[Disclaimer: Please note that recently there has been an amendment of the laws and regulations regarding the adoption in Korea. The amended laws will be effective soon. That said, the below article has not yet been updated pursuant to the new laws. Therefore, anyone who plans a private adoption in Korea is highly recommended to contact lawyers in advance with respect to the new laws and regulations. 2012/03/22]
Recently our office took an international adoption case in which U.S. parents living in the states want to adopt Korean kids here in South Korea. That was a private adoption case. After completing the adoption successfully, I wrote a short article on private adoption under Korean law to be published in a foreign magazine. I hope this to be of help to anyone interested in Korean adoption.
[Comments in Korean: 아래 글은 외국인이 한국에 거주하는 한국 아동을 입양하는 것에 관한 글입니다. 주지하다시피 우리나라 법상 입양은 원칙적으로 민법에 의하는 것으로 되어 있고, 예외적으로 시설(고아원 등)에서 보호되고 있는 아동(요보호아동)의 입양에 대하여는 “입양촉진및절차에관한특례법”이 적용되고 있습니다. 아래 글은 이 중 민법에 의한 입양(즉, 사적입양. 특례법에 다른 요보호아동의 입양은 ‘시설입양’이라고 하겠음)에 대한 것입니다. 민법은 양부모의 요건을 “한국인”으로 한정하고 있지 않고, 외국인에게도 동일하게 적용됩니다. 즉, 요보호아동이 아니라면 민법에 의한 해외 입양이 가능하다는 것이지요. 아래 글은 저희 사무소에서 한국인 부모가 사적입양방식으로 아이를 미국으로 입양시킨 사례에 바탕을 두었습니다. 아무쪼록 아래 글이 해외입양을 생각하는 아이 엄마, 아빠들과 입양을 간절히 원하는 외국인 부모들에게 유익한 정보가 되기를 기원해 봅니다(2008년 2월)]
Private Adoption under Korean Law: Overview
There are two kinds of adoptions available under Korean law: an orphanage adoption (or institutional adoption) and a private adoption. The orphanage adoption process is better known to many foreign citizens who want to adopt Korean children. It is literally adopting an orphan accommodated in public assistance facilities or any authorized adoption organization. The Act on Special Cases Concerning the Promotion and Procedures of Adoption (the “ASCCPPA”) regulates the orphanage adoption in Korea. The ASCCPPA, however, requires some strict criteria for being adoptive parents, and this often hinders many foreigners from adopting Korean children. In such a case, the private adoption should seriously be considered. The private adoption is basically adopting non-orphan child in Korea under the Civil Act of Korea. In this article, authors will briefly discuss the private adoption procedure and requirements under the Civil Act of Korea. It should be noted that this article will not discuss with the further U.S. immigration requirements that must be undertaken to obtain relevant visa for the adopted child.
Under the Civil Act, any person can adopt a child by: (a) entering into an adoption agreement with the child and his parents; and (b) reporting the adoption to the relevant public office. If the child to be adopted is under fifteen years of age, his or her parents must assent to the adoption on his or her behalf.
This same requirement applies to any foreigner who wants to adopt a Korean child regardless of his or her nationality and whether he or she is living in Korea. Furthermore, the eligibility requirements under the Civil Act are less strict than those of orphanage adoption. The adoptive person is just required to be over 20 years of age and older than the child to be adopted. Also, single mother or father can adopt a child.
As mentioned above, there are two steps that need to be completed for the private adoption in Korea. One is entering into an adoption agreement with the child and his/her parents; and the other step is reporting the adoption to the Korean local public office.
The adoption agreement must clearly state that the adoption is made voluntarily and with no undue influence or coercion. And it is highly recommended to address the matter of post-contact between the child and biological parents.
After entering adoption agreement, both the child and the adoptive parents must file the adoption report with a competent public local office. In most private adoptions where the adoptive parents are foreigners, the adoption reports are filed with the local Korean office called “Si(Gu)/Eup/Myeon” office located in the adopted child’s permanent domicile location within Korea. It should also be noted that when the adopted child is under 15 years old, the adoption report must be filed by both his legal representative and the adoptive parents, meaning the report can be filed with the Si(Gu)/Eup/Myeon office located in the legal representative’s place of abode or present address.
At this stage, the public office requires certain documents to receive the report. Specifically, the public office will ask foreign adoptive parents to submit some kind of document issued by the government or court of their country that proves their eligibility of adoption under the laws of their country or state of residence. This document is very important and you have to contact your local government in advance. In recent private adoption case involving the adoptive parents who were U.S. citizens residing in Maryland, the adoptive parents submitted a document titled ‘letter of eligibility for international adoption – Korea’ issued by the Department of Health and Human Services located in Maryland, and this document was accepted without any problem by the Korean local public office.
It usually takes 1 or 2 weeks to confirm that the report is duly made and received by the public office. And it takes additional 1 week or so to get a certificate of adoption from the Korean court. By following these steps, the private adoption of Korean child has been completed.
As mentioned above, adoptive parents residing in the U.S. do not need to establish residency in Korea to adopt a Korean child living in Korea. Experienced Korean lawyer can provide prospective adopting parents in the U.S. with full legal services regarding private adoption including drafting and executing adoption agreement with biological parents, filing an adoption report and getting a certificate of adoption on behalf of them. By appointing a Korean lawyer as his/her attorney with regard to the adoption, foreign adoptive parents do not need to come out to Korea or show up at the Korean court to complete the adoption.
If you have any question about adoption in Korea or any other family law related issues, please visit our Legal Consultation center or send your inquiry email directly by clicking here. Our Korean licensed family lawyers, not a U.S. lawyer residing in Korea, will answer your inquiry.
© 2008 Wonil Chung. All rights reserved.