MEMO FOR : GPG

FROM : MPR
RE : Position Paper on the Rights of a Foundling to a
DATE : Nationality
June 10, 2015

A. Definition of a “foundling”
A foundling is defined as “an infant that has been abandoned by its
parents and is discovered and cared for by others.1”On the other hand,
Section 3(e) of A.M. No. 02-6-02-SC or the Rules on Adoption define a
foundling as “a deserted or abandoned infant or child whose parents,
guardian or relatives are unknown; or a child committed to an orphanage
or charitable or similar institution with unknown facts of birth and
parentage and registered in the Civil Register as a “foundling.”
Likewise, Section 2 (3) of Republic Act No. 95232 provides:
“Abandoned Child refers to a child who has no
proper parental care or guardianship, or whose
parent(s) have deserted him/her for a period of at
least three (3) continuous months, which includes a
foundling.”
B. Issues

1. Does international law protect a foundling’s right to a nationality?

2. Does a foundling have the right to a nationality under Philippine

law?

C. Discussions

 International Conventions guarantee the right of foundlings to a

nationality
International law recognizes the right to a nationality as a
fundamental human right, including the proscription against the arbitrary

1
1250-1300; Middle English “found” (e) ling. Retrieved from:
http://www.oxforddictionaries.com/us/definition/american_english/foundling?q=Foundling, June 9, 2015.
2
An Act Requiring The Certification of The Department Of Social Welfare And Development (DSWD)
to Declare A “Child Legally Available For Adoption” As A Prerequisite For Adoption Proceedings,
Amending For This Purpose Certain Provisions Of Republic Act No. 8552, Otherwise Known As The
Domestic Adoption Act Of 1998, Republic Act No. 8043, Otherwise Known As The Inter-Country
Adoption Act Of 1995, Presidential Decree No. 603, Otherwise Known As The Child And Youth Welfare
Code, And For Other Purposes.

1
deprivation of nationality and statelessness3. In particular, relevant
international law instruments stringently limit the instances where loss
or deprivation of nationality may result in the statelessness of an
individual (ie., the acquisition of citizenship through fraud or the
commission of acts seriously prejudicial to the interests of the state)4.
As early as the 1930’s, international law recognizes the model that
foundlings should be afforded the protection of the state wherein which
they were found. Article 14 of the 1930 Hague Convention on Certain
Questions Relating to the Conflict of Nationality Laws5 provides:

“Article 14. A child whose parents are both unknown

shall have the nationality of the country of birth. If the child's
parentage is established, its nationality shall be determined
by the rules applicable in cases where the parentage is
known.
A foundling is, until the contrary is proved, presumed to
have been born on the territory of the State in which it was
found.”

Several international conventions particularly afford safeguards for

the protection of foundlings against the arbitrary deprivation of
nationality and statelessness.
Article 15 (1) and (2) of the Universal Declaration of Human
Rights (UDHR)6, respectively, provide that “everyone has a right to a
nationality”, and that “no one shall be arbitrarily deprived of his
nationality nor denied the right to change his nationality.” The UDHR
was proclaimed by the United Nations General Assembly as a common
standard of fundamental human rights to be universally protected7.
In addition, Article 24 (1) and (3) of the International Covenant
on Civil and Political Rights (ICCPR)8, provide that “every child shall
3
Annual Report of the United Nations High Commissioner for Human Rights (Human Rights and
Arbitrary Deprivation of Nationality), December 19, 2013.
4
Ibid.
5
League of Nations Treaty Series Volume 179, 89. Retrieved from:
http://treaties.un.org/pages/LONViewDetails.aspx?src=LON&id=512&lang=en, June 9, 2015.
6
UN General Assembly Resolution 217 A (III), December 10, 1948.
7
The Universal Declaration of Human Rights, Retrieved from:
http://www.ohchr.org/EN/UDHR/Pages/Introduction.aspx, June 8, 2015.
8
UN General Assembly Resolution 2200A (XXI), December 16,1966; Ratified by the Philippines on
October 23, 1986.

