Comparative legal characteristics of the legislation on the adoption of children by same-sex couples in the Russian Federation and the People's Republic of China
Щербакова, А. Р. Comparative legal characteristics of the legislation on the adoption of children by same-sex couples in the Russian Federation and the People's Republic of China / А. Р. Щербакова. — Текст : непосредственный // Новый юридический вестник. — 2021. — № 2 (26). — С. 21-24. — URL: https://moluch.ru/th/9/archive/188/5964/ (дата обращения: 19.04.2021).
In this article, the author conducts a comparative analysis of the legislation regulating the adoption of children by same-sex couples in the Russian Federation and the People's Republic of China, and also considers the application of these laws in practice, giving as an example real cases of adoption of children by same-sex couples in the Russian Federation and the People's Republic of China.
Keywords: same-sex marriage, Chinese law, Russian law, adoption, analysis
May 17, 1990 was a significant day for many people. On this day, the World Health Organization removed homosexuality (that is, sexual attraction to persons of the same sex) from the list of mental illnesses. Until this day, homosexuality was considered a mental disorder and was classified as a disease belonging to the group of psychosexual disorders.
30 years have passed since the exclusion of homosexuality from the list of mental disorders, but the world still does not trust people whose sexual orientation is usually called “non-traditional”. Many countries, including, for example, Russia, have not been able to accept this fact and change their point of view on this issue. Other countries, such as China, are gradually moving towards adoption and legalization.
The laws of some countries have forced people of “non-traditional” orientation into rigid borders, which in many ways restricts the life and freedoms of homosexuals and deprived many of the rights available to people with “traditional” orientation. Among which, in my opinion, one of the most important rights is the right to be a parent.
And before we consider the adoption of children by same-sex couples, it is necessary first of all to study the possibility of marriage with a person of their own sex in the analyzed countries, namely in the Russian Federation and in the People's Republic of China.
In this respect, the laws of the People's Republic of China (hereinafter referred to as the PRC) and the Russian Federation (hereinafter referred to as the RF) are largely similar.
Marriage in China is governed by the marriage Law of the PRC. Based on the provisions of the act directly same-sex marriage in China, as in Russia is not prohibited, however, as article 12 of the Family code and articles 8, 9 of the PRC Law on marriage, talking about marriage just mention Union “men and women”, thereby excluding the possibility of marriage between people of the same sex.
However, it should be noted here the important news that in 2019 it became possible to enter into same-sex marriages in China. And the first such important step was made to the islands of Taiwan (which the PRC considers its province).
On May 24, 2017, the Constitutional Court ruled that same-sex couples have the right to marry and gave Parliament two years to adequately change the marriage law. On May 17, 2019, the country's parliament considered three bills and eventually adopted one in which same-sex unions are concluded in the form of marriage .
Based on this, we can conclude that, although the Law of the People's Republic of China “marriage” is not marriage between people of the same sex, the possibility of the legalization of same-sex relations in China still exists; the PRC laws do not prescribe a strict ban, but allow. And this step of the state cannot but rejoice. Is such a step possible on the part of the Russian state? It's hard to say. The prospect of legalizing same-sex marriage on the territory of the Russian Federation, in my opinion, is not very great. The conclusion of a same-sex marriage by citizens of the Russian Federation abroad can also not be recognized, since such a fact is a clear encroachment on the public order of the Russian Federation.
The very fact of “non-traditional relations” does not fit into the framework of the concept of “normality” of Russian citizens. Recognition of same-sex unions concluded in a foreign state on the territory of the Russian Federation would contradict the established norms of morality and morality; the foundations of the rule of law of the Russian Federation. In my opinion, it is difficult to agree with the opinion of L. V. Silaeva, that, based on the provisions of Article 158 and Article 159 of the Family Code of the Russian Federation, in which there is no indication of the need for different-sex parties, same-sex marriages concluded on the territory of a foreign state should be recognized in any case . These marriages cannot be recognized as valid in accordance with the public order clause in the family law of the Russian Federation (Article 167 of the Family Code of the Russian Federation). Which, I think, is completely wrong, because, according to the Constitution of the Russian Federation, any discrimination is prohibited.
Based on the above, it can be concluded that the legislation on the conclusion of same-sex marriage and its legalization in the territory of the Russian Federation is much stricter than in the territory of the People's Republic of China. However, does this mean that the state adheres to the same position on the issue of adoption of children by same-sex couples?
As mentioned earlier, Taiwan legalized the registration of same-sex marriages and the same law also granted same-sex couples the right to adopt their spouse's blood children. However, what about children who are blood relatives of neither spouse?
