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Kinship by Adoption: Where Adoption Differs from Natural Affinity*

Published online by Cambridge University Press:  16 February 2016

Pinhas Shifman
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Extract

Adoption creates a familial relationship of parent and child between people who are not naturally related. In the ancient world, the institution of adoption served as a means of satisfying the need for family continuity, whether for religious-ritual purposes or for practical purposes, to produce an heir capable of inheriting the family property. To this day, several legal systems exist which allow adoption of adults in order to grant an adopter the right to appoint an heir. Such a right is important in those legal systems – which does not include the Israeli system – in which a person's right to make testamentary dispositions is limited. The testator who may not bequeath his property to a stranger as he wishes may overcome this limitation by adopting that stranger and thus making him a relative.

Type
Research Article
Information
Israel Law Review , Volume 23 , Issue 1 , Winter 1989 , pp. 34 - 76
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1989

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Footnotes

**

Professor of Family Law, Faculty of Law, The Hebrew University of Jerusalem.

References

1 Huard, , “The Law of Adoption: Ancient and Modern” (1956) 9 Vanderbilt L.R. 743 Google Scholar; Krause, , “Creation of Relationships of Kinship”, International Encyclopaedia of Comparative Law, vol. 4, ch. 6, p. 12 Google Scholar.

2 Cretney, , Principles of Family Law (London, 1984) 80–89 Google Scholar; Clark, , The Law of Domestic Relations in the United States (St. Paul, 1968) 652–653 Google Scholar; Waldington, , “Adoption of Adults: A Family Law Anomaly” (1969) 54 Cornell L.R. 566 Google Scholar.

3 The possibility of adopting an adult is sometimes exploited for other purposes, such as setting up a homosexual family where it is not possible for two people of the same sex to be married. Such an adoption was recognized in 1982 in the State of New York, in the case of In Re Adult Anonymous 11. 88 A.D. 2nd 30, 452 N.Y.S. 2d 198.

4 The adoption of an adult, i.e. a person over the age of eighteen years, is not usually possible under Israeli law, and such an adoption is usually not necessary for the purpose of naming an heir: this can be effected through a will by virtue of the principle of the freedom to testate. Departure from this limitation is possible in certain cases, according to sec. 25 of the Adoption of Children Law, 1981 (35 L.S.I. 360). And see, e.g. A. v. Attorney General (1965) 19(ii) P.D. 309.

5 On the principles underlying this view of adoption, see Kadushin, , “Principles, Values and Assumption Underlying Adoption Practice” in Adoption – Current Issues and Trends, Schadev, , ed., (Toronto, 1984) 3 Google Scholar.

6 Adoption of Children Law, 1960 (14 L.S.I. 93)Google Scholar.

7 See Shifman, , Family Law in Israel, Vol. I (Jerusalem, 1984, in Hebrew) sec. 6Google Scholar.

8 See Schereschewsky, , Family Law (Jerusalem, 1958, in Hebrew) 363–368 Google Scholar.

9 35 L.S.I. 360, at 363.

10 On the major trends in the United States on this point, see Revised Uniform Adoption Act, 1969, sec. 14(a)(2), which states that one of the consequences of adoption is to “create the relationship of parent and child between petitioner and the adopted individual, as if the adopted individual were a legitimate blood descendant of the petitioner, for all purposes…” And see Shifman, , Adoption of Children in Israel (Study submitted to the Committee on the Adoption of Children Law, Jerusalem, 1977) 81–82 Google Scholar,

11 As was argued in the explanatory notes to the Individual and the Family Bill (Ministry of Justice, Jerusalem, 1955).

12 L.S.I. Special volume, p. 82.

13 For example, the Succession Law, 1965, (19 L.S.I. 58), sec. 57(d) defines a “child” for the purpose of maintenance from the state as “including…an adopted child…”; the Family Law Amendment (Maintenance) Law, 1959, (13 L.S.I. 73) defines in sec. l(a) “child” – “…including an adoptee” (and see sec. l(b)); the Maintenance (Assurance of Payment) Law, 1972 (26 L.S.I. 103), sec. 1, defines “minor child” as “including a minor adoptee…”; the Youth (Care and Supervision) Law, 1960 (14 L.S.I. 44), sec. 1, defines “responsible for a minor” – “a parent…including…an adopter…”; the Civil Wrongs Ordinance (New Version) (2 L.S.I.[N.V.] 5), sec. 2, defines a child as “including an adopted child”, and it states: “…and in deducing any relationship which under the provisions of this Ordinance is included within the meaning of the expressions “parent” and “child” any illegitimate person and any adopted person shall be treated as the legitimate offspring of his mother and reputed father or, as the case may be, of his adopter”; the Treatment of Mentally Sick Persons Law, 1955 (9 L.S.I. 132), sec. 1, defines “relative” as including “an adoptive parent and an adoptive child”.

