Text of Dutch bill and explanatory memorandum on adoption by persons of the same sex introduced in Parliament on 8 July 1999 printed as parliamentary paper nr. 26673

Summary-translation by Kees Waaldijk LL.M. Universiteit Leiden, The Netherlands, waaldijk@euronet.nl

Draft-version 28 July 1999

All explanations and comments between square brackets have been added by me. Square brackets are also used to indicate omitted or summarised passages.

For further background information on the lengthy process leading up to this bill, and for future updates on its passage through parliament and possible amendments to it, see: www.coc.nl/index.html?file=marriage .

This is an unofficial translation and I am not a professional translator. Please inform me when putting this text on any internet-site. Please consult me before publishing it on paper. All copyrights are mine (W).

Parliamentary paper 26673

Amendment of Book 1 of the Civil Code (adoption by persons of the same sex)

NR. 2: LEGISLATIVE PROPOSAL

We Beatrix [...]; [preamble:]

considering that it is desirable to amend the rules on adoption and related provisions in Book 1 of the Civil Code as regards the introduction of the possibility of adoption by persons of the same sex;

Article I

Book 1 of the Civil Code shall be amended as follows:

A, B and C [consequential amendments to articles 5, 204 and 207]

D Article 227 shall be amended as follows:

a. The first paragraph shall read as follows:

1. Adoption is effected by a decision of the district court at the joint request of two persons or at the request of one person alone.

[i.e. the words 'of different sex' after 'two persons' are deleted]

b. A second sentence shall be added to the second paragraph

['2. The joint request by two persons can only be done, if they have been living together during at least three continuous years immediately before the submission of the request.']

reading as follows:

The request by an adopter who is the spouse or life partner of the parent, can only be done, if he has been living together with that parent during at least three continuous years immediately before the submission of the request.

c. The third paragraph shall read as follows:

3. The request can only be granted, if the adoption is in the evident interest of the child, if it is also certain that the child has nothing to expect anymore from its parent or parents, and if the conditions specified in article 228 are fulfilled as well.

[i.e. the words 'it is certain that the child has nothing to expect anymore from its parent of parents' are inserted]

E Article 228, first paragraph, shall be amended as follows:

a. Sub-paragraph (f) shall read as follows:

f. [the condition] that for at least three continuous years the adopter has been caring for the child and bringing it up, or, in the case of joint adoption by two persons, that for at least one year they have been caring for the child and bringing it up; if the spouse or life partner of the parent of the child is adopting, the condition is that the adopter and that parent have been caring for the child and bringing it up for at least one year;

b. [consequential amendments in sub-paragraph (g)]

F, G and H [consequential amendments in article 229, 253b and 327]

Article II

[transitional provision]

Article III

This Act shall enter into force on a date to be determined by royal decree.

Amendment of Book 1 of the Civil Code (adoption by persons of the same sex)

NR. 3: EXPLANATORY MEMORANDUM

[The explanatory memorandum is signed by Mr. Job Cohen, State-Secretary for Justice. It is a lengthy text. Therefore I have only translated some brief passages.]

General

1. Introduction

[...] A child being cared for and brought up in a lasting relationship of two women or two men, has a right to protection in that relationship, including legal protection. Both women or both men have taken on the responsibility for the care and upbringing of the child and readily want to have that responsibility. In the interest of the child this relationship with these adults deserves protection.

In stead of through changing the law of descent, such protection shall be offered in the form of the adoption possibilities provided for in this bill, in accordance with the advice of the Kortmann-Committee [advising the government about the opening up of marriage and adoption in 1997], as well as in the forms of joint authority for a parent and his partner and of joint custody (both introduced by legislation taking effect on 1 January 1998). An important difference between descent and adoption is that adoption always is an abstraction from descent. [...] Because parenting by two persons of the same sex always involves a form of non-biological parenting, we have opted for a change of the law of adoption and not of the law of descent. [...]

