Civil law provisions ‘restrictions on adoption of biological adoptees by single people’… Violation of the principles of equal rights and prohibition of excess

Civil law provisions ‘restrictions on adoption of biological adoptees by single people’… ‘Violation of the right to equality and the principle of prohibition of excess’

(Cheongju = Yonhap News) Reporter Seongmin Lee = In relation to a case in which a woman who attempted to adopt her deceased spouse's stepchild as a biological child had her application for adoption rejected on the grounds that she was single, the court requested a judicial review of the provisions of the Civil Act on the basis of the unconstitutionality.

According to the legal community on the 22nd, Cheongju District Court's 1st Family Division (Chief Judge Kyung-hee Lee) cited Mr. A's application and submitted a request to the Constitutional Court for a judgment on the unconstitutionality of Article 908-2, Paragraph 1, No. 1 of the Civil Act.

Mr. A married Mr. B in October 2019, and Mr. B died in February 2024.

Mr. A later filed a claim to the court for the biological adoption of C (16), whom Mr. B had with his former spouse, but the court dismissed the claim, saying that he did not meet the eligibility requirements for adoption.

The current civil law, in principle, allows couples who have been married for more than three years to jointly adopt a biological child, and exceptions are recognized only when one side of a couple who has been married for more than one year adopts the spouse's biological child as a biological adoptive child.

In the case of Mr. A, the court ruled that he did not meet the requirements for biological adoption because his marriage ended due to the death of his spouse.

Mr. A appealed this decision and filed a request for unconstitutionality review, claiming that the provisions of the Civil Code fundamentally restricting the adoption of biological children by single people infringe the right to equality and freedom of family life. The court that heard the case also judged that Mr. A's application was valid.

The court ruled that what should be considered when deciding whether to allow a biological adoptive child to be adopted is the appropriateness of the adoption considering the welfare of the adopted child, not the marital status of the adoptive parents themselves.

Even though the court can judge the adequacy by examining the economic and social capabilities, emotional stability, and parenting experience of the adoptive parents, blocking claims solely because they are single is inconsistent with the purpose of the law, which is to promote the welfare of adopted children.

The court also considered that general adoption, which is allowed for single people, cannot replace biological adoption as the legal relationship with biological parents is maintained.

In addition, it was pointed out that since the Special Act on Domestic Adoption already allows adoption by single persons of children subject to protection, it is contradictory to block the adoption of biological adoptive persons by single persons for general children such as Group C.

Chief Judge Lee ruled, "This legal provision, which presupposes that a single person's adoption of a biological child is against the welfare of the adopted child, is based on social prejudice against single-parent families, and further strengthens that prejudice. There is significant reason to recognize that the legal provision in this case is unconstitutional because it violates the right to equality of single people and the freedom of family life by violating the principle of prohibition of excess."