Flaws in Intercountry Adoption
Intercountry adoption is often viewed as a means to provide children from unstable families with better lives. Because of the increasing demand for children, the Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption (hereafter referred to as the Hague Adoption Convention) was signed in 1993 to control the adoption processes. However, illegal intercountry adoption can occur even when the adoption in question seemingly complies with the Hague Adoption Convention. Because many steps in the intercountry adoption process take place outside of the country that will host the child, it is sometimes hard to detect where something illegal is taking place. Most intercountry adoptions send children from poor, underdeveloped countries to wealthier countries[1] and regulating what happens in the sending countries is challenging. In fact, the term child laundering specifically describes the process by which organizations and agencies in sending countries illegally take a child from their birth parents and make him/her legally adoptable.[2] New policies should be targeted at preventing such illegal activities to restore the fundamental principle of adoption — that is, to give a child in need a better environment to grow up in — and to punish the child laundering practices that currently escape legal repercussions.
A person in the United States looking to adopt a child from a foreign country must go through a lengthy process that requires a large amount of paperwork. Intercountry adoptions are governed by three sets of laws: U.S. federal law, the laws of the child’s country of residence, and the laws of the corresponding U.S. state of residence. The time it takes for a person in the United States to adopt a child can vary from one to up to four years (U.S. Department of State – Bureau of Consular Affairs). The process starts by contacting an accredited adoption service provider, which decides whether the candidate is eligible. If so, he/she must apply to be declared eligible by the U.S. government, which then refers the candidate to the home country of a potential child up for adoption. The candidate’s eligibility is once again evaluated by the home country under its own laws. If successful, the candidate will be matched with a child and be sent an Article 16 of the Hague Adoption Convention report that contains information about the child and the requirements. The final step is for the candidate to apply for provisional approval of the adoption to the U.S. government.
Article 16 is a critical element of the process: it contains information about the child’s “identity, adoptability, background, social environment, family history, medical history including that of the child's family, and any special needs of the child” (Hague Convention). Article 16 violations, which occur when any of the information is falsified, can happen in many ways; for example, the documentation of a child may indicate that he/she is an orphan, when he/she was in fact given up for adoption by parents who are still alive.[3] Furthermore, article 16 also gives assurance that Article 4 of the convention is respected— that is, that consent by birth parents to give up their child was given freely and did not involve payment or coercion. This is where most cases of child laundering occur. Among other scenarios, those outlined by David Smolin include buying of the child by crime groups, kidnapping, or taking children in payment of a debt. A shocking example of production of children for money occurred in 2013 when three persons were arrested for being involved in a “children factory” in Nigeria. Six girls were released after the police intervention and said that they were promised money after giving birth.[4]
As stated at the outset, the process of internationally adopting a child is lengthy. Potential parents consider going through a non-Hague process— meaning that the adopted child will come from a non-Hague Convention member, to reduce their waiting time and decrease the amount of bureaucratic work necessary. Those countries, however, are not required to follow the same process and nor is the sending country. The Convention only applies to adoption between contracting states, meaning that if one country is not a member, then the Convention does not apply to any country involved in the adoption. Not following the Convention comes with risks since the adoption service provider only needs to be accredited by the U.S. state where the potential parents reside.[5] Thus, one step in ensuring that the adoption does not violate the child and the parents’ rights is to require every contracting country to only proceed in adoption with another contracting country.
Another change that can be made by the United States to better regulate how children are obtained in sending countries is denying visas to potential adopted children. When the final step of the adoption process is approved, a visa application for the child may be submitted. With evidence that the child in question was purchased, the visa can be denied. However, this enforcement process has the issue that it is hard to find evidence to justify denial. Nonetheless, it can be added as a step to ensure legal adoption.[6]
Last but not least, I believe that like the UNICEF, the United States should define illegal adoption under the category of human trafficking. Using the human trafficking label can increase the number of enforcement options with which to combat the problem. “The number of laws under which violators can be prosecuted, the laws available for civil enforcement and civil reparations, and the mechanisms for providing victim assistance enlarge”.[7] The Trafficking Protocol of 2000’s definition of human trafficking consists of action, means, and purpose. The action requirement is met for intercountry adoption as a child is transported. The means requirement does not need to be proved when children are concerned. Even though most would argue that in general, adoption allows a child to move and grow up in a better environment, exploitation (a criterion that satisfies the purpose requirement) can happen earlier in the process of adoption. The Trafficking Protocol states that the definition of exploitation is open-ended and does not specify who is the exploited. Thus, the very act of a parent being forced or coerced into giving away their parental rights is exploitation.[8]Those are a few reasons that would rightfully justify the labeling of illegal adoption as human trafficking.
