Who Stands to Benefit from Strict Intercountry Adoption Policies?

Zoe Dixon
Vol. 38 Associate Editor

The age of globalization has allowed businesses to operate in the global economy at a level of interconnectedness not previously imaginable.[1] Increase in cross-border transactions brings continuous flows of capital, commodities, and technology to the furthest corners of the Earth.[2] It also brings ethical issues.[3] As the world’s economies become more interdependent, disparities in wealth and power grow larger, and the risk and potential consequences of a single economy’s movements affecting the rest vastly increase.[4] These phenomena bring support for the idea that because we are all participants in the international economy by sharing the Earth’s limited resources, all people are responsible for the wellbeing of all others who share the planet.[6]

Scholars of adoption policy and human rights advocates believe intercountry adoption is one important way to uphold the global responsibility to care for each other,[7] largely rejecting fears of corruption, and dismantling patriotic arguments that maintenance of the child’s birth culture trumps the child’s right to protection and a loving family.[8]

This article discusses this and other arguments against intercountry adoption; examines how these concerns led to stricter intercountry adoption regulation; considers the justifications for intercountry adoption; and, concludes that strict intercountry adoption regulation contravenes notions of global interdependence and resulting ethical responsibilities.

Not everyone sees intercountry adoption as simply a way to nurture unwanted children by providing them much needed care.[9] A darker side of intercountry adoption is fraught with fraud, corruption, human trafficking, and gross parental inadequacies.[10] Scholars cynical about intercountry adoption believe globalization not only catalyzed the flow of transnational adoptions, but turned it into just another commoditized trade too easily corruptible and too scarcely policed.[11] They call attention to the severe medical, psychological and emotional issues trafficked children often suffer, and to the unspeakable grief birth families feel faced with loss of a child.[12] Additionally, studies demonstrate that wrongful adoptions can tear apart families, which can tear apart communities, which can tear apart countries, which can also cause fissures in U.S. foreign relations.[13]

Concerns about human trafficking in intercountry adoptions encourage stricter intercountry adoption criteria. Proponents of stricter international adoption criteria claim enhanced international adoption criteria could act as a net preventing illicit activity by creating accountability for violations and driving down overall demand in the black market adoption economy.[14]

In agreement, multi-country legislative bodies began imposing stringent transnational adoption regulations to ensure families are not adopting trafficked children or interacting with corrupt adoption systems. The first piece of transnational legislation aimed at regulating intercountry adoption was the Hague Adoption Convention on Co-Operation in Respect of Intercountry Adoption, entered into force in 1995.[15] It attempts “to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child,”[16] and to ensure that authorities of the adopting country have “determine(d) that the prospective adoptive parents are eligible and suited to adopt.”[17] Many countries have since signed the Hague Convention into the law of their own nations.[18] In the United States, the Intercountry Adoption Act (IAA) created the domestic statutory scheme codifying the Hague Convention.[19] It requires the adoptive child’s country and the receiving country comply with Hague Convention regulation and lays out infrastructure for birth countries’ administrative adoption agencies.[20] The IAA also makes fraudulent action against and direct violations of the act criminal offenses.[21]

Despite the Hague Convention’s guiding principle of “child’s interest first,” most adoption and human rights scholars agree that intercountry adoption is a solution, not a problem, and that this strict regulation carries steep tangible and intangible costs.[22] The more expensive the system of regulation, the fewer the number of homes that will be available to children in need.[23] To scholars who view adoption as the preferable alternative to orphanages and foster care, these costs are abhorrent.[24] Often, adoption care facilities are disease-ridden, far understaffed, and lack the funds to keep up building and to provide children food and fresh water.[25] Allowing children to spend more time in care facilities and stopping them from being placed in safe and supportive homes is far more reprehensible than making figurative statements to adoption frauds and traffickers. International adoption empiricists found that unparented children face a much higher statistical risk of harm and trauma, leading them to conclude “there is little systematic evidence of [corrupt and abusive] practices and they are minimal compared to the more direct mortality and developmental risks faced by orphaned children.”[26]

