Can Foreigners Adopt Children in Turkey? The International Adoption Process

The adoption of a child in Turkey by foreign nationals is possible provided that the conditions stipulated in Turkish law and the rules of private international law are met. However, adoption proceedings containing a foreign element are not evaluated solely according to the provisions of the Turkish Civil Code. Depending on the nature of the dispute, Law No. 5718 on Private International Law and Procedural Law (MÖHUK), Law No. 4721 the Turkish Civil Code (TMK), the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption to which Turkey is a party, and relevant administrative regulations are considered collectively.

The administrative phase of adoption proceedings in Turkey is carried out by the relevant units of the Ministry of Family and Social Services. The decision of the competent court is crucial for the establishment of the adoption relationship pursuant to Turkish law.

The procedure to be applied when foreigners adopt a child from Turkey may vary depending on the habitual residence and citizenship of the adopter, the legal status of the child to be adopted, and whether the respective states are parties to international conventions. Therefore, it should not be assumed that the same procedure will apply to every application.

Legal Bases of International Adoption

The 1993 Hague Convention on Intercountry Adoption

The Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption aims to protect the best interests of the child in intercountry adoptions where the convention applies, and to ensure cooperation between states.

Where the Convention is applicable, official cooperation is conducted between the competent authorities of the state of origin and the receiving state. Assessments are made as to whether the child is adoptable, whether the prospective adoptive parents are eligible, and whether the transaction is in the best interests of the child.

The fundamental principles of the Convention are as follows:

• Best interests of the child: Decisions in the adoption process must be made by taking into account the safety, development, and long-term welfare of the child.
• Principle of subsidiarity: Intercountry adoption should not be pursued unless the possibility of placing the child in a suitable and permanent family environment within their own country has been evaluated.
• Cooperation between central authorities: During the processes in which the Convention is applied, the central authorities of the respective states shall perform the duties specified in the Convention.
• Prohibition of unjust enrichment: The provision of material benefits outside the purpose of adoption proceedings must be prevented.

Whether the Hague Convention applies must be determined not solely based on the applicant's citizenship, but by taking into consideration the habitual residences of the child and the applicant, as well as the applicability of the Convention to the specific case.

Article 18 of the Law No. 5718 on Private International and Procedural Law (MÖHUK)

Article 18 of MÖHUK governs the law applicable to adoption proceedings. Pursuant to this article, the capacity and conditions for adoption are subject to the national law of each party at the time of adoption.

Therefore, in an adoption with a foreign element, alongside the national law of the adoptive parent, the national law of the adoptee must also be examined. Depending on the specifics of the case, an impediment to adoption under the national law of either party may prevent the establishment of the adoption relationship.

The fundamental distinctions under Article 18 of MÖHUK are as follows:

• Capacity and conditions: The national laws of the parties are evaluated separately.
• Spouse's consent: Regarding the consent of the other spouse for adoption or being adopted, the national laws of both spouses shall apply jointly.
• Effects of adoption: The consequences of adoption shall be determined in accordance with the connecting rule set forth in the third paragraph of the article.

Determining the content of the applicable foreign law may require, when necessary, the examination of foreign legislation and documents issued by competent authorities.

Substantive Conditions for Adoption under Turkish Law

One-Year Care and Education Requirement

Pursuant to TMK art. 305, the adoption of a minor is subject to the condition that the minor has been cared for and educated by the adoptive parent for at least one year. In addition, the adoption must in all cases be in the best interests of the minor, and the interests of the adoptive parent's other children must not be impaired in a manner contrary to equity.

The care process prior to adoption shall be conducted within the framework of relevant legislation and under the supervision of competent administrative authorities. How the one-year care requirement will be applied in a specific international adoption proceeding must be determined by evaluating the relevant legislation and the provisions of any applicable international conventions together.

Age and Marriage Requirements

TMK art. 306 et seq. regulate the conditions regarding joint or single adoption.

• Joint adoption: As a rule, married persons may adopt jointly. Spouses must have been married for at least five years or both must have attained the age of thirty.
• Adoption of a stepchild: Pursuant to Article 306 of the TMK, the conditions of being married for at least two years or the adopting spouse having completed the age of thirty are evaluated.
• Individual adoption: Pursuant to Article 307 of the TMK, an unmarried person must have completed the age of thirty.
• Age difference: Pursuant to Article 308 of the TMK, there must be an age difference of at least eighteen years between the adoptive parent and the adopted person.

When evaluating these conditions in cases involving foreign elements, the foreign law that must be applied pursuant to Article 18 of the MÖHUK must also be examined.

Consent of the Child and Biological Parents

Pursuant to Article 308 of the TMK, a minor with the capacity to distinguish right from wrong cannot be adopted without their consent. If the minor is under guardianship, the permission of the guardianship authorities prescribed by law must also be evaluated.

Pursuant to Article 309 of the TMK, the consent of the minor's biological parents is required as a rule. The obtaining of consent is carried out in accordance with the procedure specified in the law.

