Child Adoption With Foreign Element

The law of Vietnam has recognized the right to adopt and the right to be adopted as one of the human rights and citizens’ rights that are respected and guaranteed by the Constitution and the law. The purpose of adoption is for children to have a real family, be loved and cared and live in love, grow up under the education and orientation of parents. In addition, it also creates conditions so that some people who are unfortunate because of their health and circumstances can still be true fathers and mothers. Not only domestic adoption, nowadays, intercountry adoption has also become very popular. What is the difference between the intercountry adoption and the domestic adoption? Let’s find out together!

What is adoption?

An adopted child is a person who is looked after, cared, raised and educated by adoptive parents according to the provisions of law. According to Clause 1, Article 3 of the Law on Adoption 2010 (Law on Adoption), adoption is defined with specific contents as follows: “Adoption means the establishment of parent and child relationships between the adopting and adopted persons.”

Adoption is formed and has specific regulations for the purpose of establishing a long-term, sustainable relationship between parents and children, in the best interests of the subjects being the adopted children, ensure that the adopted children are nurtured, cared and educated in the new family environment.

From the time the parties register the adoption, when the parties have become the adoptive parents and adopted child, the parties will have all the rights and obligations of the parents and child in accordance with current law.

Currently, the current status of child adoption includes: domestic adoption and intercountry adoption. Although adoption is very popular, adoption registration is still limited and rarely done. Most adoption issues are emotional. When adopting a child, the parties might not understood all the rights and obligations, of either adopted and adopting persons.

What is intercountry adoption?

Intercountry adoption means the adoption between a Vietnamese citizen and a foreigner, between foreigners permanently residing in Vietnam, and between Vietnamese citizens either of whom settles abroad.

According to the provisions of Article 4 of the Law on Adoption, when settling adoptions, the right of children to live in the family of origin must be respected. Adoption must ensure the legitimate rights and interests of adopted and adopting persons, free consent, equality, non-discrimination between male and female and non-violation of law and social ethics. Adoption by a person living abroad is allowed only when no domestic substitute family can be found.

According to the provisions of Article 28 of the Law on Adoption, cases of intercountry adoption include:

• Overseas Vietnamese, foreigners permanently residing in the countries being contracting parties to an adoption treaty along with Vietnam adopt a Vietnamese child.
• Overseas Vietnamese, foreigners permanently residing abroad may adopt a specific child in the following cases:

• • He/she is the stepfather or step mother of the to-be-adopted child;
  • He/she is the natural aunt or uncle of the to-be-adopted child;
  • He/she has adopted a child who is a sibling of the to-be-adopted child;
  • He/she adopts a child who is disabled or infected with HIV/AIDS or another dangerous disease;
  • He/she is a foreigner currently working or studying in Vietnam for at least 1 year;

• Vietnamese citizens permanently residing in the country adopt a foreign child.
• Foreigners permanently residing in Vietnam adopt a child in Vietnam.

What is intercountry adoption for a specific child and a non-specific child?

Adoption for a specific child is understood as the establishment of a parent and child relationship with a pre-designated adopted person, i.e. clearly designated who the adopted person is.

Clause 2, Article 28 of the Law on Adoption specifies that intercountry adoption for a specific child must meet the conditions of the adopting person and adopted person.

Overseas Vietnamese, foreigners permanently residing abroad who adopts for a specific child must be the following subjects: the stepfather, the stepmother, the natural aunt, uncle of the to-be-adopted child; or the person has adopted a child who is a sibling of the to-be-adopted child; or a foreigner currently working or studying in Vietnam for at least 1 year.

Person who is specifically adopted is a child who is disabled or infected with HIV/AIDS or another dangerous disease based on Article 3 of Decree 19/2011/ND-CP.

Intercountry adoption for a non-specific child is understood as the establishment of a parent and child relationship that is not included in the cases of intercountry adoption for a specific child as above.

Conditions on intercountry adoption

Conditions for the adopting person

According to Clause 1, Article 29 of the Law on Adoption stipulates the conditions for adopting person: “Overseas Vietnamese or foreigners permanently residing abroad who seek to adopt a Vietnamese must meet all conditions required by the law of the country in which they permanently reside and specified in Article 14 of this Law”. Specifically:

• Having full civil act capacity.
• Being 20 years or more older than the adopted person;
• Having health, financial and accommodation conditions for assuring the care for and nurture and education of the adopted person.
• Having good ethical qualities.

The following persons may not adopt a child:

• Being restricted from parental rights over a minor child.
• Currently serving an administrative handling decision at an educational institution or medical treatment establishment.
• Currently serving an imprisonment penalty.
• Having a criminal record of commission of any of the crimes: intentionally infringing upon another’s life, health, dignity and honor; maltreating or persecuting one’s grandparents, parents, spouse, children, grandchildren or caretaker; enticing or compelling a minor to violate the law or harboring a minor violator; trafficking in fraudulently swapping or appropriating children, which has not been remitted yet.

In case the stepfather adopts the stepchild of his wife, the stepmother adopts the stepchild of the husband, or the aunt, uncle adopts the child, it is not necessary to be 20 years older than the adopted person and no need to meet the conditions of health, financial and accommodation conditions for assuring the care for and nurture and education of the adopted child.

Vietnamese citizens adopting foreigners must fully meet the conditions prescribed in Article 14 of the Law on Adoption and the law of the country where the adopted person permanently resides.

Conditions for the adopted person

Article 8 of the Law on Adoption stipulates that the adopted person are as follows:

• Children under 16 years
• Persons aged between full 16 years and under 18 years falling into either of the following cases:

• • To be adopted by the stepfather or stepmother;
  • To be adopted by a natural aunt or uncle.

• A person may be adopted by only one single person or two persons being husband and wife.

Competence to handle intercountry adoption

The authority to register an intercountry adoption as provided for in Article 9 of the Law on Adoption is:

• People’s Committees of provinces or centrally run cities in which the persons introduced for adoption permanently reside are competent to decide on intercountry adoptions.
• The provincial-level Justice Departments are competent to register intercountry adoptions.
• Overseas representative missions of the Socialist Republic of Vietnam are competent to register adoptions by Vietnamese citizens temporarily residing abroad.

We briefly outline the issue of adoption with foreign elements as above so that you can understand and have a overall picture. If you want to learn more about this issue, please contact us for more detailed instructions: letran@familylawyers.vn .