(June 26, 2019) On May 29, 2019, Russian President Vladimir Putin signed into law a bill that allows courts to use discretion in approving adoption orders concerning children who already live with their prospective adoptive parents if one of the parents is suffering from certain diseases. (Federal Law No. 115 of May 29, 2019, on Amending Article 127 of the Family Code of the Russian Federation, Pravo official legal information portal (in Russian).)
The Law was passed to execute a Constitutional Court decision issued on June 20, 2018. (Putin Has Allowed People with HIV to Adopt Children, PRAVO (May 30, 2019) (in Russian).) The case concerned a couple who wished to challenge a provision of the Family Code. (Maxim Varaksin, Constitutional Court Allows Woman with HIV to Adopt a Child, PRAVO (June 21, 2018) (in Russian). Article 127 of the Code made it illegal for people suffering from illnesses included in the government-approved List of Illnesses to adopt a child, establish guardianship, or provide foster care. (Government of the Russian Federation Regulation No. 117 of Feb. 14, 2013 on Approving the List of Illnesses Preventing a Sick Individual from Adoption, Guardianship, and Providing Foster Care, Consultant.ru website (in Russian).)
The wife of the couple in question was infected with HIV and hepatitis C at a hospital after a miscarriage. (New Law in Russia Ends Ban on HIV, Hep-C Parents Adopting Children, RT NEWS (May 30, 2019).) The couple successfully became parents via surrogacy, but article 127 of the Family Code prevented them from adopting their child. The Court ruled it impermissible to deny an individual infected with HIV or hepatitis C the ability to adopt a child who shares an established family relationship with the adopter and lives with the adopter, as long as the adoption is in the child’s best interest. (Constitutional Court of the Russian Federation, Ruling No. 25-P of June 20, 2018, Constitutional Court website (in Russian).)
The Court cited the UN Convention on the Rights of the Child, which states that in order for children to be able to harmoniously and fully develop their identities, they need to grow up in a family environment surrounded by happiness, love, and understanding. (Id.; Convention on the Rights of the Child preamble, Nov. 20, 1989, 1577 U.N.T.S. 3.) Because Russia signed and ratified this treaty, the Court reasoned that Russia must take appropriate measures to exercise the rights of children. (Ruling No. 25-P § 2.) Following the 2018 Constitutional Court decision, which specifically stated the unconstitutionality of the adoption ban for HIV and hepatitis C-infected individuals, these two diseases were removed from the government’s List of Illnesses. Because local authorities continued to exclude HIV-infected people from the adoption process, however, in May 2019, a federal district court in the northeastern region of Russia accepted a case to review the legality of such a decision, and repealed as illegal the decision of a local guardianship board, which had prohibited a woman with HIV from establishing guardianship over her orphaned nephew, who had lived with this woman since his birth. (Nefteyugansk District Court, Case No. 2a-1912/2019, Russian Federation Automated Justice Portal (in Russian).)
The newly added amendment to the Family Code now allows the courts to permit in limited circumstances adoptions for even those people diagnosed with other serious listed illnesses, such as tuberculosis, malignant tumors, substance abuse, psychiatric disorders, and varied forms of disability.
Along with with these health conditions, the new Law removes what it terms “indiscriminate impediments” to adoption by adopters whose income is below the poverty line or who have not completed the training for adopting individuals required by article 127 of the Family Code. Courts may now deviate from the ban and grant adoption to a wider group of people; however, only those children who live with these individuals due to previously established family relations are subject to adoption under the new rules. (Federal Law No. 115, art. 2.) Observers conclude that, even though more individuals are able to apply for adoption now, the Law continues to prohibit poor or disease-infected individuals from initiating open adoption proceedings, and leaves the adoption process at the discretion of a judge. (Stephanie Sundier, Putin Signs Bill Enabling Some HIV-Positive Individuals to Adopt, JURIST (May 31, 2019).)
Prepared by Tim Velenchuk, Law Library intern, under the supervision of Peter Roudik, Director of Legal Research.