Requirement for Full Adoption

[25-2(A) KCCR 610, 2011Hun-Ga42, September 26, 2013]

In this case, the Court held that Article 908-2 Section 1 Clause 1 of the former Civil Act, which prevents full adoption by single persons, by stipulating that, in principle, only couples who have been married for three or more years are entitled to full adoption, does not infringe on the single persons' right to equality and family life and is therefore not in violation of the Constitution.

Background of the Case

1.The complainant is a female doctor and single. When her very close friend Mr. Park O-Sik died in 2005, she actively engaged in the child care of his children Park O-Ni and Yu O-Yeop (Park O-Jin before surname and name change) by, among others, funding living expenses for late Mr. Park's wife Yu O-Dong and children, maintaining a close, family-like relationship. The complainant concluded, after consulting with Yu O-Dong and the children, that it would be best for the sake of their welfare if she raised the children and applied for full adoption of Park O-Ni and Yu O-Yeop But the application was denied on November 13, 2009, on the ground that the complainant was not married.

2. On November 11, 2010, the complainant made an additional attempt to apply for full adoption of Yu O-Yeop and with the application pending, filed for a motion requesting constitutional review, on December 31, 2010, of Article 908-2 Section 1 Clause 1 of the former Civil Act that prevents full adoption by singles, arguing that it violates her rights to equality and pursuit of happiness. The competent court granted the motion and on December 5, 2011, filed a request for the review with the Constitutional Court.

Provision at Issue

The subject matter of review is the constitutionality of Article 908-2

Section 1 Clause 1 of the former Civil Act (amended as Act No. 7427, Mar. 31, 2005 and before being amended as Act No. 11300, Feb. 10, 2012)(hereinafter referred to as the “Provision”) which is as follows:

Former Civil Act (amended by Act No. 7427, Mar. 31, 2005 and before being amended by Act No. 11300, Feb. 10, 2012)

Article 908-2 (Requisites, etc. for Full Adoption)

(1) Any person who intends to make the full adoption of a child shall make a request to the Family Court for such full adoption after meeting the following requirements:

1. The adoption shall be made jointly by the husband and wife who have been married for three years or more: Provided, That where either of the husband and wife who have been married for one year or more makes the full adoption of the spouse's child as his or her one, the same shall not apply;

Court Opinion by Four Justices

1. Whether unmarried people's rights to equality is violated

The Provision limits the eligibility for full adoption only to married persons, with a view to promoting the welfare of adopted children by ensuring that they are adopted into a family capable of providing stable nurturing environment. In single-parent families, unlike married couple ones, the adoptive father or mother alone is responsible for raising children. Allowing a single to be an adoptive parent would end up producing a single-parent family and, therefore, a de facto extramarital child. Accordingly, it is highly likely that single-parent families are disadvantaged in terms of raising adopted children. Furthermore, if an unmarried person is entitled to full adoption, the adopted child will be registered as a child either without a father or mother on the Family Relation Certificate, which may practically obscure the meaning of specifying the fully adopted child as a “biological child.” Meanwhile, the

Act on Special Cases Concerning Adoption states that even unmarried persons can be adoptive parents when certain conditions are met. But this type of adoption differs from full adoption under the Civil Act in terms of scope, requirement, procedure, etc. In this context, there is good reason why the Civil Act, unlike the Act on Special Cases Concerning Adoption, excludes singles from those eligible for full adoption. Therefore, the Provision does not infringe on the singles people's rights to equality.

2.Whether single people's rights to decide and establish a family (hereinafter “the right to family life”) has been violated

The Provision aims to enhance the welfare of adopted children by allowing them to be adopted into families that can afford stable child care environment. As single-parent families are disadvantaged in raising adopted children compared to married couple families, denying singles the right to full adoption is an appropriate means to achieving the aforementioned legislative purpose. Moreover, an adult single can establish a family through general adoption although not through full adoption; the adopted child, in accordance with Article 781 of the Civil Act, can alter his or her surname and origin of surname to succeed that of the adoptive parent with the court's approval; and the Family Relation Certificate alone does not reveal the fact that the child was adopted. Although the adopted child keeps his or her kinship prior to adoption in the case of general adoption, it is possible to create a family environment where the adopted child can feel the sense of belonging and inclusion under the framework of general adoption. The Provision promotes the welfare of adopted children by allowing them to be adopted into stable families based on marital relationship and thereby to grow in a better child care condition. Single people may have their right to family life somewhat restricted as their full adoption is prevented, but since they are still allowed to make general adoption, the limit on private interest is not necessarily bigger than the abovementioned public

interest. In sum, the Provision does not violate the rule against excessive restriction and thus neither infringes on the singles' freedom of family life.

Dissenting Opinion of Five Justices

As much as there may be married persons who are not suitable for full adoption, there may also be single people who are capable of providing a nurturing environment beneficial to adopted children. Marital relationship at the time of full adoption may change later due to divorce, etc. If so, the fact that the adoptive parent was married when the adoption was made is not an absolute guarantee of a child raising environment conducive to the child's welfare. Since the current full adoption system requires court permission for the purpose of enhancing children's welfare, when a single applies for full adoption, the court may take into account a number of circumstances and decide whether to grant the application or not. For this reason, prohibiting full adoption on the sole ground of unmarried status will prevent full adoption by even those who can afford a stable nurturing environment. As social prejudice against single-parent families is one that should be eradicated than promoted, banning full adoption by singles on this ground rather reinforces the social prejudice and is therefore unreasonable. Meanwhile, the Family Relation Certificate and other certificates on the Family Relation Register are merely “tools” to register and certify the generation and alteration of citizens' family relations. This cannot serve as the basis for excluding singles from full adoption. Furthermore, stating only a father or mother on the Family Relation Register is also one way of indicating the biological parent and child relationship. As such, allowing singles to carry out full adoption does not necessarily hinder the register's function of revealing biological relationships. Adoption under the Act on Special Cases Concerning Adoption and full adoption under the Civil Act have common grounds in that both are permitted upon the court's decision based on consideration of the adopting parent's motive,

child care ability, etc. Also both of the Acts put the adopted child's welfare as their top priority. Therefore, the essential difference between the two Acts is not big enough to exclude singles only in the case of full adoption under the Civil Act. This being the case, banning single persons from full adoption solely because the person is unmarried is not considered an appropriate means to guarantee the welfare of adoptive children.

Furthermore, even if a single person is entitled to general adoption, full adoption is likely to generate more solid, stable parent-child relationship. Also, there may be cases where the surname and the origin of surname cannot be altered. In such a case, general adoption on the certificate stipulated in the Family Relation Registration Act, compared to full adoption, is more likely to reveal the fact that the child was adopted. Therefore, for a single adoptive parent who wishes to provide the best nurturing environment where the adopted child can fully mingle with the new family and thus build a relationship resembling that of a biological parent and child, general adoption cannot be a substitute for full adoption.

Denying even eligible single persons the right to full adoption when it is possible to ensure the welfare of adopted children through court admission results in reducing the opportunity for children not enjoying appropriate support and protection to be raised in a better family environment through full adoption, thereby undermining the promotion of adopted children's welfare.

For these reasons, the Provision infringes on the single people's rights to equality and family life.