Importance and Significance of Adoption in the Decree of 10 April 1937

Abstract

The present paper addresses the importance and significance of the Decree of 10 April 1937, which derogated all the provisions in Chapter V, of Title VII and of Book I of the Spanish Civil Code of 1889 relative to the adoption.

The purpose of this paper will be to analyze the exegesis, normativity, repercussion and significance of this Decree in relation to adoption. In order to do this, we will avoid any type of «precondition» that could bias our research work, with the intention that the latter is as complete and reliable as possible, and conformed to the reality of the Decree when it was passed.

To that end, along with the meritorious although partial analysis that Germán GAMBON ALIX did in 1960 (this regulation had been condemned and ostracized by both sides), we have studied the anarchist and pro-infantia ideology of the time, through the figures of Mr. Juan GARCIA OLIVER as the promoter of the Decree with Mr. Eduardo ORTEGA Y GASSET (Attorney General of the Republic and older brother of the philosopher José ORTEGA Y GASSET) and with Mr. Mariano SANCHEZ-ROCA, as Subsecretary of the Ministry of Justice, together with the doctrinal contributions of the eminent civil lawyers Mr. Demófilo DE BUEN LOZANO, Mr. Gabriel BONILLA MARÍN, Mr. Rafael de PINA MILAN and Mr. Felipe SANCHEZ-ROMAN Y GALLIFA.

In addition, we have compiled and examined the main provisions contained in the Decree of 10 April 1937, one of the most conspicuous and innovative norms of the time, that served as a basis for the transformation of, among others, the Mexican Civil Law. Such transformation was done by means of reducing the necessary age in order to be able to adopt to the minimum of thirty years; of unifying the legal adoption with the adoption of the abandoned and the fostered children in establishments depending on the Social Assistance with the aim of facilitating the family adoption; of incorporating the principle of revocation by unilateral or bilateral dissent in the courts; of assuming a modern concept of adoptive parenthood based on the interest of the helpless childhood (increasing the control of the suitability of the adoptive parents and the conversion into a public procedure of the adoptive procedure by means of the creation of a Family Court); of requiring the consent of the child that, being older than ten years old, is going to be adopted; and of derogating most part of the prohibitions to adopt in the Civil Code, included the prohibition relative to the existence of legitimate descendants, legitimated, natural sons that have been recognized or other adoptive sons (based on Justinian’s maxim «adoptio naturam imitatur»).