As for the Russian Federation, here the legislator quite clearly outlined his position. The Russian Federation not only does not allow marriage between persons of the same sex, but also strictly prohibits the transfer of children being citizens of the Russian Federation for adoption to persons in Union concluded between persons of the same sex, recognized as marriage and registered in accordance with the laws of the state in which such marriage is allowed as well as prohibited the transfer of children to persons not married, but are citizens of the state in which such marriage is allowed. Thus, the laws of the Russian Federation not only put bans for their own citizens, but also for citizens of other countries, thereby, in my opinion, condemning the laws of countries where same-sex marriage is the norm.
The main document containing the rules and procedure for adoption in the People's Republic of China is the Law of the People's Republic of China «on adoption» of 29.12.1991. According to article 6 of the law under consideration, adoptive parents must meet four requirements at the same time, namely: not to have children, have the ability and ability to raise adopted children and give them an education, do not have diseases that prevent adoption and be over 30 years old. The law does not establish any other requirements. Article 10 of this law specifies that the adoption of children requires the consent of both spouses, without specifying that only a man and a woman must act as spouses.
Thus, the laws of the People's Republic of China do not strictly prohibit adoption by same-sex couples, both in theory and in practice.
So, in August 2019, three months after China legalized same-sex marriage, in Beijing, two men who are officially married for the first time were approved custody of a child. The capital of China has joined the list of cities where same-sex couples officially approve custody of children . The notary office in the eastern city of Nanjing, which approved a custody agreement for a gay couple, has attracted additional attention by clearly supporting the local LGBT community, according to China's Weibo news portal. “We are here to serve not only traditional families, but also LGBT people,” said a representative of the office.
The situation in the Russian Federation is quite the opposite. In July 2019, the Investigative Committee of Russia opened a criminal case against employees of the guardianship authorities who allowed the adoption of children by a same-sex couple.
According to the investigation, the man has been raising two young adopted boys in living conditions with another man since 2010 (as the media managed to find out, the couple registered their relationship outside the Russian Federation after they adopted the children). At the same time, the adoptive parent promotes non-traditional relationships, forming “distorted ideas about family values” in children, harming their health, moral and spiritual development . According to the investigation, the staff of the guardianship authorities did nothing to protect the children from harmful information.
At the same time, the Human Rights Council supported the family and reminded that in Russia there are many families where the child is raised only by two women: mother and grandmother.
In addition to the case under consideration, there are still same-sex families in Russia that are not officially married, raising foster children (both children of their partner and children taken from the shelter). Such families, however, try to carefully hide from unnecessary attention, as they are afraid of criminal prosecution.
After the analysis, it can be concluded that despite the fact that the Law of the People's Republic of China “on marriage”, as well as the Family Code of the Russian Federation under marriage understands the union of a man and a woman, China has stepped much further and, giving priority to the care of children and equality, legalized not only same-sex marriages, but also gave the opportunity to same-sex couples who In turn, the Russian Federation is in no hurry to follow the example of China and considers “non-traditional marriages” as a “distortion of ideas about family values”, not allowing children to find caring parents, and couples to feel what it is to be a parent.
- The Law of the People's Republic of China “On Adoption” (as amended in 1998) / / Legislation of China in Russian URL: http: / / chinalaw.canter/civil_law/china_adoption_law/revised_1998_russian/ (accessed 14.10.2021).
- The Law of the People's Republic of China “On Marriage” (as amended in 2001) URL: https://chinahelp.me / registry-office / zakon-knr-o-brake (accessed 14.10.2021).
- The decree of the RF Government dated 29.03.2000 No. 275 (ed. by 14.12.2019) «On approval of rules of transfer of children on adoption (adoption) and monitor their living conditions and upbringing in adoptive families on the territory of the Russian Federation and Rules of registration consular institutions of the Russian Federation children, citizens of the Russian Federation and adopted by foreign citizens or persons without citizenship» [Electronic resource]: Access from SPS “The consultant”.
- Family code of the Russian Federation from 29.12.1995 N 223-FZ (as amended on 06.02.2020) [Electronic resource]: Access from SPS «ConsultantPlus»
- Marysheva N. And. Family relationships involving foreigners: legal regulation in Russia. — M.: Volters Kluver, 2007.
- Silaev, L. V. Choice of law problems arising at the conclusion and dissolution of marriage // Actual problems of jurisprudence and ways to solve them: proceedings of the International Scientific and practical conference. Omsk: Russian State Social University, 2017.
- Silaev L. V. Conflict of laws problems arising during the conclusion and dissolution of marriage // Actual problems of jurisprudence and ways to solve them: proceedings of the International Scientific and practical conference. Omsk: Russian State Social University, 2017, pp. 61-63.
- Information and news portal about China "ekdme" URL:http://ekd.me/2019/08/v-pekine-odobrili-usynovlenie-detej-odnopolymi-parami/
- Official website of the Investigative Committee of the Russian Federation address: https://sledcom.ru/news/item/1373974/?to=31.07.2019&from=01.07.2019&type=main&dates=01.07.2019%20-%2031.07.2019 (accessed 14.10.2021)