14 16 L.S.I. 106, as amended 30 L.S.I. 45.

15 On the problems involved in the practical application of this section, see A. et al. v. B. (1980) 34(ii) P.D. 253. See also A. v. B. (1985) 39(ii) P.D. 1.

16 21 L.S.I. 112, as amended 32 L.S.I. 195.

17 Report of the Committee on the Adoption of Children Law (Ministry of Justice, Jerusalem, 1979) 44; Draft Memorandum – Adoption of Children Bill (23.11.80).

18 See, e.g. the British Adoption Act, 1976, which states in sec. 47( 1) that a child who is adopted continues to be subject to the prohibitions on marriage that pertained before hand with respect to his natural parents and other family members, as if he were not adopted. The practical significance of this provision was enhanced with the institution of the registration of adoptions in Britain, See Cretney, op. cit supra n. 2, at 55.

19 See, in general, Shifman, op. cit. supra n. 7, sec. 139.

20 Sec. 30(a)(2) of the Law.

21 See Englard, I., “Adoption of Children in Israel – The Implementation of the Law” (1969) 1 Mishpatim 308, at 319 Google Scholar.

22 Ibid., at 336–337.

23 This was the ruling according to the previous law in A. and B. v. Attorney General (1974) 28(ii) P.D. 169.

24 In the words of the new Law, sec. 13(1).

25 Sec. 13(2).

26 This is the case, for example, in German Law (see: Shifman, Adoption of Children in Israel, (op. cit. supra n. 10, at 30) and in French law regarding “full” adoption (Shifman, at 41). In the U.S.A., there is no uniformity on this subject between the various states. Under the Uniform Marriage and Divorce Act, sec. 207(2), such marriage must be considered prohibited. The proposed prohibition is on “a marriage between an ancestor and a descendant, or between a brother and a sister, whether the relationship is by the half or the whole blood, or by adoption”. This is not accepted in all the states: in the decision of the Colorado Court in the case of Israel v. Allen, a law which prohibited a marriage between a brother and his adoptive sister was declared unconstitutional (195 Colo. 263, 577 P. 2d 762). However, the circumstances there were exceptional and the general reasoning of the Court, according to which the prohibitions on marriages between relatives are based on purely genetic considerations, is not convincing. In Pennsylvania, the Court decided that by virtue of the principle that an adoptee is considered to be a child of the adoptive family, marriage between siblings who are related by adoption must be prohibited, even in the absence of a specific legislative provision: In re MEW and MLB (1977) 3 Family Law Report 2602. And further on this topic, see Waldington, , “The Adopted Child and Intra-Family Marriage Prohibitions” (1963) 49 Va. L.R. 478 CrossRefGoogle Scholar, and also the notes in Weyrauch, and Katz, , American Family Law in Transition (Washington D.C., 1983) 392–394 Google Scholar. In Britain, marriage between adopter and adoptee is prohibited, but no prohibition exists on marriage between siblings related by adoption. For a critique, see Cretney, op. cit. supra n. 2, at 55.

27 Adoption of Children Bill, (H.H. 1981, no. 1533, p. 336) sec. 10, following the Report of the Committee on the Adoption of Children Law (sec. 40), in which it was proposed that the adoptee be subject to prohibitions on marriage with the adopters and their family as if he were their real child, as proposed in the report submitted to the Committee (supra n. 10, at 83).

