Leonardo Siahaan conveying the revisions to the petition at the panel material judicial review hearing of Law No. 35 of 2014 on Child Protection, Tuesday (9/20/2022). Photo by MKRI.

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Tuesday, September 20, 2022 | 15:58 WIB

JAKARTA (MKRI)—The Constitutional Court (MK) held a preliminary hearing of the judicial review of Law No. 35 of 2014 on the Second Amendment to Law No. 23 of 2002 on Child Protection on Wednesday, September 20, 2022. The petition No. 83/PUU-XX/2022 was filed by Leonardo Siahaan. He challenges Article 39 paragraph (3) of the Child Protection Law, which reads, “The Prospective Parents shall have the same religion as the prospective Adoptee.”

The Petitioner said that he had revised the petition following the constitutional justices’ advice. “Firstly, the subject was changed following the justices’ advice to review of law. Secondly, the three justices advised me to focus on my constitutional impairment,” he said before Constitutional Justices Enny Nurbaningsih (panel chair), Suhartoyo, and Wahiduddin Adams.

He added that he had made the elaboration of the background of the petition clearer. The issue of child adoption, he argued, could be a legal one if the Petitioner settled down but his wife could not carry a child due to infertility or other medical issues.

“It would be difficult for me to adopt a child when the child’s religion is called into question. The phrase [‘prospective parents shall have the same religion as the prospective adoptee’] in Article 39 paragraph (3) is against Article 28B paragraph (1) of the 1945 Constitution, which, as I explained before, [stipulates that] ‘Everyone shall be entitled to form a family and continue their generation’ through a legitimate marriage. Married couples might desire children but not all can have their own children. Thus, clearly this article has violated Article 28B paragraph (1) [of the Constitution],” he said virtually.

He also argued that the a quo article is unconstitutional because it did not provide legal certainty for married couples who intend to adopt but face formal challenges.

Also read: Provision on Child Adoption Challenged

At the preliminary hearing on Wednesday, September 7, Leonardo Siahaan conveyed his challenge against Article 39 paragraph (3) of the Child Protection Law, which reads, “The Prospective Parents shall have the same religion as the prospective Adoptee.”

He argued the norm had violated the provision that “Everyone shall be entitled to form a family and continue their generation.” He felt that his constitutional right would potentially be harmed if he intended to adopt a child whose religion is different from him. He argued that the norm was against Article 28B and Article 28D paragraph (1) of the 1945 Constitution.

“The phrase ‘prospective parents shall have the same religion as the prospective adoptee’ in Article 39 paragraph (3) of Law No. 35 of 2014 does not provide a legal guarantee, [thus] is against Article 28D paragraph (1) of the 1945 Constitution,” he asserted.

Child adoption might be intended by married couples who have not been blessed with a child. Couples may also adopt children from poor families, children that are neglected, and orphaned children. It would be legally problematic and peculiar, the Petitioner said, to prioritize religion in adoption. It might hinder people who have the noble intention of caring for neglected children and orphans regardless of religion.

The Petitioner argued that there should be a special reason for same religion in adoption and the solution if there are no prospective adoptive parents of the same religion. Adoption regardless of religion should be allowed since it is for the child’s best interest and welfare. Requirements for it should not hinder that aim. 

Writer        : Utami Argawati
Editor        : Nur R.
PR            : Muhammad Halim
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 10/11/2022 21:55 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.

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