368 SUPREME COURT

REPORTS ANNOTATED
The Institution of Adoption Under
the Family Law
ANNOTATION
THE INSTITUTION OF ADOPTION UNDER THE FAMILY LAW
By
DAVID G. NITAFAN*

1. I.Introduction, p. 368
2. II.The Case Under Annotation, p. 369
3. III.Concept of Adoption and its Perspectives, p. 369
4. IV.Purposes of Adoption, p. 370
5. V.Nature of Adoption Proceeding, p. 371
6. VI.Brief History and Early Modes of Adoption, p. 372
7. VII.Adoptions in Other Countries, p. 374
8. VIII.Laws Governing Adoption, p. 374
9. IX.Observation, p. 375

I. Introduction
Law and science not only complement each other but they also have many things in common. Both the
lawyer and scientist ratiocinate; ratiocinate and not merely rationalize because they adhere to the rules of
logic.
Science develops laws and law promotes science. Science simulates artificial situations (e.g., space
and weightlessness) while law creates and recognizes artificial persons and situations (e.g., corporations
and juridical personality of artificial persons). Nutrition, as a science, has developed the vegemeat; law has
endowed fictional persons with personality.
Out of natural law which establishes blood relationship of parent and child, modern law has created
relationship of pater-

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*Judge, Regional Trial Court, NCJR, Manila.

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nity and filiation between persons who are not otherwise related to each other. Among these legal
relationships is the establishment by modern law of the relationship of parent and child between an adopter
and the adopted. Adoption is a legal institution in the modern family law.
Adoption as such family institution may be traced to biblical times. Jesus was not the natural son of
Joseph, yet the latter had to consider Him a son because of God's law.
II. The Case Under Annotation
The subject of adoption as an institution in the family law, is involved in Republic v. Court of Appeals, et
al.1 a recent adjudication of the Second Division of the Supreme Court. The legal question involved therein
arose in view of a change under the law of adoption by the recently promulgated Family Code by executive
fiat.2
It is the purpose of these annotations to present a bird's-eye view of the basic postulates underlying,
and the origin of the process of, adoption as an institution in the family law, leaving the more detailed
ramifications of the subject to separate future annotations.
 III. Concept of Adoption and its Perspectives
Adoption is a fiction created by law to give (establish) a relation of people where none previously
existed.3Adoption is a juridical act, a proceeding in rem, which creates between two persons a relationship
similar to that which results of legitimate paternity and filiation. 4Adoption, in modern trends, is deemed not
merely an act to establish the relation of paternity and filiation but one which gives the child a legitimate
status. It is in this sense that adoption is now defined as a "juridical act

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1 G.R. No. 92326, 24 January 1992Regalado, J.

2 Exec. Order No. 209, July 6, 1987, which took effect on 3 August 1988.
3 See McGee v. Republic, 94 Phil. 820; Del Rosario v. Del Pilar, CA-G.R. No. 53547-R, March 29,1949.
4 Lazatin v. Campos, Jr., 92 SCRA 250.

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which creates between two persons a relationship similar to that which results from legitimate paternity and
filiation."5
Since adoption establishes the relationship of paternity and filiation it must as a consequence involve
two perspectivesfrom that of the adopting parent and from that of the adopted child.
First of all, it is relevant to understand the terms "paternity and filiation". As used in the family law the
relationship of paternity and filiation is that which exists between parents and their children. This tie or
relationship may arise only either from nature, when a child is born, or by legal fiction, as when a child is
legally adopted.6 "Paternity" is the state or condition of being a father, whereas, "filiation" is the descent of
son or daughter, with regard to his or her father, mother, and their ancestors. Under the family law,
"paternity" generally includes "maternity" which is the status of being a mother.
IV. Purposes of Adoption
For the reason that the purposes of adoption is to establish a relationship of paternity and filiation, 7 the
institution of adoption under our law has a dual purpose. The first is in respect to the child, and the second,
insofar as it affects the adopting parent. Thus, it was said that adoption statutes have both humane and
salutary purposes, and are designed to provide homes, parental care and education for unfortunate, needy
or orphaned children and give them the protection of society and family in the person of the adopter, and
at the same time allow childless couples or persons to experience the joys of parenthood and give them
legally a child in the person of the adopted for the manifestation of their natural parental instincts.8
Specially as affecting the child, the philosophy behind adoption statutes is the promotion of the welfare
of the child.9 Accordingly, the modern trend is to encourage adoption and every

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5 Prasnik v. Republic, 98 Phil. 665, quoting from Valverde, Vol. 4, p. 473.

6 Noe v. Velasco (CA), 61 O.G. 410.
7 McGee v. Republic, supra.
8 Malkinson v. Agrava, 54 SCRA 66.
9 Santos v. Aranzanso, 16 SCRA 344.

