New Guidance for Intercountry Adoptions of Japanese Children

We recently published a blog on a notice published by the U.S. Department of State (DOS) on April 13, 2018, regarding intercountry adoptions of Japanese children [see blog]. In the April 13 notice, the DOS stated that it was “reviewing Japanese law regarding the transfer of custody of a child without a court order, which may affect a child's eligibility for an adoption-based visa under the Immigration and Nationality Act.”

On May 15, 2018, the DOS published an updated Japan adoption notice on the same issue [PDF version].

In the notice, DOS explained that the Japanese Government has made clear that, under Japanese law, “the intercountry adoption of Japanese children requires authorization by Japanese courts.” Japan's Ministry of Health updated its page on the Special Adoption System, which we have uploaded with an English translation via Google Translate for your convenience: [PDF version]. You may also see the original Japanese version here: [PDF version].

In light of the Japanese Government's clarifying its policy, the DOS advised prospective adoptive parents “that it is not possible under Japanese law to transfer custody for purposes of intercountry adoption to the United States until a Japanese court has granted a special adoption.” In order to grant a special adoption in Japan, a Japanese court must find that the prospective adoptive parents meet several requirements under Japanese law. These requirements include, but are not limited to, completing “a minimum six month period of trial nurturing.”

Significantly, Japan's requirement that a Japanese court must approve any intercountry adoptions of Japanese children satisfies adoption-related provisions of the Immigration and Nationality Act. The DOS explained that “[u]nder U.S. immigration law, issuance of an immigrant visa for intercountry adoption requires either a full and final adoption decree or custody of an orphan for emigration and adoption under the laws” of the host country, which for the purposes of this notice would be Japan. The DOS added that under U.S. laws, a foreign child must meet one of the following two definitions:

1. The child has no parents because of the death or disappearance, abandonment, or separation from or loss of both parents; or
2. The child's sole or surviving parent is incapable of providing proper care and has, in writing, irrevocably released the child for emigration and adoption.

The DOS explained that under Japanese law, “the legal relationship between the birth parents and the child is not severed until the adoption is final.” Accordingly, foreign adoption of a Japanese child under either definition requires a Japanese court order granting a special adoption.

Thus, the DOS explained that any Americans seeking to complete an intercountry adoption of a Japanese child must procure finalization of the adoption from a Japanese court through Japan's special adoption process. This includes the “completion of a minimum six-month trial nurturing period in Japan.”

The DOS advised any families who are pursuing an adoption of a Japanese child without authorization of a Japanese court to contact their accredited adoption service provider and the DOS at adoption@state.gov.

The DOS urged adoption service providers to “not make new referrals to U.S. parents to pursue a transfer of custody of a child without authorization of a Japanese court.”

Completing an intercountry adoption in accordance with the country of nationality of the child and with U.S. laws is a daunting process. Prospective adoptive parents are advised to work with an experienced immigration attorney in addition to choosing a reputable accredited adoption service provider. It is also important to be aware of any updates regarding intercountry adoption from the specific country. In this notice, the DOS provided detailed clarification for the necessary steps for completing an intercountry adoption of a Japanese child.

Please see our website's section on intercountry adoption for our growing collection of articles on the subject [see category].