TN 2 (08-20)

PR 03520.041 China

A. Validity of Adoption in China

Date: August 05, 2020

1. Question presented

Can the agency recognize the claimant, to be the adopted child of the number holder (NH), for purposes of entitlement to surviving child benefits under Title II, where the adoption occurred in China under Chinese law?

2. Opinion

For the reasons discussed below, we believe the People’s Republic of China (China) Adoption Registration Certificate, which the agency has authenticated, documents that the claimant is the legally adopted child of the NH under Chinese law as of April xx, 20xx. Accordingly, the agency could recognize the claimant to be the legally adopted child of the NH for purposes of entitlement to child’s insurance benefits under Title II of the Act.

3. Background

The claimant was born on November xx, 20xx. See Birth Certificate. On April xx, 20xx, the Department of Civil Affairs of Guangdong Province entered an adoption registration certificate regarding the claimant. See Adoption Registration Certificate. As relevant here, the certificate also provided:

(1) The claimant’s adoption was in accordance with Article 17-C of the Hague Convention on the Protection of Children and Cooperation in Respect to Intercountry Adoption; and

(2) The claimant was declared adopted by (father) and (mother), both of the United Kingdom; See id. The NH died on January xx, 20xx. On January xx, 20xx, the claimant filed an application for surviving child’s insurance benefits on the NH’s record.

4. Analysis

Federal Law

To be entitled to child survivor’s insurance benefits under the Act, a claimant must show, among other things that she is the “child” of the insured as defined in section 216(e) of the Act. 42 U.S.C. § 402(d)(1).[1] 20 C.F.R. § 404.350. As relevant here, Section 216(e) defines “child” as the “child or legally adopted child of an individual.” 42 U.S.C. § 416(e). In order to determine whether the applicant is the insured’s legally adopted child, the agency applies the adoption laws of the State or foreign country where the adoption took place (not the State’s inheritance laws). 20 C.F.R. § 404.356, POMS GN 00306.155.C. The agency will ask for a copy of the birth certificate made following the adoption, or if that is unavailable, other evidence of the adoption. 20 C.F.R. § 404.733. In cases of foreign adoptions, POMS GN 00307.220.B provides that an adoption decree is sufficient evidence of a legal adoption.[2]

Validity of Adoption Under Chinese Law [3]

The NH’s adoption of the claimant took place in China, thus the agency looks to the laws of China to determine the validity of the adoption. 20 C.F.R. § 404.356 (“We apply the adoption laws of the State or foreign country where the adoption took place . . . to determine whether you are the insured’s legally adopted child.”).

In China, adoption is primarily governed by the PRC Adoption Law, which was first enacted in 1991. [4] As relevant here, foreigners adopt children in China in accordance with this law. Id. Also, the adoption must be examined and approved by the authorities of the adopters’ country of residence. Id. The China Center for Children’s Welfare and Adoption (CCWAA) is the organization that handles foreign adoptions. Id.

Once a foreign adopter has signed an adoption agreement with the person who places the child for adoption, the foreign adoption will then be registered with the civil affairs department at the provincial level. [5] Upon registration of the foreign adoption, the registration authority will issue an adoption registration certificate, and the adoptive relationship is established on the day of registration. Id.

See Adoption Registration Certificate. Here, the adoption registration certificate shows that the NH is the adoptive father and claimant is the adoptee. The adoption registration certificate indicates it was registered with the Department of Civil Affairs of the Guangdong Province on April xx, 20xx. Moreover, the adoption registration certificate indicates that it is in accordance with the Article 17-C of the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption.

The Adoption Registration Certificate therefore confirmed that the parties met the requirements for obtaining a valid adoption under Chinese law. Additionally, the claimant’s adoption was registered in England with a date of entry listed as October xx, 20xx. See Certified Copy of an Entry. Accordingly, the agency could reasonably determine that the claimant is the NH’s legally adopted child under the criteria of the Act, for purposes of entitlement to child’s insurance benefits. [6]

5. Conclusion

We believe the claimant is the legally adopted child of the NH for purposes of entitlement to child’s insurance benefits under Title II of the Act. Therefore, the agency could recognize the claimant to be the legally adopted child of the NH for purposes of entitlement to child’s insurance benefits under Title II of the Act.

Footnotes

[1] The claimant must also show that: (a) she has filed an application for child’s insurance benefits; (b) at the time the application was filed she was unmarried and either under 18 or a full time elementary or secondary student; or she was under a disability which began before she attained the age of 22; and she was dependent on the insured at the time the application was filed. 42 U.S.C. § 402(d)(1)(A)-(C). In this case, the agency has solely asked us to evaluate the validity of the adoption, and whether the claimant could be considered the NH’s legally adopted child. Thus, we have not evaluated the other requirements for entitlement to child’s insurance benefits.

[2] POMS GN 00307.412 provides that the agency accept evidence from the People Republic of China at face value and absent information to the contrary if issued at or near the date of the event. Here, it appears that the adoption certificate was issued at or near the date of the adoption.

[3] Our discussion of China’s adoption law is based on information we received from the Law Library of Congress. See LL File No. 2020-018458 (December 2019) (LOC Report).

[4]LL File No. 2020-018458, at pg. 1.

[5] LL File No. 2020-018458, at pg. 2.

[6] As noted above, the claimant must also establish that she is dependent on the insured in order to be entitled to child’s insurance benefits. See 42 U.S.C. § 402(d)(1)(C). While the agency has not expressly asked us to evaluate dependency, it appears that the claimant will be deemed dependent on the NH because she was legally adopted before the NH became entitled to retirement benefits. 20 C.F.R. § 404.362(a). The Republic of China issued the adoption registration certificate in April 20xx, and the NH became entitled to retirement benefits in October 19xx.