Articles 311 and 312 of the TMK contain provisions regarding the dispensation of the mother's or father's consent under certain conditions or the replacement of consent by a court decision. The application of these exceptions depends on the circumstances of the specific case and the fulfillment of the conditions set forth in the law.

Application Procedures in International Adoption

If the Applicant's Habitual Residence is Abroad and the Hague Convention is Applicable

In cases where the habitual residence of the applicants is abroad and the Hague Convention is applicable, the process proceeds within the framework of official cooperation conducted between the central authorities of the relevant states.

1. The applicants shall apply to the competent central authority in the State of their habitual residence or to a competent body authorized by legislation.
2. The suitability of the applicants for adoption, their social circumstances, and their parenting capacities are assessed by the relevant authorities.
3. The file is transmitted to the competent central authority in Turkey in accordance with the procedure prescribed by the Convention.
4. An assessment is made regarding the adoptability of the child, the situation of the applicants, and whether the placement is in the best interests of the child.
5. Upon fulfillment of the conditions stipulated by the Convention and the required regulatory approvals, the process continues through the relevant administrative and judicial stages.

Directly visiting a childcare institution to select a child or entering into a private agreement with the biological family does not substitute for the official adoption procedure.

Applicants Having Their Habitual Residence in Turkey

The application pathway for foreigners residing in Turkey is determined not solely by their possession of a residence permit, but also by their habitual residence, nationalities, the legal status of the child, and the applicability of relevant international regulations.

In order to determine the administrative procedure to be followed for the application, the official statements of the Ministry of Family and Social Services regarding adoption services and the guidance of the relevant provincial directorate must be taken into consideration.

Depending on the nature of the specific case, foreign applicants may be required to submit identity and civil status documents, health reports, documents evidencing financial status, criminal record certificates, and documents demonstrating eligibility to adopt under their national law. The required documents and their legalization procedures may vary depending on the type of application.

Cases Where the Hague Convention Does Not Apply

In a case where the Hague Convention does not apply, the procedure to be followed cannot be determined automatically solely based on whether the applicant's country is a party to the Convention. Habitual residence, applicable law, relevant bilateral or multilateral treaties, and mandatory provisions of Turkish law must be evaluated together.

Therefore, it should not be concluded that a reciprocity requirement will invariably be sought or that the same document legalization procedure will apply to every application in non-contractual matters.

Competent and Authorized Court

Competent Court

In adoption lawsuits, the competent court is the Family Court pursuant to Law No. 4787 on the Establishment, Duties, and Trial Procedures of Family Courts. In locations where a Family Court does not exist, the Civil Court of First Instance acts as the family court in accordance with the procedure prescribed by law.

Jurisdiction (Authorized Court)

Pursuant to Article 315 of the TMK, the adoption decree is issued by the court of the place of residence of the adoptive parent; in cases where spouses adopt jointly, it is issued by the court of the place of residence of either spouse.

In cases with foreign elements, international jurisdiction must be evaluated separately. It should not be assumed that Article 41 of the MÖHUK constitutes a general jurisdiction rule for foreign applicants; this article governs disputes concerning the personal status of Turkish citizens. In the specific case, the international jurisdiction of Turkish courts and venue must be determined within the framework of applicable statutory provisions.

Court Review

Pursuant to Article 316 of the TMK, the judge shall investigate the conditions of adoption and the best interests of the child. During the review, the parties' personalities, health conditions, economic circumstances, relationships, the interests of other children if any, and relevant social investigation reports may be taken into consideration.

In files involving foreign elements, whether the capacity and conditions for adoption have been met according to the national laws of the parties is also evaluated within the framework of Article 18 of the MÖHUK.

Differences Between National and International Adoption

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Court of Cassation Decisions and Legal Evaluation

Yargıtay 2nd Civil Chamber, E. 2022/10237, K. 2023/2184, 04.05.2023

In the decision of the 2nd Civil Chamber of the Yargıtay dated May 4, 2023, numbered E. 2022/10237 and K. 2023/2184, it was addressed that the national laws of the parties must be evaluated together in requests for foreign-element adoption.

The decision concerns the application of Article 18 of the MÖHUK regarding adoption capacity and conditions. The possibility of adoption for one of the parties is not sufficient on its own in cases where the necessary conditions are not met in the national law of the other party.

Without examining the full text of the decision and the details of the specific case, it should not be concluded that the evaluations in the decision will be applied identically to all types of international adoptions.

Yargıtay 2nd Civil Chamber, E. 2021/5783, K. 2022/2231, 09.03.2022

The decision of the 2nd Civil Chamber of the Yargıtay dated March 9, 2022, numbered E. 2021/5783 and K. 2022/2231, relates to the request for the recognition and enforcement of an adoption decree rendered in a foreign country.

In the dispute, an evaluation regarding violation of public policy was made on the grounds that the one-year care and upbringing requirement under Article 305 of the Turkish Civil Code was not fulfilled in the adoption realized according to foreign law. The Yargıtay reversed the previous decision on the grounds that this deficiency did not constitute a clear violation of Turkish public policy on its own in the specific case.

