Onikepo Braithwaite
The Advocate By Onikepo Braithwaite, Email: onikepo.braithwaite@thisdaylive.com

Definition of Adoption
Wikipedia defines Adoption as “a process whereby a person assumes the parenting of another, usually a child, from that person’s biological or legal parent or parents, and, in so doing, permanently transfers all rights and responsibilities, along with filiation, from the biological parent or parents”. The Eastern Nigeria Adoption Act 1965, was the first adoption legislation that was promulgated in Nigeria. It is applicable in the South East States and Bayelsa State. The Adoption Law 1968 (ALLS), was later enacted for Lagos (applicable in Lagos State). The Northern States do not seem to have enacted any formal Adoption Laws, but it has always been the normal practice, for Northerners to bring up non-biological children (sometimes relatives) as their own, along with their biological children, so that you do not even know the difference.

As a child, I recall that formal adoption was not a common occurrence. I remember when I was about 11 years old, my friend confided in me that she had been adopted by her Parents. She swore me to secrecy, because her Parents kept the fact that she had been adopted, a deep secret. It could be that, out of ignorance, her Parents were foolishly ashamed of their infertility (as if they created themselves!), and did not want to be regarded as ‘less than whole’ by society, so they preferred to pretend, and passed her off as their biological child, to avoid any stigma. Down South, people also seemed to be against adoption for so many ridiculous reasons like, “oh you don’t know where the child comes from, the child’s biological family may have madness or epilepsy running in their family, the child could be a witch!” and so on.

Thankfully, today, that narrative has changed. Though people say some women still disappear for long periods of time, after which they show up with a baby they claim to have given birth to biologically, when in truth the child was obtained through other means like adoption and surrogacy, adoption is now quite a common occurrence. Whether the change of mindset has been caused by expediency, as there seems to be more cases of infertility today than in the past, or whether it is because we are now living in the nuclear age, where even procedures like surrogacy (having another person carry the pregnancy), are not a big deal, it is a welcome change. There are so many children out there that need to be loved, and there so many prospective parents willing to shower this love on them; a perfect combination, as far as I’m concerned. We now even find Parents who have biological children of their own, adopting more children.

Child Rights Act 2003
In Nigeria, the Child Rights Act 2003 (CRA) governs the issue of adoption of children. About 25 States have domesticated the CRA, to make it effective in their States. Those that are yet to domesticate it, are the Northern States, though Kaduna has made some moves to enact it.

Curiously, though it seems that though non-Nigerians are not allowed to adopt in Nigeria (Section 131(1)(b), (c), (d) and 145(1) of the CRA), Section 7 of the ALLS seems to contradict the CRA, providing that in the case of an adoption application made in Lagos by a non-Nigerian citizen or a joint application where one of the applicants is non-Nigerian, the Court shall postpone the determination of such application for at least six months and an interim order will be made in respect of that period.

Does that mean that the situation in which we had the famous American actress, Angelina Jolie, adopt children from Cambodia, Ethiopia and Namibia, does not arise in Nigeria? Because if there is a contradiction between a Federal and a State Law, it seems that the Federal legislation takes precedence. What a pity! By virtue of their adoption, Angelina Jolie’s children are certainly living better lives than they would have, in orphanages in their countries, and have been given the opportunity to perhaps, have brighter futures. Here, with the killing of so many by the Boko Haram Terrorists in the Northern part of the country, many children would have become orphans; and they are rotting away, suffering and malnourished in the IDP camps. Would it not be a good thing, if such children also got the chance to be adopted by foreigners or others who can look after them better? Unfortunately, Section 144 of the CRA restricts even Inter-State adoption subject to Section 145 of the Act which requires the Minister’s licence for Inter-State adoptions, with a penalty of up to 15 years imprisonment for contravening the law, talk less of Inter-Country adoption. The reason for this, could be to checkmate child trafficking. Nigeria is also not a signatory to the Hague Convention on the Protection of Children and Co-operation in Respect of Inter Country Adoption, which has as one its goals, the easier facilitation of Inter Country Adoption for signatory States.