2
have, without discrimination as to race, color, sex, language, religion,
national or social origin, property or birth, the right to such measures of
protection as required by his status as a minor, on the part of his family,
society and the State”, and that “every child has the right to acquire a
nationality.”
Moreover, the United Nations Convention on the Rights of the
Child (UNCRC)9 further provides in Articles 7(1) that “a child shall
have the right from birth to a name, the right to acquire a nationality and,
as far as possible, the right to know and be cared for by his or her
parents.” Article 7 (2) of the UNCRC also provides that “State Parties
shall ensure the implementation of these rights in accordance with their
national law and their obligations under relevant international
instruments in this field, in particular where the child would otherwise
be stateless.”
Central to the fulfilment of the child’s right to a nationality, as
provided for in Article 7 (1) of the UNCRC, are safety measures that
will allow otherwise stateless children born in the territory of a State to
acquire a nationality10. The United Nations Convention on the
Reduction of Statelessness (Convention on the Reduction of
Statelessness)11provides special protection for children or foundlings
born in a country’s territory by requiring the country to grant these
foundlings citizenship and its concomitant rights 12. Article 1(1) of the
Convention on the Reduction of Statelessness provides:
“Article 1(1). A Contracting State shall grant its
nationality to a person born in its territory who would
otherwise be stateless. Such nationality shall be granted: (a)
at birth, by operation of law, or (b) upon application being
lodged with the appropriate authority, by or on behalf of the
person concerned, in the manner prescribed by the national
law. Subject to the provisions of paragraph 2 of this Article,
no such application may be rejected.
A Contracting State which provides for the grant of its
nationality in accordance with sub-paragraph (b) of this
9
UN General Assembly Resolution 44/25, November 20, 1989; Ratified by the Philippines on August 21,
1990.
10
Ibid.
11
Adopted by the UN General Assembly on August 30, 1961 and entered into force on December 13,
1975. However, the Philippines is not a signatory to the Convention.
12
Introductory Note of the UN High Commissioner for Refugees on the Convention on the Reduction of
Statelessness (May 2014).

3
 paragraph may also provide for the grants of its nationality
by operation of law at such age and subject to such
conditions as may be prescribed by national law.”
This provision, when read together with Article 2 (1) of the
Convention, according to which “States Parties shall respect and ensure
the rights set forth in the present Convention to each child within their
jurisdiction without discrimination of any kind”, affords a foundling the
right to the nationality of the State on the territory of which he or she
was born, in the absence of evidence to the contrary13.
Thus, States must ensure that there are adequate safeguards to
prevent statelessness and that these are incorporated into a country’s
domestic laws. In addition, States should also carry the burden of
proving that the loss or deprivation of nationality will not result in
statelessness14. In addition, nationality acquired by foundlings may only
be lost if it is proven that the child possesses the nationality of another
State15.
The provisions relating to the protection of foundlings against
statelessness contained in the Convention on the Reduction of
Statelessness is mirrored by the 1997 European Convention on
Nationality (ECN). Article 6(1) (b) of the ECN prescribes the
acquisition of nationality to “foundlings found in its territory who would
otherwise be stateless.” Other International Conventions such as the
1969 American Convention on Human Rights16, the African Charter
on the Rights and Welfare of the Child17, and The Arab Charter on

13
Ibid.
14
Ibid.
15
UNHCR, Guidelines on Statelessness No. 4: Ensuring Every Child's Right to Acquire a Nationality
through Articles 1-4 of the 1961 Convention on the Reduction of Statelessness, HCR/GS/12/04,
December 21, 2012.
16
Article 20 (2) of the American Convention provides that “Every person has the right to the nationality
of the state in whose territory he was born if he does not have the right to any other nationality.”
(Retrieved from: Organization of American States Treaty Series No. 36, United Nations Treaty Series
1144, 123).
17
Article 6 (4) of the African Charter provides that “States Parties to the present Charter shall undertake
to ensure that their Constitutional legislation recognize the principles according to which a child shall
acquire the nationality of the State in the territory of which hehas been born if, at the time of the child's
birth, he is not granted nationality by any other State in accordance with its laws.” (Retrieved from: OAU
Doc. CAB/LEG/24.9/49, 1990)

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Human Rights18, accord broad international recognition amounting to
custom on the protection of a foundling’s right to a nationality.

 Philippine law affords protection to a foundling’s right to a

nationality
Our jurisdiction affords safeguards to the right of foundlings
against statelessness that are complementary to relevant international
instruments. Based on the Doctrine of Parens Patriae19, the State has the
responsibility to stand as an informal caretaker of the rights of children,
or to act as the parent of any child or individual who is in need of
protection. Section 3(2), Article XV of the 1987 Constitution provides
that “[The State shall defend] the right of children to assistance,
including proper care and nutrition, and special protection from all forms
of neglect, abuse, cruelty, exploitation, and other conditions prejudicial
to their development.”
Section 2 of Republic Act No. 7610 or The Special Protection of
Children Against Abuse, Exploitation, and Discrimination Act,
provides:
“xxx
The best interests of children shall be the paramount
consideration in all actions concerning them, whether
undertaken by public or private social welfare
institutions, courts of law, administrative authorities,
and legislative bodies, consistent with the principle
First Call for Children as enunciated in the United
Nations Convention of The Rights of the Child. Every
effort shall be exerted to promote the welfare of
children and enhance their opportunities for a useful
and happy life.”
Article 8 of Presidential Decree No. 603 or the Child and Youth
Welfare Code also says that “In all questions regarding the care,
custody, education and property of the child, his welfare shall be the
paramount consideration.”

18
Article 29 (2) of the Arab Charter provides “States parties shall take such measures as they deem
appropriate, in accordance with their domestic laws on nationality, to allow a child to acquire the mother's
nationality, having due regard, in all cases, to the best interests of the child.” (Adopted by the League of
Arab States on May 22, 2004) Retrieved from
:http://www.icnl.org/research/monitor/las.html, June 9, 2015.

