Love and Legislation: The International Politics of Inter-country Adoption
August 17, 2011
Probably not since the first wave of inter-country adoptions took place in the aftermath of the Korean War has there been so much attention focused upon the very personal decision of taking a child from one country, and placing him/her permanently within a family in another. Between 1999 and 2010, 224,615 children—often girls, and most aged two and under—were adopted into the United States,1 whilst overall, Sweden, Ireland, and Spain lead the field in terms of inter-country adoptions per 100,00 inhabitants in each country (10.18, 9.45 and 7.79 respectively).2
In an increasingly celebrity-obsessed culture, inter-country adoption can appear to demonstrate the very worst of what wealth and fame can bring—the ability to treat children as commodities, "buying" them to create not only the family that you desire, but the one that publicly appears to elevate the adopter to some form of "saintly" status. It may also appear to imply neo-colonialism, with the common assumption that inter-country adoption implies that a child is "saved" from a poor country by bringing it up in a rich one.
Behind such appearances, however, is the real story of inter-country adoption—and it is a story that demonstrates a number of things that are of significance not only to each family touched by adoption, but also to the wider discourse of international affairs, and to the ethical dilemmas that surround it. In an era supposedly characterized by a desire for pluralism, multi-culturalism, and hybridity, the many dilemmas of inter-country adoption demonstrate how far we have come, but also how far we still have to go.
Although the number of inter-country adoptions is certainly large, the figures should be seen in proportion. UNICEF estimates suggest that there are around 140 million children who have lost at least one parent, whether as a result of poverty, conflict, or disease. The greatest proportion of these children live in Africa, whilst the largest numbers of orphans are in Asia.3
For the vast majority of these children, adoption is not an option, whether because it is unnecessary—they may still be being cared for within their families, whether by their surviving parent or by extended family; because it is unlikely—some children may be seen as "unadoptable" for a variety of reasons, such as age, disability, or HIV status; or because it is impossible, for example in societies where there is no history of adoption or where the societal infrastructure cannot support it. Where it works, however, it seems that inter-country adoption can actually help to change the culture of adoption in the adoptees' native country, so that in the longer term more children are cared for within their own communities. In China, for example, there is now evidence that as the number of inter-country adoptions has increased so has the number of Chinese families willing to consider domestic adoption.
As interest in inter-country adoption has grown, so has the desire of the international community to create a regime that they hope will ensure that the practice is not only legally appropriate but also ethically sound. This desire has been aided at times by some very high profile cases—often in the wake of conflict and natural disaster—where legality and ethics appear to have left the room. A recent example is the now famous case of January 2010 when Haitian police arrested and charged ten American nationals from the Idaho-based charity New Life Children's Refuge, who wanted to take orphans from the quake to an orphanage in the Dominican Republic for subsequent adoption into the United States. Actions such as these demonstrate the increase in "demand" for inter-country adoptees that happens at such times, something indeed that Haiti has recognized in its vocal acknowledgment of its intention to join the Hague Adoption Convention. Questions remain, however as to the efficacy of the Hague Convention and what the present legal regime surrounding inter-country adoption is really designed to achieve.
The Hague Convention of May 29, 1993 on Protection of Children and Co-operation in Respect of Inter-country Adoption (Hague Adoption Convention) protects children and their families against the risks of illegal, irregular, premature, or ill-prepared adoptions abroad. This Convention, which also operates through a system of national Central Authorities, reinforces the UN Convention on the Rights of the Child (UNCRC - Art. 21) and seeks to ensure that inter-country adoptions are made in the best interests of the child and with respect for his or her fundamental rights, and to prevent the abduction, the sale of, or traffic in, children.
These are goals that all should be able to agree on, and of course the UNCRC would appear to have a clear mandate, given that it is the most widely ratified human rights treaty in history. However the UNCRC is a document that is arguably flawed in that rather than giving children real rights, it instead lays down the obligations that adults have to them, all couched in terms of a western idealization of childhood that can actually curtail the rights of those children whose lives cannot live up to that ideal. Moreover, the Hague Convention has currently been signed by only 87 countries and ratified by 83, and the majority of those who have ratified it are countries who in inter-country adoption terms would be "receiving" countries rather than "sending" ones.
