On 20 September, Women, Family and Community Development Minister Datuk Seri Rina Harun mentioned in Parliament that there are 4,422 children who have lost a parent, parents or guardian due to Covid-19 as of September 13, 2021. Out of this total, 154 of them became orphans as they have lost both parents to Covid-19.
Looking at this dire situation, some Malaysians might be even more inclined to adopt a child. But as you may know, the process of adopting a child in Malaysia can be a long, complicated and emotional ride. Factors such as the legal processes and other obstacles that one has to face prior to adoption can often feel overwhelming.
Although there are many sources out there on the steps to adopt, we feel that it is not comprehensive or simple enough and hence, have decided to put it in an easy to follow step-by-step guide.
Step 1: Know your reasons for adopting.
Before embarking on the process of adoption, you must be clear about your motivations for doing so as it is a lifelong decision that you’re making. It would be important to be honest about any specific needs and limits you may have.
As provided by Orphancare, here are a few questions to ask if adoption is suitable for you:
- Why do you want to adopt?
- Can you prioritise your child’s needs?
- Do you have a place for him/her in your home?
- Are you prepared to help her/him get over physical and emotional trauma?
- Can you provide financial security for the child?
- Do you have people to go to for advice, help and support?
Step 2: Decide whether you are looking to adopt a baby, an older child or a special needs child
Children available for adoption range in age and background. Although many may be inclined to adopt an infant (0 – 2 years old), those most in need of a family are actually older children (2 – 18 years old) who are often stuck in institutions until they turn 18 at which point would have to leave as well as children with special needs.
OrphanCare which provides adoption services arrange the adoption of older children, special needs children and babies who come through their baby hatches, orphanages and other care facilities urges Malaysians to adopt older children, even a pair of siblings as well as special needs children who would thrive in the care of a loving family.
“Adopting children with special needs can be incredibly rewarding and fulfilling.”
Step 3: See which process is right for you
According to the MyGovernment website, there are generally two separate but concurrent legislative schemes to adopt a child in Peninsular Malaysia (Sabah and Sarawak have their own processes).
- Registration Through Court Order (Adoption Act 1952) (Act 257) which is only applicable to non-Muslims;
- De Facto Registration (Adoption Registration Act 1952) (Act 253) which is applicable to both Muslims and non-Muslims.
Registration Through Court Order (Adoption Act 1952) (Act 257)
For non-Muslims wishing to adopt under the Adoption Act 1952 (Court Order), applicants must apply through a law firm appointed by the adoptive parent or Legal Aid Department. Applications must be submitted to the headquarters of the National Registration Department in Putrajaya and the adoption order is made in either the High Court or Sessions Court. The whole process takes approximately six to nine months.
A child adopted under the Adoption Act is legally considered a child born to the adoptive parents in lawful wedlock. According to section 9 of the Adoption Act, upon an adoption order being made, all rights, duties, obligations and liabilities of the birth parents, in relation to the future custody, maintenance and education of the adopted child, shall be extinguished, and all such rights, duties, obligations and liabilities shall vest in and be exercisable by and enforceable against the adoptive parents as though the adopted child was a child born to the adoptive parents in lawful wedlock.
De Facto Registration (Adoption Registration Act 1952) (Act 253)
The Adoption Registration Act 1952 (Act 253) (De Facto) is under the jurisdiction of the National Registration Department and seeks to register a De Facto adoptive child in which a child is in custody, being raised, borne and educated by a spouse or spouses jointly, as a child or their own child for a period of not less than two years before the adoption registration is made. Application for De Facto Adoption can be made at NRD office which is in proximity to the residence of a person or adoptive parent and adopted child.
The Act takes into account Islamic law to make it possible for Muslims to legally adopt children. However it is not limited to only Muslims. According to MahWengKwai & Associates, the Adoption Act does not apply to Muslims for two main reasons:
The first is that 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. The fact that the child is adopted is not hidden. There must be a surrender of the original birth certificate of the child which would be replaced with a certificate of adoption. In contrast, the Adoption Act re-issues the birth certificate to the adoptive parents.
Secondly, Islam does not recognize any change to a child’s inheritance rights despite the adoption. This means that a child adopted under the Registration of Adoptions Act inherits from the birth parents and not the adoptive parents. In contrast, a child adopted under the Adoption Act inherits from the adoptive parents and not the birth parents.
It is, 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. After all, the intention of the Registration of Adoptions Act is to allow the adoptive parents to take care of the adopted child as their own.
