• Art. 211a of the Criminal Code: – „§ 1. Whoever, in order to gain financial gain, organizes the adoption of children contrary to the provisions of the Act, shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years. who has parental responsibility over the child, consents to the adoption of that child by another person: 1) in order to gain financial or personal gain, withholding this purpose before the court adjudicating in the adoption proceedings, and in the event the parent expresses consent to the adoption of the child in the future without indicating the person of the adopter – before the court accepting the declaration of consent, 2) excluding the procedure for adoption. § 3. The same penalty shall be imposed on anyone who agrees to adopt a child by himself under the conditions referred to in § 2. „
One of the effects of the amendment introduced by the Act of 20 May 2010 amending the Penal Code, the Police Act, the Act – Provisions introducing the Penal Code and the Act – Code of Criminal Procedure is Article 211a of the Criminal Code. It replaced the now obsolete article 253 §2. In addition, along with the Act of October 16, 2019 amending the Act – Penal Code and the Act – Code of Civil Procedure, it was given a new wording. By criminalizing the illegal organization of adoptions, the Polish legislator tries to fulfill the obligations imposed on States – Parties by the Convention of 20 November 1989 on the Rights of the Child. As a result of its ratification, it has become necessary to strengthen the protection of children’s rights, inter alia, in order to combat the illegal transfer of children and their illegal export abroad.
Before the entry into force of the 2010 amendment, article 253 was included in chapter XXII – „Offenses against public order”. The systematics adopted at that time clearly exposed public order as the main object of protection. Currently, the best interests of the child are cared for. Such action can in no way be equated with leaving complete freedom in terms of adoption procedures. Nevertheless, due to the more and more frequent and clearer emphasis on the essence of the protection of children’s rights in various normative acts with an international dimension – the Polish legislator has also shifted the focus to the rights of the youngest.
It is also worth paying attention to the concept of „child”. In terms of the convention, which is the basis for the current national regulation – a child is a person under the age of 18, unless legally they have reached the age of majority earlier. This means that a woman at the age of 16 who, with the consent of the guardianship court, got married will not be a child within the meaning of the Act.
The legal act of October 16, 2019 also introduced a legal definition of adoption. Until now, only the term „adoption” was used, in legal language using both terms alternately. However, this approach turned out to be too narrow. In view of the above, the legislator decided to put this issue in order, defining „adoption” as „the acquisition of parental responsibility over a child by a person other than the person from whom the child comes”. The essence of unlawful action in the case of a crime stipulated in Art. 211a of the Penal Code it is the mere achievement of a specific legal effect. As a consequence, the legal and family institution that the interested party reaches for is irrelevant. As A. Muszyńska points out – the effect of acquiring parental authority can be achieved both through the adoption procedure and, for example, through the fictitious recognition of the child by a person claiming to be the biological parent. „Adoption therefore covers all situations where the effect of the action is the acquisition of parental responsibility over the child, regardless of the legal instruments used for this purpose.” (A. Muszyńska [in:] Penal Code. Particular. Commentary, edited by J. Giezek, Warsaw 2021, art. 211 (a)). On the other hand, illegal organization of adoption comes down to conducting the adoption proceedings against the provisions of the Act, i.e. without the participation of relevant institutions and without the necessary verification. This is contrary to the aim of the institution – it is conducted against the best interests of the child, so it will not necessarily be appropriate to ensure proper conditions for upbringing in a family.
The offense under Art. 211a is universal and deliberate. The exception is §2 – typifying individual offenses – the subject may only be a person who has parental authority over a child. The gravity of the offense also means that not only the act is penalized, but also the attempt.
The discussion of illegal adoption can be concluded by drawing attention to the difference between this crime and human trafficking. This was already indicated by the Court of Appeal in Kraków, which in its decision of 11 January 1995 stated that „trade is trade in goods and money Thus, trafficking in children (human beings, a living commodity) expresses the treatment of a human being as a commodity, and thus the objectlessness of a human being as his object. Adoption activity is also a kind of trade in human beings, irrespective of the subjectivity of the adopted person, or severely restricting it (Art. 118 § 1 of the CC). An important difference between commercial and adoptive transactions is the purpose of the transfer of the child and the rights related to it: for the child’s benefit or against its interests. The purpose of adoption gives it the features of a positive, socially desirable, approved and recommended activity. It is not material gain, but the purpose of transferring children in the course of adoption determines the criminal nature of this activity „(Decision of the SA in Krakow of 11.01.1995, II AKz 480/94, Wokanda 1995, No. 11, item 55)