2. Scope of the legislative proposal

The bill relates to adoption of children in the Netherlands. The last years not more than 60 to 100 Dutch children have been adopted under the Dutch law of adoption [not counting stepparent adoptions], for in the Netherlands only rarely a mother does not bring up her own child.

The bill primarily aims to make adoption by persons of the same sex possible. Probably this will mostly take the form of adoption by the female partner of the mother of the child, or of adoption by the male partner of the father of a child. This form is similar to the existing form of stepparent adoptions.

The reason why we do not propose to extend the possibilities for intercountry adoption, is that in that context other facts need to be taken into account. In 1997 the Ministry of Justice studied the legislation on intercountry adoption, and its application in practice, in six countries from where children come to the Netherlands, and in six other countries where such children are adopted. The study showed that in practice there is a strong preference for intercountry adoption by a married couple. [...]

3. The new condition for adoption

It is being proposed that adoption - apart from the already existing conditions - will only be possible if the child has nothing to expect anymore from its original parent of parents. This criterion is being proposed irrespective of whether it is adoption by persons of the same sex or adoption by persons of different sexes. [...]

The words 'parent or parents' refer to legal parents as well as to biological parents. [...]

The criterion that the child has nothing to expect anymore from its original parent of parents, relates to the parent-child relationship. Therefore the question is not whether the child has not or will not have any de facto contact with its original parents. The relevant issue is whether the child can expect that its parents are capable of giving substance to their parenthood. Only if it is certain that the child has nothing to expect from its original parents as parents, the new condition for adoption will be fulfilled. [...]

There will be cases in which this question can easily be answered, as in the case of duo-mothers where a child has been conceived through artificial insemination with semen of an anonymous donor. Since the ties with the legal mother, who has given birth to the child, will not be severed by the adoption, and because no other -- biological - parent can be indicated, the new criterion shall be fulfilled.

The balancing may be different if the child is conceived with the semen of an acquaintance of the mother and/or of her partner. [...]

4. The relation to the existing conditions for adoption

[...]

5. The relation to joint authority

[...] Since in the Netherlands joint authority is available as an adequate alternative for adoption, aimed at protecting the family life of a child with its de facto carers/upbringers, it may be stated that adoption in many cases is not really necessary anymore. [...]

6. Strong and weak adoption

[a brief discussion of why no weak form of adoption is proposed to exist alongside the existing, strong form]

7. Consequences for private international law

The bill, intending to allow adoption by persons of the same sex, only relates to adoptions of children with their ordinary residence in the Netherlands. To these, as to adoptions in the Netherlands by persons of different sexes, Dutch law is applicable. So problems relating to the applicability of foreign substantive laws that do not know adoption by same-sex partners, will hardly arise. [...]

The question whether adoptions by persons of the same sex, decided upon in the Netherlands, will be recognised in other countries is of a different nature. Since the legal developments abroad with respect to this form of adoption, have not progressed as far as in the Netherlands, it may be expected that, for the time being, the family ties created by such adoptions will not be recognised abroad. [...] Possibly, the parental authority linked to these adoptions could be recognised in some countries. [...]

Explanation per article

[...]

Article III

[...] This article will make it possible to let the Act enter into force on the same day as the separate Act [still to be introduced] that will adjust other Acts to the possibility of adoption by persons of the same sex. The aim is [...] to let this Act enter into force on 1 January 2001.

[Given the clear commitment of the three coalition parties to this bill, expressed in the government manifesto of August 1998, the passage through the Lower House of Parliament should be politically unproblematic. The bill would probably also get a majority in the Upper House. All this would easily take more than one year, hence the foreseen date in 2001. The greatest risk for the passage of this bill is a possible breakdown of the current coalition of social democrats, liberals, and social-liberal democrats. That could happen over a number of completely unrelated issues. Such a breakdown would normally lead to new elections, and thus at least to delay in the passage of the bill. Furthermore, if then a new coalition would be formed including the christian democrats, the new government might withdraw the bill. But that is mere speculation.]