Journal of Civil Law Studies


Spain, adoption, autonomy of will, European Conven-tion on Adoption, filiation, legal capacity, personal acts, protection of minors, Spanish law


Even though in Spanish law the act establishing the adoption is judicial in nature, declarations of will have special relevance in the process, since they are a necessary precondition for the adoption. This work focuses on the assent of the biological mother, who is affected by and has an interest in the adoption process, even if not a party to it herself. In this work, the foundation, configuration, and characteristics of this assent are studied, as well as the form of her declaration of will, and the ability of the mother to offer it. Special attention is paid to the minimum time limit for issuing this declaration. This time limit is based on the European Convention on Adoption and constitutes a legal limitation on women’s autonomy. As an alternative to this limitation, we come with a proposal de lege ferenda which ensures a balance between the need for certain precautions and the free exercise of women’s decision-making power. This proposal is applicable to all European systems and is consistent with the European Convention, which introduces this limitation on women’s autonomy. Finally, a revision of the European Convention is proposed to adapt it to the growing demand for increased autonomy for all persons.

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