CASE 153: Adoption by Women
Gaius, Institutiones 1.104
Feminae vero nullo modo adoptare possunt, quia ne quidem naturales liberos in potestate habent.
(Gaius in the first book of his Institutes)
Women, to be sure, cannot adopt by any method, since they do not even have power over their natural (biological) offspring.
1. Biology versus Potestas.
Does this text suggest that the real concern of the jurists was that the rules on adoption mimic those for biological relationships? Or was it that they adhere to the regime for patria potestas? If the latter, was their concern exclusively legal, or could there be a sociological angle as well?2. Women Adopting. A text of Ulpian (D. 5.2.29.3) begins “Because a woman cannot adopt a child without an order from the emperor,” suggesting that emperors occasionally gave permission for adoption by women; see, for instance, Diocletian, C. 8.47.5 (A.D. 291). How can this be reconciled with the requirement that the adopter hold potestas over the adoptee? Does it suggest a possible redefinition of adoption, at least concerning female adopters, so that, for example, certain legal aspects of the mother-son relationship (such as rights to succession) might be created between them?
3. Adoption by the Husband Alone. Jane F Gardner (in Family and Familia) observes: “Children were not adopted by married couples, but by the husband alone, and his adoptive children were not related to his wife even as cognates.” Is this view approximately right, at least as a general description? If so, what strains would you anticipate as a result on ordinary family life?