Questions of identity: Foundlings, the legally adopted, and their political rights

A 15-year-old "Junjun" dreams of one day meeting his biological parents. He has a lot of questions to ask them, the most import of which is: "Why was he was left alone and hungry in a makeshift cart when he was a baby?"

But Junjun is now neither alone nor hungry. Some 15 years ago a good-hearted woman, “Alexis”, noticed the infant Junjun alone and abandoned in a cart near her office. "Parang naawa ako sa bata, doon na siya kumakain, doon na siya dumudumi,” Alexis remembered. “Tapos noon, parang nakunsensya naman ako, binihisan ko yung bata, pinaliguan ko, inalagaan ko."

Taking the place of the baby's parents, Alexis took him in, had him baptized, and raised him single-handedly as a surrogate parent.

Junjun now affectionately calls Alexis "papa." Which is fine by her as she thinks of him as her son.

Nevertheless, early on Alexis told Junjun the truth of his past. "Ayaw ko pa naman na kung kailan tumanda doon pa lang niya malalaman,” explained Alexis. “'Pag nawala na ako 'di pa niya malalaman. 'Pag namatay ako siyempre di pa niya malalaman kung saan siya galing. Maganda yung hangga't bata pa lang sinasabi ko na sa kanya."

Everything is fine with the parent and child Alexis and Junjun, except that Junjun has not been legally adopted. Instead, for Junjun to be able to study in school, Alexis had a birth certificate made stating that she was the birth mother. This is called a “simulated birth.”

According to Department of Social Welfare and Development figures, out of 4,482 foundlings like Junjun turned over to the department since 2009, and issued certificates declaring them legally available for adoption, 147 or around 3 percent were children recovered from a simulated birth.

And of the total number of foundlings, 2,582 have either completed or are completing the legal adoption processes.

Though the DSWD has no program actively looking out for simulated births, the agency is quick to discourage prospective parents from doing this, as it may pose legal problems later for both the child and the parent.

"Ang mangyayari niyang talaga, we will retrieve the child [na simulated birth] and place the child under the legal adoption process. Pero the parents, yung nag-simulated birth, 'di natin masisiguro na sila yung magiging adoptive parents," DSWD Spokesman Asec. Javier Jimenez warned.

The DSWD, thus, strongly encourages parents to go through the legal adoption process.

Also, legal adoption preempts any legal problems the adopted child may have later in life, especially foundlings, when it comes questions of citizenship.

"Magiging settled na ang citizenship niya kasi doon sa adoption papers, yung kanyang CDCLAA (Certificate Declaring the Child Legally Available For Adoption) will be transformed into a birth certificate kung saan lalagyan na ng pangalan ng mga magulang na gustong umampon sa bata," Jimenez explained.

No legal basis

However, family lawyer Atty. Krisanto Karlo Nicolas of the Nicolas & De Vega Law Offices clarified that the DSWD's assumption that a legal adoption settles all questions of citizenship, while a "practical assumption" usually practiced by the government, has no legal basis as our laws have yet to clarify the citizenship of adopted foundlings.

According to the 1987 Constitution, there are only two ways of acquiring citizenship: by birth or by naturalization. Neither deals with the possibility of citizenship through adoption.

Furthermore, some laws, such as in Presidential Decree 603 or the Child And Youth Welfare Code, explicitly state that adoption does not transfer citizenship to the adopted person. Article 39 of PD 603 says that the adoption shall “[g]ive to the adopted person the same rights and duties as if he were a legitimate child of the adopter: Provided, That an adopted child cannot acquire Philippine citizenship by virtue of such adoption”.

According to Nicolas, because adoption does not settle questions on a child's citizenship, this may imply legal problems in an adopted person's political rights which are reserved for Filipino citizens, such as the right to vote or to run for public office.

Even being issued a passport or qualifying for scholarships can also be problematic because of this.

However, Nicolas added, the non-political rights of an adopted person, such as employment,  property acquisition, and succession were protected under law, without regard to citizenship, as stated in Article 189 of the Family Code of the Philippines.

Because the government usually assumes that the citizenship of an adopted foundling is the same as that of the adoptive parents, these matters are not usually a problem for most people, Nicolas said.

However, until a law explicitly states that citizenship can be passed on through adoption, he warned that adopted foundlings' citizenship, and the rights dependent on that citizenship, were in a legal limbo.

"Kung may batas tayo na nagsasabi na isang adopted child ay kukunin ang citizenship ng kanyang adopted parents, iyon ang magka-clarify at iyon ang maggagawad ng citizenship niya kasi for all intents and purposes, citizenship by law na iyon," Nicolas explained.

Finding the birth parents

Presently, adopted foundlings have two ways to settle any citizenship questions - they can find their birth parents or they can go through the naturalization process.

The DSWD's Special Operations on Adoption and Social Welfare Attaché Office can help legally adopted foundlings find their birth parents. The process can begin with a letter or email sent to the agency.

However, DSWD-SWATO Officer-In-Charge Rosalie Dagulo admitted that the process was time-consuming. The process could also be halted by birth parents who do not wish to be found.

"Puwede naming i-facilitate iyon kung posible na magkaroon siya ng paraan na makita in person, or pwede namang hindi, depende sa pangangailangan ng bata, adoptive parents at saka biological parents. Pero ang search and reunion na iyon would only be allowed kung nagko-consent ang bawat partido," Dagulo explained.

Meanwhile, though there are many legal reasons for Junjun to look for his birth parents, there really is just one compelling reason, as far as he is concerned. "Para makilala ko rin po sila. Kasi 'di ko po sila nakita, 'di ko man lang po sila nakilala." — DVM, GMA News