Understanding International Adoption Laws in Spain
Part I.
General Provisions.
Chapter I.
Scope.
Article 1. Scope.
1. This law regulates the competence of judicial and Spanish consular authorities and the determination of the law applicable to international adoptions, as well as the validity of adoptions in Spain formed by foreign authorities.
2.Adoption means the legal bond of filiation which has a foreign element derived from the nationality or habitual residence of the adoptando or adopter.
Article 2. Scope and Purpose of the Act
1. This law establishes the legal framework and basic tools to ensure that all intercountry adoptions take place in the best interests of the child.
2. The purpose of this Act is to protect the rights of children to be adopted, taking into account the adoption applicants and other persons involved in the process of international adoption.
Article 3. Principles of International Adoption Reporting.
International child adoption respects the principles underlying the Convention on the Rights of the Child of November 20, 1989 and the Hague Convention of May 29, 1993, on the Protection of Child Rights and Cooperation in International Adoption.
To this end, the responsible public entity, to the extent possible, will include standards and safeguards of the Hague Convention of May 29, 1993 and the agreements relating to international adoption to file with the same non-Contracting States.
Article 4. Circumstances Preventing or Conditioning Adoption.
1. Adoption applications from nationals of another country or habitually resident in another State shall not be processed under the following circumstances:
- When the country where the adopted child is habitually resident is in conflict or undergoing a natural disaster.
- If the country does not have a specific authority to monitor and ensure the adoption.
- When the country does not provide adequate guarantees for adopting practices and procedures that respect the interests of the child or do not meet the international ethical and legal principles referred to in Article 3.
2. Spanish public entities for child protection may provide that with respect to a particular State, only requests for international adoption will be processed through supporting organizations accredited or approved by the authorities of both States, where it is noted that another way of processing has obvious risks due to the lack of adequate safeguards.
3. Processing of applications for the adoption of foreign minors who have been accommodated in temporary humanitarian programs due to vacation, study, or medical treatment requires that such placement has been completed in accordance with the conditions for which they were constituted and that their country of origin participates in properly regulated adoption programs.
4. For the decision to be taken by the competent public body in each Autonomous Region in the cases referred to in paragraphs 1 and 2 of this article, self-coordination will be sought, being able to submit this decision to the corresponding prior coordination body of the general government institutional on international adoption and the Adoption Advisory Council.
5. The role of intermediaries in international adoption can only be performed by the public organizations of child protection and partnership entities duly authorized by them and by the appropriate authority of the country of origin of the children. No other person or entity may intervene in the intermediary role for international adoptions.
6. In international adoptions, there can never be financial benefits beyond those that might be required to strictly cover necessary expenses.
Chapter II.
Collaborating Public and International Adoption.
Article 5. Statement of the Public Organizations of Child Protection.
In international adoption, it is the responsibility of the public bodies responsible for child protection to:
- Organize and provide information on legislation, requirements, and procedures required in Spain and in the countries of origin of children, ensuring that such information is as complete, accurate, and updated as possible and freely accessible by stakeholders.
- Provide families with the necessary preliminary training to help them understand and address the implications of international adoption, preparing for the proper exercise of their parental roles once constituted. They may delegate this function to institutions or entities duly authorized.
- Receive applications, in any case, and process them, either directly or through collaborating entities of intercountry adoption properly accredited.
- Expedite, in any case, certificates of fitness, drawing upon either directly or through institutions or entities duly authorized, the study report of applicants for adoption and, when required by the country of origin, the monitoring of the commitment issue.
- Allocate to the child information on their identity, adoptability, social and family medical history, and needs, as well as information relating to the granting of consents by individuals, institutions, and authorities required by the law of the country of origin.
- Give conformity to the adequacy of child characteristics assigned by the competent body of the country of origin with that shown in the study report accompanying the certificate of appropriateness.
- Throughout the process of international adoption, provide technical support aimed at adoptees and adoptive parents, with particular attention to those who have adopted children with special needs or characteristics. During the stay of foreign adopters, they may have to cooperate with the Foreign Service.
- Prepare reports on the monitoring requirements of the child’s home country, which may rely on entities as provided in Article 6 of this Act or other nonprofit organizations.
- Establish qualified resources to support adequate post-adoptive care for adoptees and adoptive families regarding specific issues they may face.
- Accredit, control, inspect, and prepare guidelines for collaborating entities of intercountry adoption performing brokerage functions within their territory.
In its proceedings regarding intercountry adoption, the competent public authorities will promote measures to achieve maximum coordination and collaboration. In particular, they will ensure the standardization of procedures, time, and costs.
Article 6. Intermediation Activity in International Adoption.
1. Intermediation in adoption refers to any activity intended to link or relate adoption applicants with authorities, organizations, and institutions in the country of origin or residence of the child able to be adopted and provide sufficient support for that adoption to be carried out.
2. The functions to be performed by accredited institutions for placement are as follows:
- Information and advice for those interested in international adoption.
