Research On Adoption In Cambodia

This dissertation studies ‘Adoption in Cambodia'.It contributes to the efforts of the Royal Government of Cambodia to protect and promote the rights of children,including adopted children,as set forth in the Rectangular Strategy Phase IV of the Sixth Legislature and the Alternative Care Policy 2006 of the Royal Government of Cambodia.This dissertation is divided into six chapters,focusing on the national legal provisions governing adoption,particularly the 2007 Civil Code of the Kingdom of Cambodia and the2009 Inter-Country Adoption law,and current practice related to adoption in Cambodia including providing some case studies to make this research clear and comprehensive.The six Chapters of this dissertation encompass:Chapter 1: General ObjectiveIn this Chapter,the research highlights definition of adoption,a brief history of adoption in Cambodia,political change and country profile in Cambodia and development of the adoption laws.Adoption is considered a complex social phenomenon because it is closely interwoven into the family and lead to changes in family life and the local social context of family members,who may be moved from one family to another or from one country to another.Based on Cambodia's history,Cambodia underwent a number of political changes,including civil war,between when the colonial era began in 1863 and the first democratic election in 1993.The changes have affected almost all aspects of Cambodian society,and have included changes to and evolution of the regulations concerning adoption in the country.As noted,the first regulations related to adoption in Cambodia were legal provisions stipulated in the 1967 Civil Code,when Cambodia became independent from French colonization.After that,when Cambodia was led by the government of the People's Republic of Kampuchea,Cambodia had the Marriage and Family Law(1989).Under the Marriage and Family Law,the competent institution to decide on adoption was the commune/sangkat committee.In 1999,when Cambodia became the Kingdom of Cambodia,through the firstdemocratic election in 1993,the country started preparing a new Civil Code.This Code was adopted in 2007.Chapter 2: Types of Domestic Adoption in CambodiaIn this Chapter,the research illustrates adopting children within Cambodia which includes: full adoption and simple adoption,significantly focusing on conditions for adoptive parents,conditions for the adopted child,consent to adoption,court procedure,effects of adoption and registration of adoption which have been provided by the 2007 Civil Code of the Kingdom of Cambodia.This Code is currently being implemented.Based on legal provisions in this new Code,there are legal provisions that stipulate concerning domestic adoption.This adoption is divided into 2(two)types: full adoption and simple adoption.Full adoption: leads to termination of the relationship between the adopted child and natural parents.However,it brings the rise of the relationship between the adopted child and adoptive parents.For full adoption,the adopted child must be a child below the age of 8 years.Simple adoption: it does not terminate the relationship between the adopted child and natural parents.At the same time,it creates a relationship between the adopted child and adoptive parents.For simple adoption,the adopted child can be a minor or an adult as long as the child is less age than adoptive parents.The reasons for the Civil Code dividing adoption into 2(two)types are because to aim at providing every child to be grown up in family environment which is the best choice for child development and child welfare.It also aims at allowing all misfortune children to live in a family,instead of living in an orphanage.At the same time,this Code also aims at providing choices to adoptive parents to make a decision on adopting a child by means of full adoption or simple adoption.This reflects the aim of the law with respect for principle of intention of the individual.Moreover,based on the legal provisions in this new Code,the court is entitled to decide on adoption.Chapter 3: Rights and Duties of Adopted Child and Adoptive Parents in Domestic AdoptionIn this Chapter,the research illustrates rights and duties of adoptive parents,suspension and divestment of authority of parental power holders and rights of the adopted child.When legal relationship is determined following the law as a result of simple adoption and full adoption,rights and duties between the adopted child and the adoptive parents are also established.Therefore,to ensure and protect the legal rights and benefits of Cambodian people and to update the law,there have been reforms to many previous legal provisions,and many new concepts have been integrated into the 2007 Civil Code of the Kingdom of Cambodia in which it includes legal provisions concerning the rights and duties of adopted child and adoptive parents with regard to such domestic adoption.Also,the 1993 Constitution,which is the supreme law of the Kingdom of Cambodia,provides for the recognition of rights and duties regardless of race,belief,religion and political tendency.Based on the contents of the Constitution,all national laws shall be applicable according to the Constitution and cannot contradict the Constitution.Related to the rights and duties of adoptive parents for domestic adoption,this research focuses on the rights and duties to educate the child,the rights and duties in property management and representing the child and the rights to inherence from the adopted child.In general,education can be divided into family-based education,such as ‘disciplines',which parental power holders(adoptive parents)can apply to a child in the house,and social education,which refers to basic education to be delivered at school.In addition to rights and duties to educate the child,the adoptive parents also have the rights and duties to manage the property of the child and represent the child in any act related to the property of the child in case the adopted child is a minor.Usually,an adopted child who is a minor does not own a great deal of property.However,there may be some minors who have received property through inheritance,donation or insurance,etc.At the same time,adoptive parents also have the rights to inherence from the adopted child.This is because,after the legal relationship is determined,the adoptive parents shall hold parental power over the adopted child and have the same rights and duties as natural parents have towards their natural child.Related to the rights of the adopted child for domestic adoption,the research focuses on the