Strict intercountry adoption legislation does not only pose theoretical issues. Recently, intercountry adoption rates have dwindled—staggeringly so.[27] In 1999, the number of total intercountry adoptions totaled 15,717, and by 2015, it had plummeted to 5,647.[28] Many blame this glaring decrease on the Hague Convention and its domestic complements.[29] The Hague Convention has in fact had indisputably drastic effects. The severe policies codified in the IAA directly cause the world’s children to spend more time in orphanages, as the United States historically has received more children than any other nation.[30] Some countries were effectively cut off by the United States for not being up to Hague standards.[31] Other countries have taken to banning intercountry adoption themselves due to fears drummed up by the increased legislation.[32]

And yet, proponents of stricter regulation say Hague Convention and IAA standards are too lax.[33] They claim the IAA misses the mark on pre-adoption safeguards such as conducting thorough medical evaluations before placing the child,[34] and on post-adoption safeguards such as managing some adoptive families’ inability accommodate the child’s needs and deal with their trauma.[35]

The Children in Families First Act (CHIFFA) is new legislation that attempts to repair waning rates of intercountry adoption.[36] Opponents contend CHIFFA also fails in the arenas of pre- and post-adoption safeguards, and they argue that placement checks and counseling services should be funded under international law.[37]

But in the interest of the vast majority of the world’s unparented children, intercountry adoption standards cannot be so strict as to prevent tens of thousands of legitimate, beneficial adoptions yearly. Proponents of stricter regulation claim that the Hague Convention needs to hold true to its purpose of putting the interest of the child before all else.[38] But this is an argument that cuts both ways. Admittedly, there may be factors beyond the strict international legislation contributing to the plunging adoption rates (e.g. advancing fertility science, trends toward deciding against having children, increase in divorce and single parent homes), yet there remain millions of orphans in the world, and hundreds of thousands of U.S. families seeking adoptive children.[39] The Hague Convention performs against its purpose by preventing children from accessing the basic human right to protection and care, as “[i]t is cold comfort for a child to hear that every precaution is being taken to prevent a less than 1% chance of fraudulent adoption while they face a 10% chance of mortality in an orphanage in many countries.”[40]

Intercountry adoption regulation exists because all agree we want to promote whatever is in the child’s best interest. We need a globally systematized regulatory system to decrease illicit activity, while increasing accountability and not drastically quashing adoption rates. International agencies should track or require adopting countries to report the rate of intercountry adoptions that have failed, and receiving countries should impose the consequence of mandating that the child leave the adoptive parents’ custody.[41] Birth countries should be required to comply with regulation that protects against gross fraud and abuse, and children and adoptive families stand to benefit from screening and prosecutorial procedures that ensure children are not going to be abusive, neglectful, or mentally unstable. But when no serious violations are occurring, punishing unparented children and adoptive families by shutting down adoption altogether and refusing a child a more stable home benefits no party.[42]

[1] Globalization and International Trade, 66, 66-67, http://www.worldbank.org/depweb/beyond/beyondco/beg_12.pdf.

[2] Globalisation, Economics Online (2016), http://www.economicsonline.co.uk/Global_economics/Globalisation_introduction.html

[3] Leif Wenar, One World: The Ethics of Globalization,Peter Singer (New Haven: Yale University Press, 2002) and World Poverty and Human Rights, Thomas Pogge (Cambridge: Polity, 2002), Carnegie Council (Sept. 22, 2003), http://www.carnegiecouncil.org/publications/journal/17_2/reviews/1028.html.

[4] Globalisation, supra note 2.

[5] Globalisation, supra note 2.

[6] Marie Failinger, Moving Toward Human Rights Principles for Intercountry Adoption, 39 N.C. J. Int’l L. & Com. Reg. 523, 549-550 (2014).thecerns about reign relations. option, but that it has also dness not previously fathomable. point out that caste here. Our c n

[7] Paulo Barrozo, Finding Home in the World: A Deontological Theory of the Right to be Adopted, 55 N.Y.L. Sch. L. Rev. 701, 703-704, 730-731 (2010–11).

[8] Richard Carlson, Seeking the Better Interests of Children with a New International Law of Adoption, 55 N.Y.L. Sch. L. Rev. 733, 746 (2010–11) (expounding on arguments for preserving a child’s heritage).

[9] Id.

[10] Elizabeth Bartholet, International Adoption: A Way Forward, 55 N.Y.L. Sch. L. Rev. 687, 688-690 (2011).

