What is the responsibility for disclosing the secret of adoption?

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Published: 07/25/2018

Reading time: 5 min

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Maintaining the secrecy of adoption is the legal right of parents who have adopted a child. Disclosure of this secret by third parties leads to a number of legal consequences.

Legislation
The concept of adoption secrecy
Unraveling the mystery
Responsibility
Advantages and disadvantages

Why protect the secret of adoption?

Disclosing confidential information about a child's adoption can cause harm to both the adult and the child. Firstly, this threatens to deteriorate the relationship between the adoptive parent and the adopted child, and secondly, it can cause deep mental trauma to the child.

The adoptive parent, when accepting a child into the family, fully replaces his parent, therefore, as a rule, he tries to ensure that as few people as possible know about this fact.

To ensure that the fact of adoption remains a secret, the legislation provides for a number of measures:

The court hearing in which the issue of adoption is decided is closed;
New data can be entered into the child’s documents, including about parents (if the child is 10 years old at the time of adoption, changes in his personal data are made only with his consent);
There is criminal liability for disclosing secrets.

What it is

Secrecy is the concealment of information, the dissemination of which could cause undesirable consequences. The Family Code of the Russian Federation prohibits persons associated with the legal transfer of a child to adoptive parents from disclosing any information about this fact (Article 139). Legislation guarantees a minor and his adoptive parents the right to maintain the secret of adoption. The child needs to be sure that he is surrounded by close people.

The following information is considered confidential:

time of birth of the baby;
date and place of adoption;
medical information about the child’s health status;
personal data of biological and adoptive parents.

The adoption procedure for minors over 10 years of age is carried out only with their consent.

Who can't adopt a child?

Maintaining secrecy is also not required if the new family does not hide the lack of consanguinity from the children.

Article 139 of the Family Code of the Russian Federation “Secret of child adoption”

Corpus delicti

Disclosure of the secret of adoption is a crime against family and minors and is contained in the relevant chapter of the Criminal Code. Let us consider in more detail the composition of this crime.

An object

The object of the crime refers to those direct relationships or interests that are encroached upon by the criminal act. In the event of disclosure of the secret of adoption, the object is the interests of the family, minors, parents, everyone's right to privacy and family secrets. more information about invasion of privacy and the article under which liability arises.

Subject

Additionally,
the crime of disclosing the secret of adoption is not considered committed if this information was received by the authorities, whose duty is also to maintain the secret. For example, a teacher sent a letter to the guardianship and trusteeship authorities, in which he mentioned the fact of adopting a child from his class. In this case, the teacher is not the subject of an offense, because the information was not disclosed to either the child or third parties.

It is possible to hold accountable under this article both persons who are required by law to keep information about adoption secret (special subject), and ordinary citizens who, under various circumstances, learned about adoption (general subject). In any case, the offender must be at least 16 years old at the time the crime was committed.

Special subjects include:

The judge who participated in the adoption decision;
Court secretary and assistant judge;
Any other court employees who, for any reason, could have access to this information (for example, office workers);
The prosecutor involved in the case;
Other employees of the prosecutor's office who may have seen the court decision or knew about the hearing;
Employees of guardianship and trusteeship authorities;
Civil registry office employees who register the fact of adoption make changes and issue a birth certificate.

Common subjects may include:

Teacher,
A kindergarten teacher,
Relative of the adoptive parents,
Adoptive family neighbor
Any other person who in one way or another became aware of information about adoption.

The degree of responsibility for disclosing the secret of adoption among general and special subjects differs on the subjective side.

Subjective side

For actions to be recognized as a crime, they must be committed with direct intent (you can familiarize yourself with the concept of direct intent in criminal law). That is, when disclosing information, the subject must understand that he is revealing a secret against the will of the adoptive parents. If another person, at the request or with the consent of the adoptive parents, provides such information, these actions do not constitute a crime.

In order to bring to criminal liability persons belonging to special subjects, simple intent is sufficient. At the same time, for persons from among the general subject, a special goal is also necessary: selfish or other base motives (jealousy, anger, etc.).

Objective side

The objective side, that is, actions that directly fall under the crime, is, in particular, information about the fact of adoption to other persons or one person (including the adopted person) in any way (during an oral conversation, in writing, publication on social networks, the media and etc.). The important point is that the information must be disseminated to a person who is not required by law or official duties to keep it secret.

Rules governing the issue

The Family Code developed in our country described in great detail family relationships, as well as actions in the adoption system, in particular, Article 139 fully discloses these relationships, the rights and obligations of the parties and possible liability for non-compliance with the rules.

Article 139 of the Family Code states that the following people do not have the right to advertise the secret of adoption:

The judges who made the verdict and the employees of this court, who are also considered witnesses.
Officials who were directly involved in the registration of adoption.
Medical workers Institutions that faced this case.

The Criminal Code is also directly related to the secrecy of adoption, where there are articles regarding this situation. In particular, Art. 155 The Criminal Code of the Russian Federation will publish people who may be responsible in this case. This includes:

People who, in the course of their professional activities, have encountered the mystery of adoption.
Selfish people who may divulge a secret or for other base reasons.

Such measures are carried out if the adoptive parent wishes not to disclose the secret of adoption. If the adoptive parent does not want to keep the adoption secret, and this is provided for in paragraph 2 of Article 139 of the RF IC, then these protection measures are canceled.