28 And cf. sec. 348 of the Penal Law, 1977, and see above.

29 It is interesting to note, in this context, the words of the Midrash which tries to explain the creation of Eve “behind Adam's back” by saying that it was in order that he should not reject her. In support, the Midrash cites the words of a “matron” to R. Jose: “…I was supposed to marry my mother's brother, and because I grew up in the same house as he, I grew ugly in his eyes, and he went and married another woman, who is not as beautiful as I” (Ber. Rabbah 17:7). And cf. the tendency of kibbutz children who have grown up in the same children's house to refrain from marrying each other: Talmon-Gerber, , “Choosing a Partner in the Kibbutz” in Individual and Society in the Kibbutz (Sociological Studies, Jerusalem, 1970) 171–192 Google Scholar.

30 This was the situation in the case of Israel v. Allen (supra n. 26), and in light of the special circumstances, the Court's reluctance to impose a prohibition is understandable. In the case of MEW and MLB (supra n. 26) in contrast, where the prohibition was upheld regarding an adoptive brother and sister, the parties had lived together for some time within the family framework.

31 This is the arrangement under German law (supra n. 26) and is also Cretney's proposal for a solution under English law (supra n. 26).

32 Adoption of Children Law, 1960, sec. 27(3). The only restriction appeared in the Adoption Registry Regulations, 1964, reg. 10(d), according to which the date that would be set for inspection would be no less than 45 days from the time of submission of the application, unless the welfare officer authorized earlier inspection. In practice, only a small number of adoptees have submitted an application for inspection of the adoption register. Only 103 people applied up till 1977, and of them, only a handful actually met with their natural family. For the most part, the adoptees were satisfied with receiving general information about the circumstances under which they were given up for adoption, and they did not insist on receiving information which would identify their natural families. See Shifman, op. cit. supra n. 10, at 22; Lion, Aviva, “A Survey of Fifty Adult Adoptees Who Used the Right of the Israeli ‘Open File’ Adoption Law” (Jerusalem, 1976)Google Scholar.

33 On the position of Jewish law regarding adoption, see Kister, , Adoption of Children in Israel (Tel Aviv, 1953, in Hebrew)Google Scholar; Rakover, , “Adoption in Jewish Law”, 11 De'ot 55 Google Scholar; Schereschewsky, op. cit, supra n. 8, at 363 ff.

34 In the West, only Scotland and Finland recognized this right at the time: See Eekelaar, , Family Law and Social Policy (London, 1978) 272–273 Google Scholar.

35 On the background to the amendment to the English Adoption Act, 1976, sec. 51 and its ramifications, see Hoggett, and Pearl, , The Family, Law and Society (London, 1987) 606 ff.Google Scholar; Cretney, op. cit. supra n. 2, at 473–475.

36 E.g. the State of Victoria in Australia (see Bates, , (1986–1987) 25 Journal of Family Law 39 Google Scholar) and also, with some reservations, in New Zealand (Atkin, ibid., at 191, 193–194).

37 In particular, after the publication of the book by Triseliotis, , In Search of Origins (London, 1973)Google Scholar, and see further, Klibanoff, , “Geneological Information in Adoption: The Adoptee's Quest and the Law” (1977) 11 Family Law Quarterly 185 Google Scholar; Sorosky, et al. , The Adoption Triangle (New York, 1978)Google Scholar; Horowitz, and Davidson, , Legal Rights of Children (Colorado, 1984) 414–417 Google Scholar.

38 For a summary of the discussion on this subject, see, in particular, Triseliotis, , “Obtaining Birth Certificates” in Adoption: Essays in Social Policy, Law and Sociology, Bean, P., ed., (London and New York, 1984) 38–53 Google Scholar.

39 This change took place mainly out of concern that suffering might be caused to the natural parents if their opinion was not sought on the question of the discovery of their identities by the adoptee. See Report of the Committee on the Adoption of Children Law (Ministry of Justice, 1979) 42–43 Google Scholar. See also Englard, op. cit. supra n. 21, at 308–335.

40 “On this matter the interest of the adoptive parents and the natural parents seem to coincide in opposition to those of the adopted person… But neither of these interests seems strong enough to deny a person essential knowledge about his own identity should he wish to have it. There can be few personal rights more fundamental than the right to know one's parentage”: Eekalaar, op. cit. supra n. 34.

41 Triseliotis, op. cit. supra n. 37; Sorosky, op. cit. supra n. 37, at 219–225. For a summary of the discussion, see Triseliotis, op. cit. supra n. 38, at 40–41.