Who Can Adopt and be Adopted
Section 129 of the CRA provides for persons who may adopt children in Nigeria, that is, a married couple of at least 25 years of age, a married person with the permission of the spouse, and a single person of at least 35 years of age (the child must be the same sex as the Adopter). Section 3(2) of the ALLS, precludes a single man from adopting a female child, though it does not preclude a female from adopting a male child. Obviously, in all cases, the Adopter must be properly investigated and adjudged to be a suitable, fit and proper person, to raise a child.

A child may be adopted even if he/she is with the Parents. However, the consent of his/her Parents is required, or in the case of an orphan with a Guardian, the consent of the Guardian is required. An abandoned child, or one that is neglected or persistently abused or maltreated, may also be adopted (Section 128 CRA). The ALLS permits residents of Lagos State to adopt children within the State up to the age of 17 years. The age limits may vary from State to State.

Adoption Process
The first step in the adoption process, is to visit an accredited Orphanage. For residents of Lagos, there are several Orphanages like the Motherless Babies Home in Victoria Island and Lekki Phase 1, Little Saints on Ikorodu Road, SOS Village and so on. Section 126 of the CRA, provides for the process of application for adoption of a child, which includes an application to the Court in a prescribed manner, with supporting documentation, investigation of the Adopters by designated Government Officials on the order of the Court, Interview of the Adopters, Visiting their places of work, interviewing their friends and relatives, counselling sessions if the Adopters are found to be suitable. Adopters then obtain temporary custody of the child they wish to adopt for a minimum period of 3 consecutive months prior to the date of the adoption order (Section 3(1)(b) of the ALLS). It is only after this that the Court will give the final decision as to whether or not to grant the application. Sections 149 & 150 of the CRA provide for Family Court to hear and determine matters relating to children, like adoption, on two levels, that is, the Magistrate Court and the High Court.

Section 135 of the CRA prolongs the adoption process, by giving the Court the right to make only an interim order giving custody of a child to an Applicant/Adopter for a period not exceeding 2 years, during which certain conditions must be met, like the child being under the supervision of a Development Officer appointed by the Minister or not being able to travel outside the jurisdiction with the child without permission.

Section 147 of the CRA does not permit an Adopter or a natural child of an Adopter to marry an adopted child; violation of this provision invites up to 14 years imprisonment, while Section 22(2) of the ALLS provides for 5 years imprisonment for this offence. The law is silent as to whether if for example the wife adopted a daughter, the husband would be guilty of an offence if he subsequently, marries the adopted daughter. Probably not. The case of celebrity American Actors, Woody Allen and Mia Farrow comes to mind. They had a 12 year relationship, but were never married. They however, co-adopted two children and had one biological child together. Soon Yi is the adopted daughter of Mia Farrow and her former husband, Andre Previn. Allen started an affair with Soon Yi and subsequently married her. He certainly did not go to jail for marrying Soon Yi, who is about 35 years his junior. I guess it is like marrying your step-daughter, which I do not believe is a crime.

Black Market
Many people seeking to have children, find the adoption laws and process cumbersome, and therefore, resort to ‘alternative methods’ to obtain babies. There are several ‘baby factories’ in Nigeria, especially in the Southern parts, who mask as maternity homes, homes for pregnant teenagers or unwed mothers, orphanages and the like, and specialise in the ‘black market’ trade of selling babies to those who can afford to pay for a child, instead of going through the rigours of legal adoption. Some also find it more cost effective, to buy a child on the black market, than to go through the process of IVF, other expensive fertility treatments, and alternatives likes surrogacy.

The fact of the matter is that, cumbersome or not, there must be a sound procedure or process that must be followed in the case of child adoption, to ensure that innocent, helpless children, do not fall into the wrong hands.