The Turkish Civil Code, when regulating the adoption relationship, has adopted a method of regulating the adoption of minors by subjecting them to separate conditions for the adoption of adults and those under legal guardianship.
The adoption of minors is regulated under Articles 305-312 of the Turkish Civil Code. Article 305 of the Code, which regulates the general conditions for adoption, stipulates three basic conditions for the adoption of a minor. The first of these conditions is that the adopted child must be cared for and educated by the adopter for a period of one year. It is important to note that this one-year period is the minimum period. In other words, it is not possible to shorten the period or exempt individuals from the period. However, the one-year period may be extended if deemed necessary. Furthermore, this one-year care and education requirement should not be understood as the person(s) wishing to adopt must solely cover the child’s care and education expenses. The purpose here is to ensure that the child is admitted to the family home and cared for personally and without intermediaries. The second of these conditions is that the adoption must be in the best interest of the minor. When determining whether the child is in the best interest of the child, it is necessary to consider whether the prospective adopter can ensure the child’s safety and provide adequate education for their development. Furthermore, if the adopter has other children, ensuring that the interests of these children are not unfairly harmed is another consideration when establishing an adoption relationship.
Furthermore, in Turkish law, it is mandatory for married persons to adopt jointly. Accordingly, the rule of joint adoption requires the consent of both spouses. Furthermore, the marriage must have been at least five years old, or, even if it has not been five years, both of the prospective adoptive parents must be at least thirty years old, and the adopting person(s) must be eighteen years older than the minor being adopted. However, Article 307/2 of the Law provides exceptions to the joint adoption rule. Accordingly, a spouse who can prove that one of the spouses has permanent incapacity to discern, has been unknown for more than two years, or has been separated by court order for more than two years can adopt alone. Another exception to the rule of joint adoption is when one spouse adopts the child of the other. A spouse who meets the conditions of at least two years of marriage or the adoptive spouse being over thirty years of age can adopt the child of the other. Except for these exceptions, it is not possible for married individuals to adopt alone.
In this context, Article 308/2 of the Turkish Civil Code stipulates that the consent of a minor who possesses discernment is also required. For the minor’s consent to be obtained, the minor must possess discernment.
Court of Cassation, 2nd Civil Chamber, Merits No: 2009/16483, Decision No: 2010/19941;
“(…) According to the provisions of the second paragraph of Article 308 of the same law, which states that “a minor who possesses the power of discernment cannot be adopted without his or her consent.”, minors should be heard by the court, and their ability to discern due to their primary school age should be examined and their consent to adoption should be asked. However, the decision to accept the case without taking their statements, despite their attendance at the hearing on May 7, 2008, was found to be contrary to procedure and law.”[2]
Furthermore, the consent of the adopted minor’s parents must also be obtained, except in cases where the minor’s identity or where they have resided for a long time is unknown, or where they have consistently lacked the power of discernment, or where they have failed to adequately fulfill their duty of care towards the minor. It should be noted that the consent given can be withdrawn within the first six weeks after it is recorded in the official report. However, if the consent given is withdrawn within the first six weeks and the minor’s parents consent to the adoption again, the consent given a second time is deemed definitive.
Court of Cassation, 18th Civil Chamber, Merits No: 2013/3312, Decision No: 2013/6445;
“In his petition, the plaintiff’s attorney requested that the consent of the parents be disregarded for the adoption of a minor born on December 27, 2012, who is being housed in institutions. The court accepted the case, which was heard without an adversary.
According to Article 309, paragraph 1, of the Turkish Civil Code, “Adoption requires the consent of the minor’s parents.”It is deemed inappropriate to hear the case without an adversary and render a judgment without considering that, based on the findings of the case, the parents of the child being sought to be adopted are not designated as parties to the case. After ensuring that the parents of the child being adopted are present and constituted as parties, all evidence must be evaluated together.