42 On this matter, the permission granted to the marriage registrar to inspect the registry in order to check whether the candidates before him may marry each other is insufficient, for the adoptee has an interest to refrain, a priori, from becoming involved with a relative. Moreover, it is obvious that the marriage registrar's right of inspection is of no avail in the case of an adoptee who is considering living with someone without being married.

43 For an example of an application for inspection submitted by an adoptee motivated by a desire to obtain medical information, see the decision of the Court of Appeals in the State of Missouri, U.S.A. from 1981: Application of George, 625 S.W. 2nd 151, in which an adoptee suffering from leukemia sought information about his natural family in order to find a potential donor of bone marrow.

44 The concern sometimes voiced that revelation of the identity of the adoptee will lessen the number of families who are prepared to adopt does not seem to be serious, in view of the enormous gap between the huge demand for children on the part of potential adopters and the meagre supply of children who are eligible or available for adoption.

45 Triseliotis, op. cit. supra n. 37; Sorosky, op. cit. supra n. 37, at 219–225.

46 This is the position adopted in a number of states in the U.S.A. which allow the adoptee to receive only non-identifying material. In most states, however, the application for inspection falls within the discretion of the court, on the basis of good cause proved before the court. See Horowitz and Davidson, op. cit. supra n. 37, at 415.

47 Another possibility was raised in A v. Attorney General (1981) 35(iv) P.D. 151, where a mother's application for annulment of the adoption order was dismissed. The Court raised the possibility that when the adoptee reached majority, he might be able to establish contact with his mother, if he should wish to do so, and if he is allowed to inspect the adoption register. It is doubtful whether this could provide the mother with even a small measure of comfort (as the Judges thought), since few adoptees apply for such inspection, and what is more, the new Law places obstacles in their way by making inspection subject to the discretion of the welfare officer and the court (should the welfare officer refuse).

48 But such an application was dismissed by Etzioni J. in A. v. Attorney General (1967) 56 P.M. 190.

49 For similar proposals, see Sorosky, op. cit. supra n. 37, at 224. For legislation on this matter which in principle confers the rights of inspection on the adoptee and the natural parents, but which makes inspection conditional upon the consent of the other party, see the New Zealand Adult Adoption Information Act, 1986. (On this matter see Atkin, op. cit. supra n. 36, at 191, 191–196). On litigation in the United States concerning the desire of natural parentsto seek out their child who was adopted, see Horowitz and Davidson, op. cit. supra n. 37, at 417.

50 Chipper v. Turkniz (1978) 32(ii) P.D. 589. This case deals with the interim period between the Adoption Law of 1960 and the Succession law, 1965, which, as we shall see below, gave the adoptee the right to inherit his natural family as well as the adopters.

51 Sec. 16 of the Succession Law, 1965.

52 Adoption of Children Law, 1981, sec. 16(3).

53 As stated in sec. 16(a) of the Succession Law: “A legally adopted child succeeds his adopter as if he were his child; the issue of an adopted child likewise succeed the adopter”. For some reason, it does not say that the adopter succeeds the issue of the adoptee, even though regarding the right of the adoptee's issue to succeed the adopter, the legislator did not rely on the principle of representation (sec. 14 of the Succession Law, 1965) and mentioned them specifically. I tend to the view that with respect to the adopter succeeding the issue of the adoptee, a negative conclusion ought not to be drawn, by virtue of the rule “from the affirmative one hears the negative”, and the principle of representation will, nevertheless, apply here.

54 Sec. 16(b) of the Succession Law provides: “An adopted child and his issue do not succeed on intestacy the relatives of the adopter…the relatives of the adopter do not succeed on intestacy the adopted child”. Here, too, the children of the adoptee are missing from the end, but it is clear that if the relatives of the adopter do not succeed the adoptee, then neither do they succeed his children. The expression “relatives” must be interpreted, it seems, according to sec. 10 (although this section deals only with the “relatives of the deceased”) as applying to children and their children, parents and their children, and grandparents and their children, these being the relatives who are entitled, in principle, to succeed by law.

