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1 The Multiple Meanings of Adoption
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1 The Multiple Meanings of Adoption How many ancient myths begin with the rescue of an abandoned child! —Milan Kundera, The Unbearable Lightness of Being1 Adoption covers situations that have varied greatly from one culture and period to another. They range from the transfer of political power (during the Roman Empire) to the sharing of economic resources among neighbors (notarial adoption in the Middle Ages), to the passing on of personal property (the Napoleonic Code Civil of 1804), to an effort at national reconstruction (the adoption of orphaned minors after World War I), to the celebration of bonds of marriage or friendship (notably in the homosexual community), and, since the 1960s, to the establishment of a family (both through the priority given to adoption of young infants and, more recently, through the growth of intercountry adoptions). Over time, these uses of adoption have settled into more or less institutionalized forms, some of which are still expressed in statute law and in discourse on adoption. Reviewing them here will thus enlighten us not only about these forms of adoption but also about our relationship to the past.2 This chapter will therefore present a genealogy of adoption in Europe and the Mediterranean, and in light of it. I will then describe current practices and regulations in France and abroad. Adoption Down through the Ages Building a Dynasty The major Mediterranean civilizations provide several legendary examples of adoptive practice—Moses by the pharaoh’s daughter (Exodus 2:10), Esther by Mordecai (Esther 2:7), Oedipus by Polybus (in Sophocles ’s Oedipus the King). And yet adoption was not widespread—it was even fairly rare in Israel, insofar as marriage sufficed to integrate an 2 Chapter 1 outsider into the family line.3 When it comes to Athenian democracy, we know of two main types of adoption. An inter vivos form of adoption (eispoiesis) enabled a childless Athenian to choose a son by introducing him into civic and religious circles (a posthumous version, requiring the consent of peers, was also possible at the initiative of the adopted child or his birth father). Evidence of this inter vivos adoption dates back to the first half of the fourth century bce, notably appearing in the legal orations of Isaeus and Demosthenes. The second kind of adoption was called testamentary (diatheke) and was allegedly advocated by Solon. Unlike adoption inter vivos, it was based on written law and enabled a childless citizen to designate his legatee as a son. Upon the death of the father, the legatee of the will had to file a suit “in petition of heredity” and could not be introduced into his father’s circles until the will was validated.4 In both cases, adoption was designed to forestall dynastic extinction. In Rome, this genealogical function would also acquire a political role—namely, transmitting the paterfamilias status required to hold a public office, beginning with the office of emperor (Augustus adopted by Julius, Tiberius by Augustus, Nero by Claude, and so on),5 and also adding the wealth of the adopted person to the lineage. Adoption was part of a culture of gift giving typical of the era.6 Adoptions were usually carried out within the context of the wider family circle.7 They were done either by arrogation (when a sui juris adult, that is to say a paterfamilias with his own sons, is adopted by another adult, and therefore becomes alieni juris, i.e., subject to the authority of another, having lost his full legal capacity) or by adoption strictly speaking (when the adoptee is alieni juris, thus passes from one paternal authority—patria potestas—to another). The adoption might be plena (or “full,” when the adopter was already a relative) or minus plena (when the adopter was unrelated). Roman adoption did not follow generational order, because the adoptee might well be older than the adopter. The spread of Christianity, as reflected in the sixth-century Code of Justinian, marginalized adoption. The family unit was built around marriage , and filiation was supposed to reflect the truth of natural procreation . Since Christian churches were able to grow, in part, by accumulating capital by taking the property of children without families, adoption soon began to look like a dangerous institution.8 Its partial disappearance from Roman law and old French law can also be explained by the way the Church Fathers appropriated the vocabulary of adoption: dynastic adoption became secondary with respect to a primary form, namely, the “divine adoption” in which...