rights to succession of the adopted child from adoptive parents and the rights of the adopted child to be protected from abuse.In this regard,the adopted child has the same rights as a natural child.Chapter 4: Conditions,Court Procedure and Effect of Inter-country AdoptionIn this Chapter,this research indicates conditions for adoptive parents,conditions for the adopted child,consent to adoption,procedure for adoption,fees for adoption and effects of inter-country adoption.In terms of changes in social context in the world,cooperation between countries has become closer.The economy of Cambodia has opened itself up to globalization,which has led to inflows of humanitarian aid and organizations and foreigners and investors coming to Cambodia for work and business.In this climate,the number of requests to adopt Cambodian children by foreigners is on the rise.With high responsibility to protect the rights of children,the Royal Government of Cambodia has also paid attention to and reviewed the legal provisions concerning inter-country adoption and reformed the law by preparing a new law on Inter-Country Adoption in accordance with the Hague Convention on Protection of Children and Co-operation in Respect of Inter-Country Adoption,the Convention on the Rights of the Child which Cambodia became a state party in 1992 and the 1993 Constitution of the Kingdom of Cambodia.The law on Inter-country Adoption was adopted in 2009.Based on the content of this law,inter-country adoption shall be the last resort for the best interest of the children and when placing children within their birth family and domestic adoption are not possible.This reflects that domestic adoption is the primary choice for safeguarding a child within a family.Chapter 5: Relationship between Inter-country Adoption and Domestic AdoptionIn this Chapter,the research focuses on the relationship between legal provisions governing domestic adoption and inter-country adoption and motivation in developing legal provisions on adoption in Cambodia.Despite legal reforms put in place with the new legal provisions of the 2007 Civil Code and the 2009 Inter-Country Adoption law,some issues remain in practice for domestic adoption and inter-country adoption.These issues usually relate to legal implementation by legal enforcement officers,gaps in the legal provisions and the absence of some related legal provisions,particularly the issues related to the relationship between domestic adoption and inter-country adoption.In particular,the legal provisions concerning adoption in Cambodia,there are separated laws between domestic adoption and inter-country adoption.In domestic adoption,provisions are contained within the 2007 Civil Code of the Kingdom of Cambodia,which is a fundamental law(general law).For inter-country adoption,the provisions governing this issue in Cambodia are stipulated in the 2009 ICA Law of the Kingdom of Cambodia,which is the legal provisions of special law.Therefore,following the legislative architecture the legal provisions of these two laws(fundamental law and special law)must be interconnected,consistent and corresponding including the relationship of the contents of substantive provisions and the contents of procedural provisions.In contrast,if the contents of substantive provisions and the contents of procedural provisions of the special law contain legal provisions that are not consistent with the legal provisions of fundamental law,many issues may arise during the practice.The issues shall be addressed immediately to protect children who are human resources for country development in the future.Chapter 6: New Trends in Adoption Issue in CambodiaIn this Chapter,the research highlights: challenges faced by children born through surrogacy and children adopted by same-sex couples and universal trends.In current context,medical advances,the development of reproductive technology and the occurrence of medical tourism,which are emerging in all countries around the globe,as well as wider recognition of the rights of lesbian,gay,bisexual and transgender people in some countries,have made possible legal relationship between parent(s)and child through surrogacy births and adoption by same-sex couples.In this regard,some issues may arise that risk negatively affecting children,such as: statelessness of children;child trafficking;child exploitation and other forms of child abuse against surrogate-born children;and social discrimination against surrogate-born children and children adopted by same-sex couples;as well as negative impacts on the rights of these children.These issues have become a common concern of the globe.Currently,experts from some countries have gathered to prepare a common principle following international standards to govern surrogacy which is necessary and important affairs to govern the practice of surrogacy and make it consistent in all countries.In particular,to ensure and protect the rights of children and women.Similarly,the topic ‘Adoption by same-sex couples' is a topic in consideration and discussion of each country in case the law of any country allows legal marriage for same-sex couples.In this regard,the issue arises regarding a question whether adoption by same-sex couples shall be permitted or not?All the six Chapters,which have been illustrated through research in the topic‘Adoption in Cambodia',are significant in which each Chapter is related.So,any Chapter cannot be missed to research this topic.In conclusion,to contribute to the efforts of the Royal Government of Cambodia to achieve the goal of protecting the rights and best interests of children as well as its endeavors to achieve the Sustainable Development Goals,I have chosen the topic of ‘Adoption in Cambodia' for my research.This topic is also very relevant to my current job working for the Ministry of Justice of Cambodia,where I lead and participate in drafting laws and promotinggender issues and child protection in Cambodia.Furthermore,even though there have been a number of studies on this topic in the past,these neither highlight and analyze the contents of the relevant laws comprehensively nor provide explanations on the gaps in legal provisions governing adoption,including clear and specific recommendations to follow in order to respond to the lack of any legal provisions related to adoption.In particular,most researchers focus on only one part of adoption,without covering all the aspects and content of all legal provisions concerning adoption in Cambodia.This could lead to a lack of comprehensive and effective solutions to the problems related to adoption in Cambodia.