55 Sec. 16(c) of the Succession Law provides: “The adopted child and his issue succeed the relatives of the adopted child, but the parents and grandparents of the adopted child and their issue do not succeed the adopted child”. It must be assumed that the expression “and their issue” applies both to the parents of the adoptee and to his grandparents. On the other hand, the symmetry is once again missing, and the issue of the adoptee mentioned at the beginning of the section are not mentioned here. And see the note above.

56 Sec. 1(b). Emphasis added.

57 “What the legislator desires is to improve the position of adopted children, so that they will succeed their adopters and their natural parents, and we can only carry out that wish, even if we do not do so wholeheartedly,” in the words of the Supreme Court as per H. Cohn J. in Proper v. Custodian General (1981) 35(ii) P.D. 561. Elon J., on the other hand (loc. cit., 564) repeated what he said in Chipper v. Turkniz, supra n. 50, at 597, to theleffect that this arrangement which the legislator (and, by implication, the judge as well) considered “good and reasonable” was engendered by the principle of the welfare of the adoptee. The idea that the welfare of the adoptee requires that he be entitled to additional legacies and inheritances, even those from which he has been cut off, would seem to me to be open to criticism. Should the only expression of natural affinity that remains in spite of the adoption be a purely material one? Apparently, this is another manifestation of the attitude of Jewish law, according to which blood ties may not be severed (see Chipper v. Turkniz, supra n. 50, at 592–593). It should, however, be mentioned that whereas according to Jewish law, the orders of succession are immutable (and only a gift in one's lifetime may fulfil the role of a will), the secular Succession Law is based on the principle of the freedom to testate, and the rules of intestate succession are designed for no purpose other than to reflect the estimated wishes of most testators. It is difficult to imagine that a person who sought to detach himself from his child and who surrendered him for adoption would nevertheless wish to include this child amongst his heirs.

58 This was the situation in Chipper v. Turkniz, (supra n. 50) and regarding which the Court said that limited adoption is appropriate (at 597). For a discussion of limited adoption, see infra, sec. 6.

59 Supra n. 57.

60 The Court took an unusual step in returning the case to the District Court so that the natural daughter could be summoned to appear before it, after the daughter did not show up at the hearing and her rights were attended to by the Custodian General. The Court ordered that when she appeared, the possibility of waiving the inheritance be explained to her.

61 Prior to the amendment of the Succession Law in 1985, children from a former marriage were entitled to three quarters of the estate, as opposed to other children. After the amendment, the distinction between children of different types was abolished, and their right was set at half the estate. And further on this matter see Blum v. Einstein (1985) 39(iii) P.D. 147. (Prior to the amendment, a child adopted by the testator was included in the category of children from another marriage.)

62 Elon J., in his separate opinion, commented that because the daughter was adopted by the mother's new spouse when she was sixteen and a half years old, it must be assumed that up till that time, the love and affinity between a father and his daughter would have developed, although the relationship may have been terminated with the adoption, even if there is no information to this effect (at p. 564). In my opinion, the opposite is true: if the Court saw fit to issue an adoption order which severed the ties between the daughter and her father when she was already so close to majority, rather than to order a limited adoption, it did so only because there was no love or affinity between the father and his daughter in that particular family which disintegrated. Were this not so, we would have to assume that the Court which issued the adoption order acted to the severe detriment of the child by legally severing her from her natural father to whom she was emotionally attached, according to the possibility posited by Elon J.

63 The problem is not lessened if one takes account of the fact that when the adoption order was issued, i.e. in 1964, prior to the enactment of the Succession Law, 1965, the legal situation was that an adoptee did not succeed his natural family. Elon J., in his separate judgment, held that on the other hand, “in normal times, the natural parents are presumed to know the ramifications of the adoption of the child by another, for they receive a full and detailed explanation of the consequences at the time of adoption. And if they did not specify otherwise in their will, then their wish, like that of the legislator, was that their natural child should take his share of the estate with the other natural relatives, as specified in the Law, and in conformity with the supreme principle of the welfare of the child” (p. 565). I do not know the basis for the Judge's presumption regarding the full and detailed explanation of the laws of succession received by, for example, a young girl undergoing an unwanted pregnancy, who wishes to surrender her child for adoption. The opinion of Bejski J. would seem to be more persuasive: that in view of the break between the adoptee and his natural family, “the parent no longer deems it necessary to plan his actions in order to ensure that his property will pass on to those of this family in respect of whom he bears an obligation or he wishes to ensure their existence…”, and furthermore that “the double gain of the adoptee…constitutes unjustified harm, from a socio-economic point of view, to the heirs (of the natural parents)” (at 563).