Even though the proposed policies outlined above seem relatively straightforward, they must take into account the complex issues that intercountry adoptions shed light into from a human rights perspective. It goes without saying that illegally producing or obtaining a child for adoption is both legally and morally wrong. But even when an intercountry adoption occurs in all legality, the line between a morally acceptable adoption and one that eventually reflects the exploitation of an impoverished family is hard to define. Because intercountry adoption often involves a family from a poorer country sending a child to a wealthier country, it can quickly become structurally questionable. Furtago and Guerra argue that “[the sending families] are so vulnerable and poor that, in their despair, they even accept relinquish[ing] their children and can even be grateful for it”.[9] In fact, this kind of exploitation cannot be resolved solely by new regulations on intercountry adoptions. Exploitation during adoption is also a reflection of more deeply rooted societal issues that include, among many others, poor access to contraception for women and an uncertain future for the child.
Focusing on the interests of adopted children can result in disregard for the way in which their biological families are treated. It is true that adoption first and foremost puts at stake the welfare of the adopted child. One of the key points of the Convention on the Rights of the Child signed by the United Nations in 1989 is that the best interests of the child should be a primary consideration in all actions concerning children. The Hague Adoption Convention also points at the child’s best interests as fundamental for intercountry adoptions. Of course, because the child is obviously the most affected by adoption, his/her interests, including his future environment, should be considered first. However, they cannot serve as a means to excuse exploitation of his/her biological family. I do believe that in certain cases, there can be long-term consequences for a child whose family has been exploited for his/her future. Beyond these suppositions that can be hardly examined, it is to be noted that just like organ trafficking, intercountry adoption can be structurally exploitative, especially since it primarily sends children from underdeveloped countries to wealthier ones. While policies should be updated to prioritize the child’s best interests and respect his or her fundamental rights, they should also seek to diminish the exploitation of impoverished people. Sending children to wealthier countries for a better future is both an opportunity for the child in question and the adopting family and a reflection of a deeply rooted inequality and exploitation of the impoverished.
[1] Misca, Gabriela. “The ‘Quiet Migration’: Is Intercountry Adoption a Successful Intervention In the Lives of Vulnerable Children?” Wiley Online Library. John Wiley & Sons, Ltd, February 19, 2014. https://onlinelibrary.wiley.com/doi/full/10.1111/fcre.12070.
[2] Smolin, David. 2005. "Child Laundering: How The Intercountry Adoption System Legitimizes And Incentivizes The Practices Of Buying, Trafficking, Kidnapping, And Stealing Children.". Law.Bepress.Com. https://law.bepress.com/cgi/viewcontent.cgi?article=3679&context=expresso.
[3] Alexander, Jessica. "Why The United States Should Define Illegal Adoption Practices As Human Trafficking". Hjil.Org. 2014. http://www.hjil.org/articles/hjil-36-3-alexander.pdf.
[4] "Une Nouvelle "Usine À Bébés" Découverte Au Nigeria". 2013. Le Monde.Fr. https://www.lemonde.fr/afrique/article/2013/05/15/une-nouvelle-usine-a-bebes-decouverte-au-nigeria_3232096_3212.html.
[5] Alexander. "Why The United States Should Define Illegal Adoption Practices As Human Trafficking".
[6] Ibid.
[7] Ibid.
[8] Ibid.
[9] Furtago Guerra, Diana. “International Adoption : How to Prevent Child Laundering.” Tilburg University, August 2017. http://arno.uvt.nl/show.cgi?fid=143436