Step 4: Requirements and eligibility
Both process have their own requirements and sets of eligibility according to JPN:
For De Facto registration, the child must be:
- Never married,
- Aged under 18 and residing in Peninsular Malaysia,
- Has been in custody, being raised, borne and educated by a person or spouses together, as a child or their own child for a period of not less than two years continuously before the registration of adoption is made,
- Children are citizens or non-citizens,
- Children have their ID (Birth Certificate / Identity Card / Passport / Entry Permit for foreigners and visa must be two years in length).
Whilst the set of requirements for applicants include:
- One of the adoptive parents (husband/wife) or adoptive mother (single) or adoptive father (single) must be a citizen or permanent resident,
- Adoptive parents or adoptive mother (single) or adoptive father (single) must be aged 25 and above and at least 18 years older than the child,
- If married must have a legal marriage document,
- Adoption with consent from the natural parents or the female single parent. In the absence of consent, the adoption can still proceed through a court order or social report from the Department of Social Welfare,
- Application must be submitted to the NRD at the district where the adoptive parents are resident.
In terms of documentation the process requires:
- Application form JPN.AA01 for registration of adoption,
- Birth Certificate or identification document of the child (original and copy),
- Statutory declaration or letter of consent for adoption (JPN.AA07) from the biological parents or single mother. If the mother is under 18 years of age, letter of consent must be signed either with mother or father or sibling of the mother above 18 years old,
- Statutory Declaration by adoptive parent,
- A copy of the identity card or passport of each of the biological parents stated in the child’s Birth Certificate,
- Identity cards or passports and visas of the adoptive parents (originals and copies),
- Marriage document of the adoptive parents (original and copy),
- Birth Certificates or identification documents of the children of the adoptive parents (if any),
- Full pictures of children in postcard size,
- Proof of residence of the applicant in the form of an electricity bill / water bill / telephone bill / assessment / certification,
- Death Certificates of the child’s biological parents if they have died,
- Copy of the applicant’s salary statement (if any),
- Form 13 (The applicant is required to obtain Form 12 from any nearby National Registration Department Office or from the Social Welfare Office in the residential area of a foster parent before Form 13 is issued by the Social Welfare Office).
Meanwhile a Court Order adoption requires:
- The consent of biological parents,
- That the child has been under the care of the applicant for at least three consecutive months,
- A completed JPN.AA 04 form,
- A Section 25 (2) Order and Schedule from Court (original and copy),
- A copy of Identity Card or passport of adoptive parents or adoptive mother (single) / adoptive father (single) which has been certified by the Law Firm and,
- The Birth certificate of the adoptive child (original and copy).
- Payment of RM5
Step 5: Procedure
De Facto Registration (Adoption Registration Act 1952) (Act 253)
All applications for registration will be interviewed through proceeding sessions before the Registrar. Parties who should attend include:
- Foster parents or foster mother or foster father,
- Children,
- Legitimate parents / guardians.
The presence of biological parents may be exempted if there is a letter of consent for adoption (JPN.AA07) and payment upon approval is RM30.00.
Registration Through Court Order (Adoption Act 1952) (Act 257)
The application is commenced by filing an adoption petition at the High Court of Malaya (or the Sessions Court). An adoption petition is supported by an affidavit affirmed by the adoptive parents. The adoptive parents are ordinarily required to obtain express consent from the child’s birth parents to the adoption. However, the court has the discretion, pursuant to Section 5(1) of the Adoption Act, to dispense with the birth parents’ consent if, for example, the child has been abandoned, ill-treated, or if consent is being unreasonably withheld.
Adoption hearings are conducted confidentially in the judge’s chambers and at the first hearing, the 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.
The guardian ad litem will monitor the home environment and interview the adoptive parents and the child. The welfare officer will then prepare a welfare report for the court either to support or oppose the adoption application. The court will usually fix the subsequent hearing about 3 months from the date of the first hearing to enable the welfare officer sufficient time to complete his investigations.
At the second hearing the 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 the adoption application 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 the 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.
When you’ve gone through all the steps, the child will be yours to call legally! To find out more check out MyGovernment and JPN website. Several law firms have also published guides on how to adopt for your reference. While the process may seem tedious, there are plenty of resources or agencies that can help you. Most importantly, just think about the life you’ll be changing once this is over.
Are you looking to adopt or have experienced the processes of adoption before? What do you think of them? Let us know in the comment section below.
Also read: “I can’t wait forever,” M’sian Pleads For Public To Help Him Find His Biological Family