64 In the words of Cheshin J. in Hershkowitz v. Greenberger (1955) 9 P.D. 791, at 802.

65 For a comparative survey, see Krause, op. cit. supra n. 1, at 86–91.

66 Sec. 16(1) of the Adoption of Children Law, 1981.

67 This is one of the exceptions to the rule that there is no adoption other than by a husband and wife together. See sec. 3(1) of the Law.

68 Sec. 16 of the Law.

69 There are some states in which this is expressly laid down. Thus, in France, for example, an amendment to the Law of 1976 states that the adoption of the child of a spouse does not abolish the tie between the child and his natural parent or his other natural family, whereas previously, the solution adopted was that the natural parent, too, “adopts” the child (Loi du 22 décembre 1976 modifiant certaines dispositions relatives a l'adoption, J.C.P. 1977, L. 45159).

70 On this, see Sorosky, , Baran, and Pannor, , The Adoption Triangle (New York, 1978) 207–214 Google Scholar; Amadio, and Deutsch, , “Open Adoption: Allowing Adopted Children to ‘Stay in Touch’ with Blood Relatives”, (1983–1984) 22 Journal of Family Law 59–89 Google Scholar.

71 For research data on the intervention of natural parents in the methods of raising their children in adopted families whose identity is known to them, see Meezen, , Katz, and Russo, . Adoption without Agencies (New York. 1978) 225–226 Google Scholar.

72 Sec. 12 of the Law which forbids giving up the child for adoption other than through a welfare officer stipulates that “this provision will not apply to the surrender to an adopter who is the spouse of the parent of the adoptee”. It must be assumed that the criminal offence stipulated in sec. 33, of giving the child up for private adoption, will not apply in such a case either, even though the reservation is not mentioned specifically in the section.

73 Family Law Amendment (Maintenance) Law, 1959, sec. 3(b).

74 See sec. 5 of the Names Law, 1956(19 L.S.I. 95). It is possible to change a minor's family name without his being adopted, but for that purpose, special consent must be forthcoming from the court (sec. 13 of the Names Law) in response to the application of both parents, unless “care of the minor”, i.e. guardianship, “is entrusted to only one parent” (sec. 21 of the Names Law). And see, e.g., A & B v. Attorney General (1968) 22(ii) P.D. 169 (the granting of an application for a change of name on the basis of the consent of both parents: usage of her step-father's name would make things easier for the child socially and save her bother and embarrassment, and there is no room for concern over the weakening of the bond between the natural father and the daughter, if the father himself did not express such a concern).

75 This right can be nullified by a will, just as a will may grant the child a right in the inheritance, even if he was not adopted. However, in view of the fact that most people die intestate, recognition of a person's right as a successor on intestacy is of great practical significance.

76 Including the right to maintenance from the estate, which cannot be nullified by a will: Succession Law, 1965, sec. 65(b).

77 Sec. 15(c) of the Family Law Amendment (Maintenance) Law, 1959, stipulates that: “A right to maintenance arising out of affinity ceases…upon the dissolution of a marriage which established the affinity”. The word “dissolution” in this context includes dissolution of a marriage owing to the death of one of the spouses. See Presko v. Metuilla (1955) 19(i) P.D. 513.

78 On the possibility of annulling an adoption order, see below.

79 Sec. 37 of the British Children's Law of 1975 requires (following the recommendations of the Houghton Committee) that the court not grant an adoption order, but issue a guardianship order instead if, inter alia, it appears to the court that the welfare of the child does not tip the scales in favour of adoption. For a critique of this provision, see Bromley's, Family Law (London, 1987) 322–373 Google Scholar. For a detailed analysis of English law on this subject, see Maidment, , “Step-Parents and Step-Children: Legal Relationships in Serial Unions” in Marriage and Cohabitation in Contemporary Societies, Eekelaar, and Katz, , eds., (Toronto, Butterworths, 1980) 420–736 Google Scholar. See also Bisett-Johnson, , “Step-Parent Adoptions in English Law and Canadian Law” in The Child and the Courts, Baxter, and Eberts, , eds., (Toronto and London, 1978) 335–358 Google Scholar; Masson, “Step Parent Adoptions” in Adoption: Essays in Social Policy, Law and Sociology, op. cit. supra n. 38, at 146–160.