This decision demonstrates that the public policy review in the recognition and enforcement of foreign court judgments cannot be reduced to an automatic comparison. However, this decision does not mean that all foreign adoption decisions will be automatically recognized in Turkey. Each decision must be examined within the framework of the conditions in the MÖHUK and the characteristics of the specific case.

Legal Consequences of Adoption

Civil Registry Records and Surname

Upon the issuance of the adoption decree, the legal consequences specified in the law shall arise. Article 314 of the TMK regulates the consequences of adoption regarding parental rights and obligations, surname, and civil registry records.

In procedures concerning civil registry records, the current text of Law No. 4721 and subsequent amendments must serve as the basis. In particular, the applicability of the provisions amended by Law No. 7531 must be separately checked with respect to the specific case.

Right of Inheritance

Pursuant to Article 314 of the TMK, the adoptee becomes the heir of the adopter. Nevertheless, in a case with foreign elements, Article 18/3 of the MÖHUK and the relevant inheritance law rules must be evaluated together regarding the provisions of inheritance and adoption.

Acquisition of Turkish Citizenship

Pursuant to Article 17 of the Turkish Citizenship Law No. 5901, a minor adopted by a Turkish citizen may acquire Turkish citizenship as of the date of the adoption decision, provided that there is no obstacle in terms of national security and public order.

This provision should not be construed as meaning that citizenship will be acquired automatically without any investigation and in every case. The status regarding the foreign state citizenship of a Turkish child adopted by a foreign national shall be determined in accordance with the legislation of the relevant foreign state.

Frequently Asked Questions

Can an unmarried foreign national adopt a child alone in Turkey?

Under Turkish law, pursuant to Article 307 of the TMK, a person who has completed the age of thirty and meets other conditions may adopt a child alone. In cases with foreign elements, additional conditions arising from the person's national law and applicable international regulations must also be examined.

How long does the adoption process for foreigners in Turkey take?

The duration varies depending on the type of application, preparation of documents, cooperation between central authorities, the legal status of the child, and the matching and court stages. Since there is no fixed and verified completion period applicable to every application, a definitive timeframe should not be guaranteed.

Can a foreign couple directly select a child from a childcare institution?

The adoption process must be carried out in compliance with the official application, evaluation, and matching procedures stipulated by the relevant legislation. Applying directly to a childcare institution or making a private agreement with the biological family does not replace the adoption procedure conducted by the competent authorities.

Is adoption possible without the consent of the biological parents?

Pursuant to Article 309 of the TMK, the consent of the biological mother and father is required as a rule. However, if the conditions specified in Articles 311 and 312 are met, dispensing with consent or replacing it with a court decision may come into question. These exceptions are evaluated based on the circumstances of the specific case.

Does an adoption decision rendered in a foreign country automatically become valid in Turkey?

The legal effect of a foreign decision in Turkey may require the examination of recognition or enforcement conditions, depending on the nature of the decision and the requested outcome. The necessary procedure must be determined in accordance with the MÖHUK and applicable international conventions.

Can a foreign national living in Turkey with a residence permit apply directly?

The application procedure is not determined solely by holding a residence permit. The application procedure must be ascertained from the competent administrative authority by taking into consideration the individual's habitual residence, nationality, the status of the child to be adopted, and relevant conventions.

Conclusion

Although it is legally possible for foreign nationals to adopt a child in Turkey, the applicable law and administrative procedures are not the same in every case. The provisions of the TMK, the conflict of laws rules of the MÖHUK, applicable international conventions, and the procedures of the competent authorities must be examined together.

It is particularly important to correctly determine the conditions arising from the national laws of the parties, the best interests of the child, the required consents, and the legal consequences of the court decision. The recognition or enforcement of adoption decisions rendered in a foreign country in Turkey must also be evaluated separately within the framework of the nature of the decision and the applicable legislation.

Author Information

Atty. Batın Yılmaz
Istanbul Bar Association Bar Registry No: 77008

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This content has been prepared for general legal informational purposes; it does not constitute a legal opinion, a guarantee of outcome, or guidance regarding the preference of a specific service with respect to a specific case. Each case must be evaluated within the framework of its own circumstances and current legislation.

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Contact Information

Av. Batın Yılmaz Law Firm
Yakuplu Mahallesi, Hürriyet Bulvarı, Skyport Residence No: 1/133, Beylikdüzü / İstanbul
Telephone: +90 532 669 34 90
E-mail: info@batinyilmaz.av.tr
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Official and supplementary sources:

• Ministry of Family and Social Services – Adoption Service
• Hague Convention – Table of Contracting States
• Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption – Text
• Court of Cassation 2nd Civil Chamber, E. 2021/5783, K. 2022/2231 – Text of the decision
• Court of Cassation 2nd Civil Chamber, E. 2022/10237, K. 2023/2184 – Citation of the decision