This does not mean that those countries who have not signed and/or ratified it do not set a priority on the best interests of the child. Rather that they may not see adoption as a significant issue or, indeed, that they may not be able to afford to implement the regulations that the Convention requires, such as ensuring that, after the possibilities for placement of the child within the State of origin have been given due consideration, an inter-country adoption is in the child's best interests; and that the persons, institutions and authorities whose consent is necessary for adoption, have been properly counseled and notified of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin.4
For this reason, many of the "receiving" countries, for example the U.S. and the UK, will have national legislation in place that covers adoptions from Hague Convention signatories AND from non-Hague Convention signatories. The U.S. is in the unique position of being a signatory to the Hague Convention, but of not being a signatory to the UNCRC, the latter a decision that appears to be informed by the notion of the primacy of the family, and in particular the role of parents, as well as the concern (often expressed by conservative Christian groups) that the UNCRC in some way undermines parental rights and authority.5 Such a position is particularly ironic given that so many U.S. agencies specializing in inter-country adoption have a clear Christian focus in their activities, and also given that so many adoptive parents cite a calling from God as the catalyst for their adoption journey.6
The debate surrounding inter-country adoption is not made any clearer by the somewhat negative tone that some of the most powerful intergovernmental and non-governmental organizations (NGO's) that advocate for children assume in their views.
For example, UNICEF states that it supports inter-country adoption, when it is carried out in line with the standards and principles of the Hague Convention, but that it is a practice that can also pose significant problems and risks if children are unnecessarily denied the opportunity to live with their parents or relatives and/or are exposed to trauma and long-term emotional problems. UNICEF also states that the financial aspects of international adoption can encourage malpractice and accelerate the proliferation of poor quality orphanages, as well as diverting resources from the development of good quality alternative care for children in their own communities.
There is no doubt that there is truth in such statements—adoption does have a life-long impact on any child, and there are indeed financial incentives that can encourage malpractice. But many would argue that the amount of lip-service paid to these issues is out of proportion with the extent of these malpractices themselves. This is not to say that cases of corruption and child laundering do not take place—they absolutely do; however seeing inter-country adoption as somehow commensurate with such malpractice is to take a distorted view. Moreover, such sentiments take much away from the majority of bona fide adoptive parents who often spend significant time ensuring that their adoptions are ethical, and on trying to minimize the long-term ill effects on their child.
Similarly, Save the Children states that:
While intercountry adoption may, in some circumstances, be the best option for some children, adoption does not address the root cause of its existence, namely poverty, wars and natural disasters. If the economic, social and protection needs of citizens in developing countries could be met, there would be little need for intercountry adoption. Consequently, families in developing countries should be supported so that children are able to be cared for in the context of their own families, communities and culture.
Again, this is a laudable aim, and no-one should ever seek to take away a child from his/her birth family when the possibility exists that they could remain. But the problem is that for so many children, despite the best efforts of NGO's, such a possibility does not exist—whether because of poverty, or illness, or separation—and when this is the case inter-country adoption is one of a range of options that are available. Furthermore there are few who would claim that adoption is a solution to the root causes of its existence. Of course the ideal solution is an end to poverty and wars, and creating better coping mechanisms after natural disasters in developing countries. Yet the current reality is that for individual children who cannot be cared for in a family setting in their country of origin, inter-country adoption may be the best permanent solution.
In a recent open letter to former President Bill Clinton, founder of Worldwide Orphans Foundation Jane Aronson stated that:
The destruction of international adoption has become the cure for a misdiagnosed disease. Uninspired, bureaucratic, desperate decision-makers in governments, including our own, and in large child welfare organizations, raise the cry of "trafficking" and the rest is inevitable: to protect the children and stop the trafficking—stop adoption."
Policymakers might make better use of their time if they actually tackled the root causes of inter-country adoption that continue to exist in developing countries—the searing poverty and inequality, and the soaring levels of HIV infection—rather than spending so much time trying to legislate it out of existence. Whilst no one is denying that adoption needs to be transparent, ethical, and in the best interests of the child, I would argue that when done right, inter-country adoptions can be beneficial for all concerned—because the real story of inter-country adoption can be seen in the thousands of children who have received better life chances as a result, and the thousands more who have been denied that possibility.
Indeed, the real questions we should be asking are: What is our current international system, and the legislation that supports it actually designed to do?: Is it to help those who are in need, or is it to allow policymakers—whoever they may be—to think that they have?
The author would like to thank the editors, Madeleine Lynn and Oliver Richmond,
for their comments during the writing process. All errors remain the author's
3 "UNICEF Data on Orphans by Region to 2010 [Chart]," in Children and Youth in History, Item #293
4 Hague Conference on Private International Law, Intercountry Adoption section
5 Kilbourne, Susan, "Placing the Convention on the Rights of the Child in an American context," Human Rights, 26.2 (Spring, 1999): 27(5).
6 Evidence of this can be seen in the many "gotcha day" videos on YouTube that document, the journey towards adoption that so many families have made.