80 Cf. Elon J. in A et al. v. State of Israel (1981) 35(iii) P.D. 701, at 711: “There is no greater assurance of the success of the adoption than the existence of a harmony between the two welfares – the welfare of the child and the welfare of the adopters. The one complements the other, and from them both, in the final analysis, the welfare of the adoptee is secured”. The approach which objects to isolating the interest of the child from those of the family as a whole is discussed below.

81 On these considerations, see Amadio and Deutsch, op. cit. supra n. 70, at 70. And for an example from local case-law, see Ezrali v. Attorney General (1966) P.M. 348: when the relationship between the natural father and the child is not so bad, an adoption order in favour of the step-father which permits a relationship with the natural father is issued.

82 Adoption of Children Law, 1981, sec. 11.

83 Sec. 28A of the Law, as added in 1976, (see supra n. 14). The section is entitled “Rights of Bereaved Parents”, and this indicates the background to the addition: to protect parents whose son fell in battle, so that the bonds with the grandchild born from that son will not be severed completely.

84 On this phenomenon, see Englard, op. cit. supra n. 21, at 329–330.

85 A et al. v. Attorney General (1967) 21(ii) P.D. 403.

86 Ibid., at 405, 406. The Court held that the mature age of the applicants was not a paramount consideration, and cf. the decision of the Court of Appeals in the State of California, In RE Adoption of Michelle Lee T. (1975)Google Scholar 44 Cal. App. 3rd 669, 117 Cal. Rptr. 856, in which the Court refused to attribute any significant weight to the mature age of the relatives to whom the child had already become close.

87 As per H. Cohn. J., supra n. 85, at 407.

88 A. v. Labour and Social Affairs Bureau (1985) 39(ii) P.D. 570.

89 Adoption of Children Law, 1981, sec. 13(7).

90 As per Barak J., supra n. 88, at 575.

91 And cf. Kommemi v. Attorney General (1971) 25(ii) P.D. 705, 707, in which the Court said that the objections of grandparents to adoption by a stranger could be upheld if they themselves were willing and able to replace the natural parents.

92 Apparently, this is private adoption which is contrary to sec. 12 of the 1981 Adoption Law, and which may constitute a criminal offence under sec. 33 of the Law. At the same time, while sec. 12 prohibits surrender of the child for adoption other than through a welfare officer (with the exception of the case in which the adopter is a step-parent), sec. 33 of the Law, which establishes the criminal offence, excludes from the ambit of the prohibition the surrender of a child “by virtue of a court order under this Law”. And indeed, one can think of cases in which the court issues an order authorizing an adoption which did not go through a welfare officer, for example, when the preliminary surrender of the child was not “with the intention of adoption”, but rather, of temporary custody. There is still room to argue that surrender that is not intended to cut the child off from his natural family is not surrender “for the purpose of adoption”. Nevertheless, according to sec. 365 of the Penal Law, 1977, a person who surrenders a child, discharging himself of rights and obligations, may also be involved in a criminal offence. This offence does not, however, apply if… “the child was surrendered to a grandparent, uncle, aunt, brother or sister, and surrender was in the interests of the child”. In any case, the fact that an offence may have been committed cannot be the deciding factor as to whether the court ought to issue the adoption order as requested. It is the welfare of the child that prevails: sec. l(b) of the Adoption Law. And see A v. Attorney General (1985)(1) P.M. 441.

93 A et al. v. State of Israel (1977) 31(i) P.D. 673.

94 Ibid., at 674.

95 Aviva Leon, “One Dilemma of Adopting Children: Intra-Family Adoption”, in Sa'ad, Biannual of the Ministry of Welfare for Social Affairs (Sept. 1976) Booklet 5.

96 Supra n. 93, at 677.

97 Ibid. Emphasis added.

98 For a theoretical discussion of the possible conflict between the welfare of the actual child and that of the potential child, see below.