How to prove a crime has been committed

Another secret

Secret information that also affects the personal life of a citizen and is protected by law includes medical confidentiality. The concept of “violation of medical confidentiality” includes disclosure of a diagnosis (especially significant for a person when they find out his HIV-positive status), dissemination of information about mental health, the results of diagnostics, tests, and prescribed treatment. You can read about responsibility for disclosing medical confidentiality in the article https://lexconsult.online/6340-ponyatie-vrachebnoi-tainy-nakazanie-za-ee-narushenie.

The elements of the crime provided for in Article 155 are formal, that is, immediately after the disclosure of information to any person, the crime is already considered completed, for this there is no need to wait for certain consequences to occur.

Proving the fact of disclosure of secrets in practice is quite a difficult task. The situation is especially difficult with proof of the vile intentions of the offender.

First of all, in order for the disclosure of the secret of adoption to be punished by law, it is necessary to find the person who disseminated the information. The involvement of a specific person in a crime can be proven using the testimony of witnesses (the adopted person or strangers to whom the information was communicated) or documentary evidence:

Recording a conversation;
Letter;
SMS message;
Post on social networks, etc.

What information about a child can adoptive parents change?

Adoptive parents can give the child their last and patronymic names, as well as another name. According to modern legislation, they can change the child’s date of birth, but not for more than three months. Also, the adoptive family can change the child’s place of birth in the documents - to do this, you need to come to the registry office, where they will issue a new birth certificate.

From the point of view of the state, such rules are necessary so that the institution of the family fulfills its functions and children can be raised in good relations with their adoptive parents.

Punishment

A court that has determined that the secret of adoption was disclosed by a person contrary to the law may impose the following punishment on the offender:

Fine of up to 80 thousand rubles;
Community service up to 360 hours;
for no more than 1 year;
Arrest up to 4 months.

In addition to the penalties above, the court may prohibit a person from engaging in certain activities or holding certain positions for 3 years or less.

Questions about maintaining and disclosing the secret of adoption are discussed in the following video

Qualifying features

Based on the text of Article 155 of the Criminal Code of the Russian Federation, disclosure of the secret of adoption is any information regarding the fact that certain citizens are not the biological parents of the child, contrary to the will of these citizens.

The main sign of an offense is the disclosure of the fact of adoption to people who are not obliged to keep it secret.

The law motivates the criminal prosecution of persons who revealed this secret as follows: the news can be traumatic for all family members, turn into a psychological shock for the child and prevent the formation of a harmonious microclimate in the social unit.

Arbitrage practice

Today, cases of disclosure of adoption secrecy are rare in Russia. Here is one example of such a case.

Since childhood, the girl Anya has been characterized by increased activity and excitability. At school, the baby was recommended to visit a psychologist, to which her parents agreed. After one of the sessions, the girl returned home in shock. From a psychologist she learned that her parents were not her own.

Later, the school specialist admitted that she really revealed the secret of adoption to Anya, since this, in her opinion, should have helped in treatment. In fact, this information harmed the girl; she had to undergo a long rehabilitation, since at that time she was not yet ready for such information.

The court imposed a fine on the perpetrator of the crime and prohibited her from working in her specialty in schools for 3 years. In addition, Anya’s parents were able to demand small moral compensation from the psychologist in court.

On issues of liability for disclosing the secret of adoption, a lawyer will advise you in the comments to the article

What can the history of legislative development reveal?

It is helpful to be aware of legal developments and may provide greater opportunities for both adopted people seeking information about biological relatives and those seeking information about relatives who were adopted.

Before the revolution, the secret of adoption did not exist. In 1918, the RSFSR Code was published, which completely prohibited adoption. One of the official reasons was the fear that adoption would be for the sake of child labor. In 1926, a decree was issued that restored the possibility of adoption and secured it: “Due to the famine, the number of orphans increased, and the state had a need to reduce costs for boarding schools. I think insufficient funds in the budget were the main reason for the adoption reinstatement. The periodicals of that time also speak about this,” says Natalya Sarchenko. — From 1918 to 1926, a child could be taken into a family, for example, from the street, but there were no documents about this. So those who study pedigrees during this period may not know that their relative was brought into the family in this way.”

In 1943, a decree appeared that said: “To establish that the adoptee, at the request of the adoptive parent, can be given the surname and patronymic of the adoptive parent,” but there was no “secret of adoption” then, says Natalya. It appeared in the Family Code in 1969 and continues to operate to this day.

How to find out about biological parents without going to court?

From 1926 to 1996, decisions on adoption were made not by the courts, but by councils of deputies of the executive commission. This system was administrative, says Sarchenko: “District executive commissions (RICs) considered adoption issues in rural areas, and in cities this was dealt with by public education departments. The issue of adoption was considered on an equal basis with all economic issues. The adoption order was given to the registry office, while the administration kept the materials of the meetings, which after some time were deposited in the archives. It turns out that those who were adopted before 1996 can find out their name before adoption by studying the materials of the REC meetings in the archives for the required period.”

A person who comes to the archive for the first time to look for documents on adoption in the RIC funds or funds of public education departments will need to fill out a form. “In the column “purpose of research” you should not write “search for information about adoption,” it is better to indicate “study of the issue of social and everyday development of the region, province” or “land issue,” says Natalya Sarchenko. “Searching for documents in the archive is contrary to the law on the secret of adoption, so it is better not to attract the attention of archivists with a direct request.”

Having discovered the decree, you can find out the real name and date of birth of the adopted child. The first option for searching for information about relatives is to restore the father’s name from the child’s last and patronymic names, and then request information about him in the archives. The problem is that the repositories may not have information about this person because he may not have done anything to end up in the archival documents. The second option is to take an archival extract with this information and contact the registry office with it, and then go through the court to obtain an adoption certificate.