19
Latin for "parent of the nation" (lit., "parent of the fatherland").

5
 Relative to the Doctrine of Parens Patriae is Section 1
(Declaration of Policy) of Republic Act No. 9523 or An Act Requiring
the Certification of the Department of Social Welfare And
Development (DSWD) to Declare a “Child Legally Available For
Adoption” as a Prerequisite for Adoption Proceedings20 which
provide:
“Section 1. Declaration of Policy. — It is hereby
declared the policy of the State that alternative
protection and assistance shall be afforded to every
child who is abandoned, surrendered, or neglected. In
this regard, the State shall extend such assistance in the
most expeditious manner in the interest of full
emotional and social development of the abandoned,
surrendered, or neglected child.”
Once a foundling is adopted, the effects of adoption as to the
legitimacy of the child, parental authority and successional rights are
both guaranteed by the Family Code21 and the Domestic Adoption Act
of 199822.
Thus, our domestic laws are geared towards affording foundlings
every protection that the State can provide against exploitation, abuse
20
This law originated from Senate Bill No. 2391 and House Bill No. 10 was finally passed by the Senate
and the House of Representatives on December 17, 2008. It was signed into law by President Macapagal-
Arroyo on March 12, 2009.
21
Section 189 of the Family Code provides for the following effects of adoption:

1. For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters
and both shall acquire the reciprocal rights and obligations arising from the relationship
of parent and child, including the right of the adopted to use the surname of the adopters;
2. The parental authority of the parents by nature over the adopted shall terminate and be
vested in the adopters, except that if the adopter is the spouse of the parent by nature of
the adopted, parental authority over the adopted shall be exercised jointly by both
spouses; and
3. The adopted shall remain an intestate heir of his parents and other blood relatives.
22
Section 16 to 18, Article V of Republic Act No. 8552 or the Domestic Adoption Act of 1998 provide:

1. Parental Authority. – Except in cases where the biological parent is the spouse of the
adopter, all legal ties between the biological parent(s) and the adoptee shall be severed
and the same shall then be vested on the adopter(s).
2. Legitimacy. – The adoptee shall be considered the legitimate son/daughter of the
adopter(s) for all intents and purposes and as such is entitled to all the rights and
obligations provided by law to legitimate sons/daughters born to them without
discrimination of any kind. To this end, the adoptee is entitled to love, guidance, and
support in keeping with the means of the family.
3. Succession. – In legal and intestate succession, the adopter(s) and the adoptee shall
have reciprocal rights of succession without distinction from legitimate filiation.
However, if the adoptee and his/her biological parent(s) had left a will, the law on
testamentary succession shall govern.

6
and neglect from the time of their birth up and until the time they are
taken in and cared for by the relevant government agencies concerned.
Inasmuch as the Philippines is a signatory to the United Nations
Convention on the Rights of the Child, the government and its officials
are duty bound to comply with its mandates, under the overriding
principle that all actuations of the State should be in the best interest of
the child23. Concomitant with our international obligations under the
United Nations Convention on the Rights of the Child, to which we are a
signatory, the State must ensure that foundlings have a right to a
nationality and protection against statelessness.

D. Conclusions
Based on the numerous international instruments to which the
Philippines is a signatory, it can be prudently concluded that the right of
foundlings to a nationality has reached the status of customary
international law24. This finds support in Section 2, Article II of the
1987 Constitution, which provides that “the Philippines renounces war
as an instrument of national policy, adopts the generally accepted
principles of international law as part of the law of the land and adheres
to the policy of peace, equality, justice, freedom, cooperation and amity
with all nations.”
Although the Philippines is not a signatory to the 1961 Convention
on the Reduction of Statelessness, the tenor of our local statutes all
emphasize the guarantees of protection towards foundlings as wards of
the state and as children in need of special protection25, based on our
obligations under the United Nations Convention on the Rights of the
Child. Thus, our domestic laws should be interpreted in such a way as to
advocate a foundling’s right to a nationality and against the existence of
statelessness.

23
Herbert Cang vs. Court of Appeals, G.R. No. 105308 (September 25, 1998).
24
Customary international law means “a general and consistent practice among States followed by them
from a sense of legal obligation.” Restatement (Third) of Foreign Relations Law of the United States
(1965). Retrieved from the American Law Institute,
https://www.ali.org/index.cfm?fuseaction=publications.ppage&node_id=33, June 9, 2015.
25
Section 2(12) of R.A. 9523 provides that “A Social Case Study Report, or a written report of the result
of an assessment conducted by a licensed social worker as to the social-cultural economic condition,
psychosocial background, current functioning and facts of abandonment or neglect of the child (including
the efforts of the social worker to locate the biological parents of the child)”, must be attached to support
the Petition to declare a child as available for adoption.; http://web0.psa.gov.ph/content/registration-
foundling, June 9, 2015.