QUESTION 57: OF LEGAL RELATIONSHIP, WHICH IS BY ADOPTION
We must now consider legal relationship which is by adoption. Under this
head there are three points of inquiry:
(1) What is adoption?
(2) Whether one contracts through it a tie that is an impediment to
(3) Between which persons is this tie contracted.
Article 1: Whether adoption is rightly defined?
Objection 1: It would seem that adoption is not rightly defined: "Adoption is
the act by which a person lawfully takes for his child or grandchild and
so on one who does not belong to him." For the child should be subject to
its father. Now, sometimes the person adopted does not come under the
power of the adopter. Therefore adoption is not always the taking of
someone as a child.
Objection 2: Further, "Parents should lay up for their children" (2 Cor. 12:14). But the adoptive father does not always necessarily lay up for
his adopted child, since sometimes the adopted does not inherit the
goods of the adopter. Therefore adoption is not the taking of someone as
Objection 3: Further, adoption, whereby someone is taken as a child, is
likened to natural procreation whereby a child is begotten naturally.
Therefore whoever is competent to beget a child naturally is competent to
adopt. But this is untrue, since neither one who is not his own master,
nor one who is not twenty-five years of age, nor a woman can adopt, and
yet they can beget a child naturally. Therefore, properly speaking,
adoption is not the taking of someone as a child.
Objection 4: Further, to take as one's child one who is not one's own seems
necessary in order to supply the lack of children begotten naturally. Now
one who is unable to beget, through being a eunuch or impotent, suffers
especially from the absence of children of his own begetting. Therefore
he is especially competent to adopt someone as his child. But he is not
competent to adopt. Therefore adoption is not the taking of someone as
Objection 5: Further, in spiritual relationship, where someone is taken as a
child without carnal procreation, it is of no consequence whether an
older person become the father of a younger, or "vice versa," since a
youth can baptize an old man and "vice versa." Therefore, if by adoption
a person is taken as a child without being carnally begotten, it would
make no difference whether an older person adopted a younger, or a
younger an older person; which is not true. Therefore the same conclusion
Objection 6: Further, there is no difference of degree between adopted and
adopter. Therefore whoever is adopted, is adopted as a child; and
consequently it is not right to say that one may be adopted as a
Objection 7: Further, adoption is a result of love, wherefore God is said to
have adopted us as children through charity. Now we should have greater
charity towards those who are connected with us than towards strangers.
Therefore adoption should be not of a stranger but of someone connected
I answer that, Art imitates nature and supplies the defect of nature
where nature is deficient. Hence just as a man begets by natural
procreation, so by positive law which is the art of what is good and
just, one person can take to himself another as a child in likeness to
one that is his child by nature, in order to take the place of the
children he has lost, this being the chief reason why adoption was
introduced. And since taking implies a term "wherefrom," for which reason
the taker is not the thing taken, it follows that the person taken as a
child must be a stranger. Accordingly, just as natural procreation has a
term "whereto," namely the form which is the end of generation, and a
term "wherefrom," namely the contrary form, so legal generation has a
term "whereto," namely a child or grandchild, and a term "wherefrom,"
namely, a stranger. Consequently the above definition includes the genus
of adoption, for it is described as a "lawful taking," and the term
"wherefrom," since it is said to be the taking of "a stranger," and the
term "whereto," because it says, "as a child or grandchild ."
Reply to Objection 1: The sonship of adoption is an imitation of natural sonship.
Wherefore there are two species of adoption, one which imitates natural
sonship perfectly, and this is called "arrogatio," whereby the person
adopted is placed under the power of the adopter; and one who is thus
adopted inherits from his adopted father if the latter die intestate, nor
can his father legally deprive him of a fourth part of his inheritance.