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reasonable intendments should be sustained to promote that objective. 10Adoption is now geared more
towards the promotion of the welfare of the child and enhancement of his opportunities for a useful and
happy life.11 It is not bureaucratic technicalities but the interest of the child that should be the principal
criterion in adoption cases.12In sum, the interest and welfare of the child to be adopted should be the
paramount consideration.13
On the other hand, it had also been said that the purpose of adoption is to afford to persons who have
no child of their own the consolation of having one by creating, through legal fiction, the relationship of
paternity and filiation where none exists by blood relationship.14
V. Nature of Adoption Proceeding
Adoption as a juridical act is a proceeding in rem.15Consequently, no court may entertain a petition for
adoption unless it has jurisdiction, not only over the subject matter of the case and over the parties, but
also, over the resi.e., the personal status of both the person to be adopted and person adopting. 16
On the other hand, adoption under our law is strictly a judicial proceeding in rem.17 Consequently, the
so-called testamentary and extrajudicial adoptions, practiced in some countries, are not recognized in this
jurisdiction.
Proceedings in rem are court actions where the whole world is a party, whether within or without the
territorial jurisdiction of the forum, such that the decree made is binding on all persons,

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10 Santos v. Aranzanso, supra;Cathey v. Republic, 18 SCRA 86,

11 Daoang v. Municipal Judge of San Nicolas, Ilocos Norte, 159 SCRA 369.
12 De Tavera v. Cacdac, Jr., 167 SCRA 636.
13 Santos, Jr. v. Republic, 21 SCRA 379.
14 Santos-Inigo, et al. v. Republic, 95 Phil. 244, 50 O.G. 3030; see also Malkinson v. Agrava, supra.
15 Ellis v. Republic, 7 SCRA 962; Santos v. Aranzanso, supra; see also Lazatin v. Campos, Jr., supra.
16 Ellis v. Republic, supra.
17 Lazatin v. Campos, Jr., supra.

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whether personally notified or merely through constructive notice.
VI. Brief History and Early Modes of Adoption
As initially intimated, adoption may be traced from biblical times. Adoption was practiced in the remotest
antiquity. Cicero asks, "Quod est jus adoptionis? nempe ut is adoptet, qui neque procreare jam liberos
possit, et cum potucrit, sit expertus." At Athens, he who had adopted a son was not at liberty to marry
without the permission of the magistrates. Gaius, Ulpian, and the Institutes of Justinian only treat of adoption
as an act creating the paternal power. Originally, the object of adoption was to introduce a person into the
family and to acquire the paternal power over him. The adopted took the name of the adopter, and only
preserved his own adjectively, as Scipio Aemilianus; Caesar Octavianus, etc. According to Cicero,
adoptions produced the right of succeeding to the name, the property, and the lares: "hereditates nominis,
pecunice, sacrorum secutae sunt;" Pro Dom. sec. 13.
The first mode of adoption was in the form of a law passed by the comitia curiata. Afterwards, it was
effected by the mancipatio, alienatio per aes et libram,and the injure cessio; by means of the first the
paternal authority of the father was dissolved, and by the second the adoption was completed.
The mancipatiowas a solemn sale made to the emptor in presence of five Roman citizens (who represented
the five classes of the Roman people), and a librepens, or scalesman, to weigh the piece of copper which
represented the price. By this sale the person sold became subject to the mancipium of the purchaser, who
then emancipated him; whereupon he fell again under the paternal power; and in order to exhaust it entirely
it was necessary to repeat the mancipatio three times; si pater filium ter venumdabit, filius a patre liber
esto. After the paternal power was thus dissolved, the party who desired to adopt the son instituted a
fictitious suit against the purchaser who held him in mancipum, alleging that the person belonged to him or
was subject to his paternal power; the defendant not denying the fact, the praetor rendered a decree
accordingly, which constituted the cessio injure,and completed the adoption. Adoptantur autem,
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cum a parente in cujus potestate sunt, tertia mancipatione in jure ceduntur, atque ab eo, qui adoptat, apud
eum apud quem legis actio est, vindicantur; Gell. 5. 19.
Towards the end of the (French) Republic another mode of adoption had been introduced by custom.
This was by a declaration made by a testator, in his will, that he considered the person whom he wished to
adopt as his son: In this manner Julius Caesar adopted Octavius.
It is said that the adoption of which we have been speaking was limited to persons alieni juris. But there
was another species of adoption, called adrogation, which applied exclusively to persons who were sui
juris.By the adrogation a pater-familias, with all who were subject to his patria potestas,as well as his whole
estate, entered into another family, and became subject to the paternal authority of the chief of that
family. Quce species adoptionis dicitur adrogatio, quia et is qui adoptat rogatur, id est interrogatur, an velit
eum quem adopturus sit fustum sibi filium esse; et is, qui adoptatus regatur an id fiere patiatur; el populus
regatur an id fieri jubeat; Gaius, 1. 99. The formulae of these interrogations are in Aul. Gell. (see Hunter,
Rom. Law 205); "Velitis, jubeatis, Quirites, uti L. Valerius L. Titio tam jure legeque filius sibi siet, quam si
ex eo potre matreque familias ejus natus esset, utique ei vitae necisque in eo potestas siet uti pariendo filio
est; hoc ita ut dixi vos, Quirites, rogo." This public and solemn form of adoption remained unchanged, with
regard to adrogation, until the time of Justinian; up to that period it could only take place populi
auctoritate. According to the Institutes, 1. 11. 1. adrogation took place by virtue of a rescript of the
emperor,principali rescripto, which only issued causa cognita; and the ordinary adoption took place in
pursuance of the authorization of the magistrate,imperio magistratus. The effect of the adoption was also
modified in such a manner, that if a son was adopted by a stranger, estrania persona,he preserved all the
family rights resulting from his birth, and at the same time acquired all the family rights produced by the
adoption. (see 1 Bouvier's Law Dictionary, pp. 146-147.)
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The Institution of Adoption Under
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VII. Adoptions in Other Countries
There is no law of adoption in Scotland; Bell's Dict.; nor in England. In the latter country any renunciation
by parents of their legal rights and liabilities is a mere empty form; 2 K.B. [1901] 385; 3 M. & G. 547.
In the United States, adoption exists only by statute.18 One of the first states to introduce it was
Massachusetts in 1851.19 Its object is to change the succession of property and to create relations of
paternity and filiation not before existing.20 In Louisiana it was abolished by the Code of 1808, art. 35, p.
50,21 but the right had since been restored.22 It was said lately that adoption exists in every state of the
Union.23
In many of the continental states of Europe, it is still permitted under various restrictions.
VIII. Laws Governing Adoption
The earliest law which governed adoptions in this jurisdiction was the Civil Code of Spain of 1889, Articles
173 to 180 thereof. When Act No. 190 was enacted by the then Philippine Commission on 28 February
1914 and which took effect on 1 July 1914, it contained a complete legislation on adoption and custody of
minors.24According to the Supreme Court, this latter enactment repealed the provisions of the old Civil
Code.25 Upon the adoption of the 1935 Constitution, Act 190 was among the