99 For data on this subject, see Shifman, op. cit. supra n. 10, at 7–12.

100 A et al. v. State of Israel, supra n. 80, at 701.

101 Attorney General v. A et al. (1976) 30(ii) P.D. 379.

102 Ibid., at 713 (the psychologist's report) and at 714 (the opinion of Elon J.).

103 Opinion of Ben Porath J., ibid., 715.

104 See also the opinion of Porath J. in the Tel Aviv District Court in A v. Attorney General, supra n. 92. This opinion reflects the approach whereby intra-family adoption is to be avoided unless special evidence concerning the child's welfare is brought, justifying a deviation from this position.

105 On preventing disruptions to the bonds that have formed between the child and the person who fulfils the role of psychological parent, see Goldstein, , Freud, and Solnit, , Beyond the Best Interests of the Child (New York, 1979)Google Scholar.

106 For a comparative survey, see Krause, op. cil. supra n. 1, at 94–95.

107 This is the case in quite a few states in the U.S.A. See Note, “Annulment of Adoption Decrees on Petition of Adoptive Parents” (1983–1984) 22 Journal of Family law 549 Google Scholar.

108 The book Beyond the Best Interests of the Child, op. cit. supra n. 105, is devoted to the development of this thesis.

109 Adoption of Children Law, 1981, sec. 12(b). If, however, the case cannot be delayed and the circumstances so require, the welfare officer is authorized to deviate from this provision: subsec.(c).

110 Sec. 6 of the Law.

111 Sec. 15(a) of the Law. Under sec. 15(b), the provisions of the section also apply to situations in which the welfare officer exercises his authority under sec. 12(c).

112 Sec. 10 of the Law.

113 A et al. v. B et al. (1960) 14 P.D. 1424.

114 Ibid., at 1425.

115 Id.

116 A.B. v. C.D. (1970) P.M. 307, 309, as per Etzioni J.

117 A v. Attorney General, et al. (1973) 27(i) P.D. 190.

118 As per H. Cohn J., ibid., at 196.

119 A. v. Attorney General, supra n. 47, at 150–151.

120 The Civil Procedure Regulations, 1963 have been replaced by the Civil Procedure Regulations, 1984 (K.T., no. 4685, p. 2220). Reg. 227 of 1963 is now reg. 201.

121 See Sussman, , Civil Procedure (Jerusalem, 1988, in Hebrew) 674–678 Google Scholar.

122 See supra n. 119, at 149. The procedural device for annulling adoption is the submission of a special application for annulment and not an appeal of the original order: see A v. Attorney General (1985) 39(i) P.D. 307.

123 California Civil Code 227(b). According to the 1953 version in the Uniform Adoption Act, a similar possibility of annulling an adoption was offered, but this proposal was omitted from the 1969 version. See Note, op. cit. supra n. 107, at 553.

124 For a sharp critique of the laws and cases which allow for annulment of an adoption on grounds of the child's defective health, see Carroll, , “Abrogation of Adoption by Adoptive Parents” (1985) 19 Family Law Quarterly 155, at 171 Google Scholar: “The child…was treated as defective merchandise, returnable if not worthy of the price paid”.

125 Ibid., at 175–177.

126 In Re S [1969] VR 490. On this decision, see Finlay, , Family Law in Australia (Sydney, 1983) 410, para. 1071 Google Scholar.

127 See Goldstein, Freud, and Solnit, op. cit. supra n. 10S, at 33–37.

128 Burr v. Board of County Commissioners of Stark County (1986) 491 NE 2d 1101 56 ALR 4th 357.

129 See the note on “Action for Wrongful Adoption Based on Misrepresentation of Child's Mental or Physical Condition or Parentage”, 56 ALR 4th 375 Google Scholar.

130 See supra n. 116, at 310.

131 id.

132 Cf.: ibid., at 311.

133 This, for example, is the case under Californian law. On this, and on the law in other states in the U.S.A., see Waldington, , Domestic Relations (New York, 1984) 631–637 Google Scholar.

134 Capacity and Guardianship Law, 1962, sec. 16.

135 Adoption of L., 56 N.J. Super, 46, 151 A.2d 453 (1959).

136 See cases of this and other sorts which were discussed in American courts: Clark, , The Law of Domestic Relations in the United States (St. Paul, 1968) 670–671 Google Scholar.