But no one can adopt in this way except one who is his own master, one
namely who has no father or, if he has, is of age. There can be no
adoption of this kind without the authority of the sovereign. The other
kind of adoption imitates natural sonship imperfectly, and is called
"simple adoption," and by this the adopted does not come under the power
of the adopter: so that it is a disposition to perfect adoption, rather
than perfect adoption itself. In this way even one who is not his own
master can adopt, without the consent of the sovereign and with the
authority of a magistrate: and one who is thus adopted does not inherit
the estate of the adopter, nor is the latter bound to bequeath to him any
of his goods in his will, unless he will.
This suffices for the Reply to the Second Objection.
Reply to Objection 3: Natural procreation is directed to the production of the
species; wherefore anyone in whom the specific nature is not hindered is
competent to be able to beget naturally. But adoption is directed to
hereditary succession, wherefore those alone are competent to adopt who
have the power to dispose of their estate. Consequently one who is not
his own master, or who is less than twenty-five years of age, or a woman,
cannot adopt anyone, except by special permission of the sovereign.
Reply to Objection 4: An inheritance cannot pass to posterity through one who has
a perpetual impediment from begetting: hence for this very reason it
ought to pass to those who ought to succeed to him by right of
relationship; and consequently he cannot adopt, as neither can he beget.
Moreover greater is sorrow for children lost than for children one has
never had. Wherefore those who are impeded from begetting need no solace
for their lack of children as those who have had and have lost them, or
could have had them but have them not by reason of some accidental
Reply to Objection 5: Spiritual relationship is contracted through a sacrament
whereby the faithful are born again in Christ, in Whom there is no
difference between male and female, bondman and free, youth and old age
(Gal. 3:28; Col. 3:11). Wherefore anyone can indifferently become
another's godfather. But adoption aims at hereditary succession and a
certain subjection of the adopted to the adopter: and it is not fitting
that older persons should be subjected to younger in the care of the
household. Consequently a younger person cannot adopt an older; but
according to law the adopted person must be so much younger than the
adopter, that he might have been the child of his natural begetting.
Reply to Objection 6: One may lose one's grandchildren and so forth even as one
may lose one's children. Wherefore since adoption was introduced as a
solace for children lost, just as someone may be adopted in place of a
child, so may someone be adopted in place of a grandchild and so on.
Reply to Objection 7: A relative ought to succeed by right of relationship; and
therefore such a person is not competent to be chosen to succeed by
adoption. And if a relative, who is not competent to inherit the estate,
be adopted, he is adopted not as a relative, but as a stranger lacking
the right of succeeding to the adopter's goods.
Article 2: Whether a tie that is an impediment to marriage is contracted through adoption?
Objection 1: It would seem that there is not contracted through adoption a tie
that is an impediment to marriage. For spiritual care is more excellent
than corporeal care. But no tie of relationship is contracted through
one's being subjected to another's spiritual care: else all those who
dwell in the parish would be related to the parish priest and would be
unable to marry his son. Neither therefore can this result from adoption
which places the adopted under the care of the adopter.
Objection 2: Further, no tie of relationship results from persons conferring a
benefit on another. But adoption is nothing but the conferring of a
benefit. Therefore no tie of relationship results from adoption.
Objection 3: Further, a natural father provides for his child chiefly in three
things, as the Philosopher states (Ethic. viii, 11,12), namely by giving
him being, nourishment and education; and hereditary succession is
subsequent to these. Now no tie of relationship is contracted by one's
providing for a person's nourishment and education, else a person would
be related to his nourishers, tutors and masters, which is false.
Therefore neither is any relationship contracted through adoption by
which one inherits another's estate.
Objection 4: Further, the sacraments of the Church are not subject to human
laws. Now marriage is a sacrament of the Church. Since then adoption was
introduced by human law, it would seem that a tie contracted from
adoption cannot be an impediment to marriage.
On the contrary, Relationship is an impediment to marriage. Now a kind
of relationship results from adoption, namely legal relationship, as
evidenced by its definition, for "legal relationship is a connection
arising out of adoption." Therefore adoption results in a tie which is
an impediment to marriage.
Further, the same is proved by the authorities quoted in the text (Sent.
iv, D, 42).
