April 1, 2021

Ms. Cony Clarino

Binan Laguna

Dear Ms. Clarino:

This legal opinion seeks to answer your question as to whether or not you can return
Reign Howard B. Clarino to his biological parents, whom your deceased brother Joelfreo Clarino
issued an affidavit acknowledging as his son and allow to use his surname even though they are
not blood related and without judicial declaration of adoption.
The Facts:
Per our discussion and the documents, you have shown, the following are the pertinent
facts.
Howard Reign B. Clarino aka (Reign), was born on August 4, 2009 at Brgy.Binan,
Pagsanjan Laguna. He was under the custody of Joelfreo Clarino (Joelfreo) who died on March
9, 2021 and Wilhelmina Baltazar, who lived as husband and wife for several years without being
united in holy wedlock. Joelreo issued an affidavit dated October 9, 2012 to use his surname as a
father of Reign even though they are not blood related. The biological father of Reign is the
brother of Wilhelmina. In the birth certificate of Reign it appears that his mother is Wilhelmina
however, your brother did not signed in the said birth certificate. When Joelfreo passed away,
Wilhelmina leave their abode and temporary Reign is under your care and custody.
Applicable Law
Simulation of birth is defined under Section 3 (j) of Republic Act 8552 or the Domestic
Adoption Act of 1998 as “the tampering of the civil registry making it appear in the birth records
that a certain child was born to a person who is not his/her biological mother, causing such child
to lose his/her true identity and status.
Jurisprudence
Since there can be no valid adoption without court decree granting the same, a mere
agreement of adoption between the adopters and the parents of the child is not a valid adoption.
Santos-Ynigo v Republic, 95 Rep 244) Nor the fact that the child had been adopted de facto
(ampon) by the alleged adopting parents (Lazatin v Judge Campos, 92 Scra 250).The mere
consent of your children does not automatically constitute adoption.
Legislative Intent
Republic Act 8552, also known as the Domestic Adoption Act of 1998, recognizes that
children should grow up with their biological parents; however, should the efforts of biological
parents to raise their child be insufficient, other members of the extended family may take on the
responsibility of parenthood for the child. It is only when members of the extended family are
not available that adoption by non-relatives is allowed to take place
Analysis and Conclusion
Based on the facts you have provided, it appears that there is a simulation of birth in this
situation not adoption that took place. Simulation of birth is defined under Section 3 (j) of
Republic Act 8552 or the Domestic Adoption Act of 1998 as “the tampering of the civil registry
making it appear in the birth records that a certain child was born to a person who is not his/her
biological mother, causing such child to lose his/her true identity and status. Adoption is a
process wherein a child becomes a legitimate child of the adopter/s. Accordingly , the adopted
child shall be entitled to all the rights of a legitimate child namely: to use the surname of his
mother and father ; to receive support from the parents and ascendants ; and to inherit the estate
of his deceased parents (Article 174, family Code, Section R.A 8552 otherwise known as the
Domestic Adoption Act of 1998). There is no short cuts in adoption, as the adoptive parents must
undergo the appropriate process for the child to become their legitimate child.
The simulation of birth or falsification of the information in the birth certificate to make
it appear that a person is the biological child of the named -parents is prohibited and constitute a
criminal act. This crime is called simulation of birth, which is punishable under Article 347 of
the Revised Penal Code. A person found guilty of the crime may be imprisoned for 6 years and
1 day to 12 years (prison mayor ) and a fine not exceeding P1000.
In this case, your brother Joelfreo and Wilhelmina furnished the wrong information to
the local civil registry to make it appear that Reign is their son based on the Affidavits of Use of
Surname issued by your brother and Wilhelmina. They resorted to short cuts in order to evade
the process of adoption. However, your brother could no longer be held liable for this
considering that he is already dead
Congress provided relief from criminal liability to these would-be parents by enacting the
Simulation of Birth Rectification Act (RA 11222). The government is giving an amnesty from
criminal liability by allowing violators to legally adopt these children and at the same time
correct the simulated birth.
Generally, adoption is a judicial act (Delgado vs. Heirs of Marciana Rustia Vda. De
Damian, et al., GR 103028, Oct. 10, 1997, Ponente: Associate Justice Justo Torres Jr.). Simply
put, only an adoption proceeding that has gone through judicial processes is considered valid
under our jurisdiction. An exception is provided by RA 11222 where administrative adoption is
allowed. However, adoption under this Act is limited only to one where the petitioner(s)
simulated the birth of the child whom they consistently considered as their son or daughter.
As clarified by the Department of Social Welfare and Development (DSWD
Memorandum Circular 16, Series of 2020, excluded from the coverage of RA 11222 are
circumstances not limited to the following:
“1) Rectification or correction of entries i.e., to reflect the name of the biological
parent(s) in the birth certificate. This contemplates a situation where the purpose is only to
rectify but not for the persons who caused the simulation to proceed to adoption; 2)
Administrative adoption by the relatives of the deceased person who simulated the birth of a
child or adult adoptee 3) Administrative adoption by person(s) other than the parent(s) who
simulate d the birth of a child or adult adoptee 4) Administrative adoption of a child by the
purported father only 5) Administrative adoption of a child or person who has a registered
original Certificate of Live Birth.”
Recommendation
Clearly, based on the facts provided you can return Reign to his biological parent anytime
and you are not obliged to take care of the child. The assumed obligation of your brother to is not
extended to you. The parental authority of his biological parent is existing even though they
agreed to the said arrangement. Even assuming that your brother is the adopter of Reign,
considering he died and Reign is still a minor or incapacitated, the parental authority of
biological parent is deemed to have been restored . Adoption is a personal relationship and
there are no collateral relatives by adoption , there shall be no one left to care for minor adopted
child if the adopter passed away, hence, the parental authority of the biological parent should
be deemed to have restored. Much more in your situation, anytime you can return Reign to his
biological parent .The rightful custody of a child is vested to the father and mother as provided
in Article 211 of the Family Code, the father and mother shall jointly exercise parental authority
over the persons of their common children. In case of disagreement the father’s decision shall
prevail , unless there is a judicial order to the contrary.
Again, we find it necessary to mention that this opinion is solely based on the facts you
have narrated and our appreciation of the same. The opinion may vary when the facts are
changed or elaborated.
 We hope that we were able to guide you with our opinion on the matter

Respectfully,

SOLA