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18 In re Thorne, 155 N.Y. 140,49 N.E. 661; Ballard v. Ward, 89 Pa. 358.
19 Ross v. Ross, 129 Mass. 243, 37 Am. Rep. 321.
20 Morrison v. Session's Estate, 70 Mich. 297,38 N.W. 249,14 Am. St. Rep. 500.
 21 See Vidal v. Commagere, 13 La. Ann. 517.
22 Civil Code 1879, Art. 214.
23 Clarkson v. Hatton, 143 Mo. 47, 44 S.W. 761, 39 L.R.A. 748, 63 Am. St. Rep. 635.
24 Chapter XLI, consisting of Secs. 765 to 772.
25 In re: Adoption of Guzman, 73 Phil. 51, 40 O.G. 2083; Joaquin v. Navarro, 81 Phil. 373, 46 O.G. No.

Supp. 155.
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enactment repealed as statute and declared as Rules of Court. 26 The 1940 Rules of Court contained a
complete rule on Adoption and Custody of Minors,27which contained changes to those contained in Act
190. Whether these changes had the effect of modifying the provisions of Act 190, or that the provisions of
the latter act were continued in force, is a matter that had not as yet passed upon, but it is submitted that
the Rules of Court could not have modified the substantive provisions of Act 190 because such was one of
the limitations on the rule-making power of the Supreme Court.
When the Civil Code of the Philippines was instituted, it contained a chapter on adoption, consisting of
Articles 334 to 348 thereof. When Presidential Decree No. 603, otherwise known as the Child and Youth
Welfare Code, was promulgated, the Civil Code provisions on adoption were expressly repealed and
articles 27 to 42 of said decree took their place. When the Family Code (Ex. O. No. 209) was promulgated,
it also contained provisions generally based on but modified some of the provisions of Pres. Decree No.
603.
IX. Observation
The law on adoption is a part of our family which had undergone frequent changes and thus the
jurisprudence thereunder had not been stabilized. It is hoped that our lawmakers could stabilize the law so
that the citizens will not be guessing as to what will take place next. Frequent changes in laws, specially
those involving family relations, is not conducive to better social order and the cause of good government.

o0o

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26Sec. 13, Art. VIII, 1935 Const.

27Rule 100,1940 Rules of Court.
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