Therefore, rendering a written judgment without considering the principles explained above is inappropriate. The appeals are therefore valid and therefore accepted…”[3]
Court of Cassation, 18th Civil Chamber, Merits No: 2014/6037, Decision No: 2014/8077;
“From the information and documents in the file, it is understood that a protection order was issued for Eyüp, born on December 27, 2011, on June 14, 2012, and that the case under appeal was filed following this decision. Article 312 of the Turkish Civil Code stipulates, “If a minor is placed in an institution for the purpose of future adoption and one of the parents lacks consent, the court of the minor’s place of residence shall, upon the request of the adopter or the institution acting as an intermediary in the adoption, and as a rule, before the minor’s placement, decide whether this consent will be sought. In other cases, the decision on this matter is made during the adoption proceedings.” Since the child was placed in an institution and the lack of parental consent should be considered within the adoption case, accepting this case, rather than dismissing it, was deemed inappropriate.”[4]
General Assembly of the Court of Cassation Civil Chambers, Merits No: 2017/2045, Decision No: 2021/1154;
“On the other hand, a decision to adopt can only be made after a thorough investigation of all relevant circumstances and conditions, after listening to the adopter and the adopted child, and after consulting with experts if necessary. The investigation should specifically address the personality and health of the adopter and the adopted child, their mutual relationship, their economic situation, the adopter’s educational ability, the reasons that led to the adoption, and the developments in their family and care relationships. If the adopter has descendants, their attitudes and thoughts regarding adoption are also evaluated. In the concrete case, it is understood that little Seher was handed over to the plaintiff … with a pre-adoption temporary care agreement dated 10.12.2010, which is in the file. Based on the temporary care monitoring reports in the file, the photographs submitted by the plaintiff …, and the witness statements, the plaintiff … adopted little Seher with a motherly love and affection, and that an environment was created in which the child could develop physically, mentally, socially, and emotionally in a healthy manner, that there were no negative conditions preventing the plaintiff … from adopting, and that the best interests of the child were in the adoption. It was understood that the child’s adoption was more severe. Furthermore, the report prepared by a child mental health specialist stated that little Seher’s care was undertaken under a temporary care contract when she was 39 days old, that she had positively influenced the baby’s biopsychosocial development, that a secure mother-baby bond had been formed between them, that staying with …, who provided primary care, was necessary for her mental health, that separation from her primary attachment figure was detrimental to her psychological development during this period, and that it was appropriate for the baby to meet the biological mother at the age determined by the expert panel and to conduct this contact at the time recommended by the experts. Therefore, there was no error in dismissing the consolidated case filed by the plaintiff … in the defendant-consolidated case.
During the discussions held at the General Assembly of Civil Chambers, it was determined that Article 311/2 of the Turkish Civil Code (TMK) refers to failure to fulfill the duty of care, not inadequate fulfillment. The biological mother, after securing the support of her family, took actual and legal steps to reclaim her child. The defendant father … learned during the trial that the child was his and registered the child in the civil registry. He also stated that the child was not adopted by someone else. Although it was argued that the defendant father’s lack of consent, that the lack of an emotional bond established between him and the child cannot be considered a failure to adequately fulfill the duty of care, that the child was with the adoptive parent and under the supervision of the institution, that in this case, the defendant father’s duty of care towards the minor cannot be considered as inadequately fulfilled, that the child’s best interests are paramount in adoption, and that the child’s best interests vary depending on the cultural values of the environment in which he lives, that considering the social structure of our country and the child’s future place and interests in society, it would be in the child’s best interests for the child to live together with persons such as the biological mother, father, grandfather, and grandmother, the local court’s decision should be overturned for the reasons explained in the Special Chamber decision, this opinion was not adopted by the majority of the Board for the reasons explained above.
Therefore, considering that the defendant father … did not adequately fulfill his duty of care towards the minor, the court ruled in defiance of the requirement of consent pursuant to Article 311/2 of the Turkish Civil Code (TCC). The court accepted the main case on the grounds that the minor had a best interest in being adopted by the plaintiff … and dismissed the consolidated case. “It is in place.”[5]
[1] This study utilized the following academic article: Şıpka, Ş., & Ergün, E. (2020). TÜRK VE İSVİÇRE HUKUKUNDA EVLAT EDİNME KURUMUNUN MİRAS HUKUKU İLE İLİŞKİSİ. Aurum Sosyal Bilimler Dergisi, 5(1), 23-44.
[2] Court of Cassation, 2nd Civil Chamber, Merits No: 2009/16483, Decision No: 2010/19941.
[3] Court of Cassation, 18th Civil Chamber, Merits No: 2013/3312, Decision No: 2013/6445.
[4] Court of Cassation, 18th Civil Chamber, Merits No: 2014/6037, Decision No: 2014/8077.
[5] General Assembly of the Court of Cassation Civil Chambers, Merits No: 2017/2045, Decision No: 2021/1154.