjuxtaposing the irreverent representation

of the trademark with the idealized image created bythe marks owner."

"A parody must convey two simultaneous and contradictory messages: that it is the original, but also thatit is not the original and is instead a parody. This second message must not only differentiate the alleged

parody from the original but must also communicate some articulable element of satire, ridicule, joking,

or amusement. Thus, "[a] parody relies upon a difference from the original mark, presumably a humorousdifference, in order to produce its desired effect."

Trademark rights do not entitle the owner to quash an unauthorized use of the mark by another who is communicatingideas or expressing points of view.

The central role which trademarks occupy in public discourse (a role eagerly encouraged by trademark

owners), makes them a natural target of parodists. Trademark parodies, even when offensive, do convey a

message. The message may be simply that business and product images need not always be taken tooseriously; a trademark parody reminds us that we are free to laughat the images and associations linked with the mark.While such a message lacks explicit politicalcontent, that is no reason to afford it less protection under the first amendment. x x x Denying parodists

the opportunity to poke fun at symbols and names which have become woven into the fabric of our dailylife, would constitute a serious curtailment of a protected form of expression.

Smith v. Chanel, Inc., 402 F.2d 562 (9th Cir. 1968).


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Mattel v. MCA, 296 F.3d 894 (2002).

Louis Vuitton v. Haute Diggity Dog, 507 F.3d 252 (4th Cir. 2007).

L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26 (1st Cir.), cert. denied, 483 U.S. 1013 (1987).

a parody depends on lack of confusion to make its point; the parodist relies on the viewer's familiaritywith the distinct and idealized image created by the primary mark's owner as a foil for the parodist's ownirreverent representation of the mark.

D. Trademarks as Speech

In technical trademark jargon, the use of words for descriptive purposes is called a fair use, and the lawusually permits it even if the words themselves also constitute a trademark.

Such nominative use of a mark --where the only word reasonably available to describe a particular thing

is pressed into service--lies outside the strictures of trademark law: Because it does not implicate thesource- identification function that is the purpose of trademark, it does not constitute unfair competition;

such use is fair because it does not imply sponsorship or endorsement by the trademark holder.

Where the defendant uses a trademark to describe the plaintiff's product, rather than its own, a

commercial user is entitled to a nominative fair use defense provided he meets the following three

requirements:

1. the product or service in question must be one not readily identifiable without use of the trademark;2. only so much of the mark or marks may be used as is reasonably necessary to identify the product or

service;3. the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement

by the trademark holder.

Smith v. Wal-Mart, 537 F.Supp.2d 1302 (2008).New Kids on the Block v. News America Publishing, 971 F.2d 302 (9th Cir. 1992).

9. International Aspects of Trademark Law

A. Paris Convention for the Protection of Industrial PropertyB. Nice Agreement on the international classification of goods and servicesC. Trademark Law Treaty

D. The TRIPS Agreement E. The Madrid Agreement Concerning the International Registration of Marks.F. Vienna Agreement G. Lisbon Agreement

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