[11] David M. Smolin, Child Laundering and the Hague Convention on Intercountry Adoption: the Future and Past of Intercountry Adoption, 48 U. Louisville L. Rev. 441, 444-446 (2010).

[12] Carlson, supra note 5, 755-760.

[13] Kevin Voight and Sophie Brown, International adoptions in decline as number of orphans grows, CNN (Sept. 17, 2013), http://www.cnn.com/2013/09/16/world/international-adoption-main-story-decline/.

[14] See generally Peter Hayes, The Legality and Ethics of Interdependent Adoption Under the Hague Convention, 15 Int. J. L. Policy Family 288 (2011).

[15] Hague Conference on Private International Law: Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, concluded May 29, 1993, 1870 U.N.T.S. 167 (entered into force May 1, 1995), available at http://www.hcch.net/upload/ conventionsltxt33en.pdf. [hereinafter Hague Convention]

[16] Id.

[17] Id.

[18] Id. (Fifty-two nations have signed this Convention; forty-nine nations have ratified it; twenty-two nations have acceded; forty-nine nations have both signed and ratified the Convention; and a total of seventy-four nations have taken some step to join by signing and/or ratifying and/or acceding).

[19] Intercountry Adoption Act of 2000, 42 U.S.C. §§ 14901-14954 (2011).

[20] Id. at §§ 14921, 14932.

[21] Id. at §§ 14944.deciding againstcting childbearingeir purpose of putting the interest of the child before all else. Yet, this is an argument th114

[22] Elizabeth Bartholet, Intergenerational Justice for Children: Restructuring Adoption, Reproduction and Child Welfare Policy, 8 Law & Ethics Hum. Rts. 103, 120-122 (2014).

[23] Elizabeth Bartholet, International Adoption: Propriety, Prospects and Pragmatics, 13 J. Am. Acad. Matrimonial Law. 181, 185 (1996).

[24] See generally Taemin King, Breaking the Myths on Intercountry Adoption in Romania, 10 Regent J. Int’l L. 131 (2014).

[25] Stephanie Pappas, Early Neglect Alerts Kids’ Brains, Live Science (July 23, 2012), http://www.livescience.com/21778-early-neglect-alters-kids-brains.html.

[26] Christopher Balding, International Child Adoption Law and Empirical Analysis, 13 Whittier J. Child & Fam. Advoc. 51, 63 (2014).

[27] See Statistics, U.S. Dep’t State: Intercountry Adoption, http://adoption.state.gov/about_us/statistics.php (last visited Apr. 14, 2014).

[28] Id.

[29] Elizabeth Curry, Why the Decline in International Adoptions?, adoption.com (April 14, 2016), https://adoption.com/why-the-decline-in-international-adoptions.

[30] See Statistics, supra note 27.

[31] Sara Dillon, Making Legal Regimes for Intercountry Adoption Reflect Human Rights Principles: Transforming the United Nations Convention on the Rights of a Child with the Hague Convention on Intercountry Adoption, 21 B.U. Int’l L.J. 179, 243-252 (2003).

[32] King, supra note 21, at 131.

[33] Jaci L. Wilkening, Intercountry Adoption Act Ten Years Later: The Need for Post-Adoption Requirements, 72 Ohio St. LJ. 1043, 1053 (2011).

[34] Samuel Thorp, In the best interest of the child?, Cambell Law Observer (March 23, 2015), http://campbelllawobserver.com/in-the-best-interest-of-the-child/.

[35] Leslie H. Wind et al., Influences of Risk History and Adoption Preparation on Post- Adoption Services Use in U.S. Adoptions, 56 FAM. REL. 378, 385 (2007).

[36] S. 1530, 113th Cong. (2013).

[37] Nila Bala, The Children in Families First Act: Overlooking International Law and the Best Interests of the Child, Stan. L. Rev. (Online, Apr. 18, 2014), https://www.stanfordlawreview.org/online/the-children-in-families-first-act/.

[38] Hague Convention, supra note 12.

[39] Balding, supra note 23, at 55.

[40] Id. at 84.

[41] Bala, supra note 34. adoptions totaledosal – Intercountry ent Adoption Under the Hague Conventionsupra

[42] Bartholet, supra note 20, at 194-195.

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