I answer that, The Divine law especially forbids marriage between those
persons who have to live together lest, as Rabbi Moses observes (Doc.
Perp. iii, 49), if it were lawful for them to have carnal intercourse,
there should be more room for concupiscence to the repression of which
marriage is directed. And since the adopted child dwells in the house of
his adopted father like one that is begotten naturally human laws forbid
the contracting of marriage between the like, and this prohibition is
approved by the Church. Hence it is that legal adoption is an impediment
to marriage. This suffices for the Replies to the first three Objections,
because none of those things entails such a cohabitation as might be an
incentive to concupiscence. Therefore they do not cause a relationship
that is an impediment to marriage.
Reply to Objection 4: The prohibition of a human law would not suffice to make an
impediment to marriage, unless the authority of the Church intervenes by
issuing the same prohibition.
Article 3: Whether legal relationship is contracted only between the adopting father and the adopted child?
Objection 1: It would seem that a relationship of this kind is contracted only
between the adopting father and the adopted child. For it would seem that
it ought above all to be contracted between the adopting father and the
natural mother of the adopted, as happens in spiritual relationship. Yet
there is no legal relationship between them. Therefore it is not
contracted between any other persons besides the adopter and adopted.
Objection 2: Further, the relationship that impedes marriage is a perpetual
impediment. But there is not a perpetual impediment between the adopted
son and the naturally begotten daughter of the adopted; because when the
adoption terminates at the death of the adopter, or when the adopted
comes of age, the latter can marry her. Therefore he was not related to
her in such a way as to prevent him from marrying her.
Objection 3: Further, spiritual relationship passes to no person incapable of
being a god-parent; wherefore it does not pass to one who is not
baptized. Now a woman cannot adopt, as stated above (Article , ad 2).
Therefore legal relationship does not pass from husband to wife.
Objection 4: Further, spiritual relationship is stronger than legal. But
spiritual relationship does not pass to a grandchild. Neither, therefore,
does legal relationship.
On the contrary, Legal relationship is more in agreement with carnal
union or procreation than spiritual relationship is. But spiritual
relationship passes to another person. Therefore legal relationship does
Further, the same is proved by the authorities quoted in the text (Sent.
iv, D, 42).
I answer that, Legal relationship is of three kinds. The first is in the
descending order as it were, and is contracted between the adoptive
father and the adopted child, the latter's child grandchild and so on;
the second is between the adopted child and the naturally begotten child;
the third is like a kind of affinity, and is between the adoptive father
and the wife of the adopted son, or contrariwise between the adopted son
and the wife of the adoptive father. Accordingly the first and third
relationships are perpetual impediments to marriage: but the second is
not, but only so long as the adopted person remains under the power of
the adoptive father, wherefore when the father dies or when the child
comes of age, they can be married.
Reply to Objection 1: By spiritual generation the son is not withdrawn from the
father's power, as in the case of adoption, so that the godson remains
the son of both at the same time, whereas the adopted son does not. Hence
no relationship is contracted between the adoptive father and the natural
mother or father, as was the case in spiritual relationship.
Reply to Objection 2: Legal relationship is an impediment to marriage on account
of the parties dwelling together: hence when the need for dwelling
together ceases, it is not unreasonable that the aforesaid tie cease, for
instance when he ceases to be under the power of the same father. But the
adoptive father and his wife always retain a certain authority over their
adopted son and his wife, wherefore the tie between them remains.
Reply to Objection 3: Even a woman can adopt by permission of the sovereign,
wherefore legal relationship passes also to her. Moreover the reason why
spiritual relationship does not pass to a non-baptized person is not
because such a person cannot be a god-parent but because he is not a fit
subject of spirituality.
Reply to Objection 4: By spiritual relationship the son is not placed under the
power and care of the godfather, as in legal relationship: because it is
necessary that whatever is in the son's power pass under the power of the
adoptive father. Wherefore if a father be adopted the children and
grandchildren who are in the power of the person adopted are adopted also.