- Intervention in processing adoption cases before the competent authorities, both Spanish and foreign.
- Advice and support to the adoption applicants on the procedures that must necessarily be done in Spain and in the countries of origin of children.
- Intervene in the proceedings and make the necessary arrangements to fulfill the obligations established for the adoptive post-adoptive process under the law of the country of origin of the adopted child entrusted to it under the terms set by the public institution of child protection that the Spanish entity is accredited.
3. Collaborating entities of intercountry adoption intervene under the terms and conditions established in this Act and the rules of the Autonomous Communities.
4. Collaborating entities of intercountry adoption will establish cooperation agreements between them to resolve situations occurring or to better achieve their aims.
Article 7. Accreditation, Monitoring, and Control of Collaborating Entities of Intercountry Adoption.
1. Only nonprofit agencies listed in the registry, which have as their purpose the protection of minors, have the means and materials necessary for multidisciplinary teams, and are managed and administered by persons qualified by their ethical standards, training, and experience in the field of international adoption may be accredited as collaborating entities of intercountry adoption.
The competent public authorities will seek the greatest possible consistency in the basic requirements for accreditation.
2. There will be a specific public record of accredited collaborating entities of intercountry adoption.
3. In the event that the foreign country providing for the accreditation of collaborating entities of intercountry adoption sets a limit on their number, appropriate coordination will be established between the competent Spanish public entities to demonstrate the effects concerned.
4. Appropriate coordination of all public entities may establish a maximum number of Spanish collaborating entities of intercountry adoption to be accredited for brokering in a particular country, depending on the needs of international adoption in that country, adoptions, and other matters related to the predictability of international adoption opportunities therein.
5. Public entities may suspend or revoke, by contradictory record, the accreditation granted to those entities accredited as intermediaries that no longer fulfill the conditions for granting or infringe upon their actions by law. This suspension or withdrawal of accreditation may take place in general or just for any particular country.
In the case of suspension and withdrawal of accreditation of an organization cooperating in international adoption by the responsible public entity of an autonomous community, it will provide the most relevant information in the investigation of the proceedings to penalize the other public entities of autonomous communities that are also accredited, meaning they can commence the investigation, if any, considered appropriate.
6. Collaborating entities of intercountry adoption designate the person acting as a representative of the institution and families regarding the authority of the child’s home country. The professionals employed by the collaborating entities of intercountry adoption in the countries of origin of children are considered staff assigned to the entity, which will be responsible for the actions of these professionals in the exercise of their intermediary role. These professionals should be assessed by the competent body for the accreditation of the collaborating institution.
7. It shall be the competent autonomous communities in the matter, accreditation, monitoring, and control of collaborating entities of intercountry adoption acting in their territory, in accordance with applicable regional rules.
8. For monitoring and control of collaborating entities of intercountry adoption, inter-autonomic coordination will be established with respect to those accredited in more than one autonomous community.
Article 8. List of Applicants for Adoption and the Collaborating Entities of Intercountry Adoption.
1. The partner of intercountry adoption and the adoption applicants will formalize a contract referred only to the intermediary functions which it assumes in relation to the processing of the application for adoption.
The basic model contract must be previously approved by the responsible public entity.
2. For exclusive compliance with the responsibilities set out in Article 5.i of this Act, the competent public authorities shall establish a register of complaints made by persons who come to the collaborating entities of intercountry adoption they have qualified.
Article 9. Communication Between Spanish Authorities and Authorities of Other States.
The communication between central authorities and the competent Spanish authorities of other states shall be coordinated in accordance with the provisions of the Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption, done at The Hague on May 29, 1993, and ratified by Spain by Instrument June 30, 1995, if the foreign authorities correspond to states that are part of the Hague Convention or other existing international treaties and conventions on international adoption.
With respect to other states, efforts will be made to follow the same procedure.
Chapter III.
Capabilities and Requirements for International Adoption.
Article 10. Suitability of Adopters.
1. Suitability is defined as the capacity, skills, and motivation required to exercise parental authority, serving the needs of adopted children, and to assume the characteristics, consequences, and responsibilities that come with international adoption.
2. To this end, the affidavit of eligibility requires a psychosocial assessment of the personal, familial, and relational aspects of adopters, and their capacity to form stable and secure links, their educational skills, and ability to care for a child based on their unique circumstances and any other useful element associated with the singularity of international adoption.
The public bodies responsible will ensure the necessary coordination to standardize the criteria for assessing suitability.
3. The affidavit of eligibility and psychosocial reports relating to it will have a maximum validity of three years from the date of issuance by the Spanish competent authority, provided that no substantial modifications occur in the personal and family circumstances of applicants that would affect this statement, subject to the conditions and limitations established, where appropriate, in the autonomous legislation applicable in each case.
4. Public entities responsible for child protection will declare the suitability of the adoptive parents through fitness reports, which are subject to the conditions, requirements, and limitations set out in legislation.
5. In the process of declaring suitability, all discrimination on grounds of disability or other circumstances is prohibited.