Adoption in Malaysia
Adoption refers to the act of legally taking another person’s child into your family to raise as your own. Adoptive parents may decide to adopt for many different reasons and for whatever the reasons are, adoption should be done lawfully and legally.
Why should we Apply for Adoption legally?
- A valid registration/application provides protection for both the child and the adoptive parents to be legally recognized under the law.
- Adoptive parents can legally deal with school registration, passport application, and other official transactions for the adoptive children.
- The natural parents of the adopted child will be prohibited to take the child back after the adoption has been granted.
- Adoptive parents can inherit the property of the adopted children if the adopted children predecease the adoptive parents.
- Adoptive parents can apply to change the surname of adoptive children.
The Adoption Process
There are two separate but concurrent legislative schemes in Malaysia for the adoption of children:
- Adoption Act 1952 ; and
- Registration of Adoptions Act 1952.
The Adoption Act 1952 is only applicable to non-Muslims while the Registration of Adoptions Act caters for adoption by Muslims. (Note: its application is not restricted to Muslims only).
Adoption Act 1952
- Effect of an adoption order
According to section 9 of the Adoption Act 1952, a child adopted under the Adoption Act is legally considered a child born to the adoptive parents in lawful wedlock. Here, the right to inheritance under the Wills Act 1959 and the Distribution Act 1958 is also transferred from the birth parents to the adoptive parents.
- Application for an adoption order
A formal application is required to made to court and the adoption is allowed only with the courts order. The whole process takes approximately 6 to 9 months.
- File and adoption petition at the High Court of Malaya (or the Sessions Court)- supported by an affidavit affirmed by the adoptive parents and an express consent from the child’s birth parents to the adoption is required
(Note: Consent from the birth parents is not required if the child has been abandoned, ill-treated, or if consent is being unreasonably withheld.
- Adoption hearing is conducted confidentially in the judge’s chambers.
- First hearing: court will grant an interim order for the appointment of a social welfare officer as the guardian ad litem (court appointed guardian) to investigate the welfare of the child who will then prepare a welfare report for the court.
- Second hearing: court will consider the welfare report and decide the application in the best interests of the child. The court is also entitled to and may interview the adoptive parents to confirm their intentions and the child to ascertain his or her wishes.
- If adoption is allowed –
- The order for adoption will be sealed and a copy will be sent to the National Registration Department for registration in the Adopted Children Register.
- The National Registration Department will then cancel the original birth certificate and re-issue birth certificate for the adopted child.
- The new birth certificate will carry the name of the adoptive parents and the child as if the child was born to the adoptive parents.
( Note: the new birth certificate will not have any reference to the adoption or to the child’s birth parents)
Registration of Adoptions Act 1952
Ø Effect of registration
The Registration of Adoptions Act takes into account Islamic law to make it possible for Muslims to legally adopt children. There are two reasons why the Adoption Act 1952 does not apply to Muslims. Firstly, Islam requires that the child’s original identity and the identity of his birth parents be kept on record for disclosure to the child at a suitable age. In practice of “open adoption”, the adopted child is eventually told that he or she was adopted. Secondly, Islam does not recognize any change to a child’s inheritance rights despite the adoption. The rules of Islamic inheritance law (Fareid) apply to Muslims. Accordingly, the Registration of Adoptions Act is silent on the rights of inheritance. The result is that a child adopted under the Registration of Adoptions Act inherits from the birth parents and not the adoptive parents.
The Registration of Adoptions Act is noticeably silent on legal effect of the registration. However, arguable that save for the issue of inheritance and the child’s birth identity, a child adopted under the Registration of Adoptions Act enjoys the same rights as a birth child.
Ø Application for registration
1. The process of adoption under the Registration of Adoptions Act is commonly referred to as “departmental adoption” as the application is made to and processed by the National Registration Department.
2. Section 6 of the Registration of Adoptions Act 1952 –
o child must be in the custody of the adoptive parents for at least two years; and
o express consent from the birth parents is required.
3. The Registrar of Adoptions will interview the adoptive parents and require the parents to obtain a report from the welfare department on the adoption.
4. If application is allowed – an entry will be made in the Registration of Adoptions Register and a certificate of adoption will be issued.
Citizenship of Adoption Children
Both the Adoption Act and the Registration of adoption Act are silent ion the issue of the citizenship for adopted children. Where the child’s original immigration status is uncertain or unknown, the National Registration Department will declare the child as a “permanent resident” or “non-citizen” on the re-issued birth certificate or the certificate of adoption. The National Registration Department will disregard the fact that the adoptive parents may be Malaysian citizens. (Note: A judicial review application may be filed to challenge the decision of the National Registration Department for failing to recognise the adopted child’s citizenship as Malaysian)
In a nutshell, parents who are considering adopting a child should go the legal way and adhere to the applicable laws to protect the child’s best intrest.
