A number of months ago, I wondered whether my interest in the ongoings of the adoptions world would be as keen once our adoptions were finalized, and our kids home. I know the answer now: It has continued. I still read the same yahoo forums that I've been a part of for a number of years (though admittedly less frequently throughout the day, and usually at night or in the early morning hours), and am rooting for families still waiting for referrals/court dates/visas/etc; I still read up on adoption news; and I still want to know everything about adoption as it relates to Ethiopia. Adoption is simply part of the fabric of our lives.
So I was very interested to read (or, in parts, skim) the following article, written by Elizabeth Bartholet of the Harvard Law School, for the London School of Economics' Global Policy publication. It contains a fantastic and comprehensive perspective on some of the changes going on in the world of international adoption and, despite being written eighteen months ago, is very relevant today. I wish there wasn't quite a much mention of Madonna's adoptions, but in general, I very much agree with what I've read here.
Note: there is (at least one) thing that I wish I could add to/change about the article. The author states at one point that where one/both biological parents are still living, the children have either been removed for maltreatment or abandoned. I would add here that there are many additional reasons why children may be relinquished by the living parent(s), other than maltreatment or abandonment...our own adoptions would be examples of this.
In the details of the article are, incidentally, to be found the reasons why I will never place a penny into the Halloween Unicef boxes. I know that this is a controversial statement, and I know at least a little bit about Unicef's stated positions, but I also know that where Unicef has gone (and invested money), adoption systems have been threatened or have closed. And Unicef has been present and active in Ethiopia for at least the last seven months (could there be a correlation to so many changes in ET in recent months, changes which threatened our own adoptions in March? I have thought so for many months.)
I know the article is long, but for those immersed in the adoption world, and indeed for anyone concerned about the plight of children worldwide, it is worth the read.
Global Policy Volume 1 . Issue 1 . January 2010
2010 London School of Economics and Political Science and John Wiley & Sons Ltd.
International Adoption: The Human Rights Position
International adoption is under siege, with the number of children placed dropping in each of the last several years, and many countries imposing severe new restrictions. Key forces mounting the attack claim the child human rights mantle, arguing that such adoption denies heritage rights and often involves abusive practices. Many nations assert rights to hold on to the children born within their borders, and others support these demands citing subsidiarity principles. But children’s most basic human rights are to grow up in the families that will often be found only through international adoption. These rights should trump any conflicting state sovereignty claims.
- International adoption is under siege by those claiming the human rights mantle.
- Children’s most fundamental human rights include the right to a nurturing family which is often available only through international adoption.
- Children’s fundamental human rights should trump state sovereignty claims.
- Neither adoption abuses nor concepts of heritage justify restrictive international adoption policies, in-country hold- ing periods or the elimination of private adoption intermediaries.
- International adoption appropriately recognizes children as citizens of a global community with basic human rights entitlements.
I flew from the United States to Peru in 1985 to adopt four-month-old Christopher, and flew back in 1987 to adopt one-month-old Michael. I counted myself from the first moments we met as extraordinarily lucky to be their parent.
But I still wondered at the policies that made it so hard to adopt. I spent three months in Peru for each adoption, agonizing through endless sessions with police, social workers and courts, and fighting off mysterious threats to remove the children who had become mine in every way except the law. I realized then that of all those who might want to adopt from Peru very few would be able to, given the difficulties.
I also began to learn how many children needed parents. Daily I would hear about those newly orphaned by the Shining Path terrorists. In an orphanage, I saw babies crowding the nurseries and older kids playing and fighting unsupervised in the bleak yard. Few children ever received a visit from a parent or relative, yet no system apparently existed for terminating parental rights so that children could be adopted. The child welfare agency told those who inquired about adoption that no children were available.
I have spent much of the 25 years since my adoptions studying the needs of unparented children worldwide, and the role of international adoption. This work has simply intensified my initial conviction that something is terribly wrong with policies that lock children into orphanages, away from prospective parents.
For a period during this time, some more adoption- friendly policies developed. The Hague Convention on Intercountry Adoption was promulgated, preferring such adoption to in-country foster and institutional care (Bartholet, 2007b, pp. 172–177; Hague Conference on Private International Law, 1993). The numbers of international adoptions rose, reaching up to 45,000 worldwide (Paulsen and Merighi, 2009, p. 3; Selman, 2006). Some countries that had not allowed children to be placed abroad opened up, including Russia, China and countries in Eastern Europe and Africa. Adoption became less stigmatized, and thus chosen by more prospective parents.
However in the past several years the world has reversed direction. The numbers of international adoptions have dropped dramatically. Many countries have closed or severely restricted their international adoption programs. It is now almost unheard of for children to be placed internationally as the young infants that Christopher and Michael were. Indeed it is extremely rare for children under the age of one to be placed. Yet child welfare experts know that keeping infants in institutional care for more than a few months puts them at enormous risk of lifelong damage, even if they are ultimately adopted, with the risk increased proportionately with the length of stay (Bartholet, 2007a, pp. 346–348).
The organizations leading the attack on international adoption describe themselves as child human rights organizations. But institutional forms of human rights activism have often played a perverse role (Kennedy, 2004). Children’s most fundamental human rights are to be raised in the families that are often available only internationally.
1. The Crisis in International Adoption
International Adoption under Siege
UNICEF and many other international children’s organizations promote the idea that unparented children should be kept at almost all costs in their country of origin. UNICEF agrees in principle that children should not be institutionalized, but presses for the development of in-country alternatives to international adoption – support for poor parents, foster care and domestic adoption. As international adoption began to expand, UNICEF focused increasingly on its alleged problems, claiming that adoption abuses involving baby buying, fraud and kidnapping were wide- spread. And UNICEF calls for policy changes designed to limit international adoption to last-resort status (Bartholet, 2007b, pp. 154–157).
In many ‘sending countries’ national pride has led to calls to stop selling, or giving away, ‘our most precious resources’, and to claims that the country should ‘take care of our own’. ‘Receiving countries’ have been responsive to these attacks (Bartholet, 2007b, p. 167). They have nothing to gain and much to lose if they look as if they are taking children from unwilling countries.
The media reflect and exacerbate the hostility to international adoption, featuring stories of baby buying and kid- napping. One article receiving extensive media coverage, ‘The Lie We Love’, rejects the ‘myth’ that such adoption provides homes to children in need, claiming that there are virtually no unparented young children, and that adoption abroad results in ‘babies ... being systematically bought, coerced, and stolen away from their birth families’ (Graff, 2008, p. 60).
Impact of the Attacks on International Adoption
These attacks have had an impact. After six decades of steadily rising, international adoptions into the US, the world’s major receiving country, have been down each year since the 2004 peak of 22,884 (Bartholet, 2007b, pp. 158– 159; US Department of State, 2008). Some project that by 2010 the number will fall to significantly less than half that number (DiFilipo, 2009). Worldwide, such adoptions are dropping at a similar rate.
Several countries with huge orphanage populations and often horrendous orphanage conditions have severely limited international adoption. Romania’s orphanages were brought to the world’s consciousness at the time of former dictator Ceausescu’s fall. Seasoned journalists were in tears as they reported on children tied to their cribs, children who had never learned to walk or talk and children dying from AIDS contracted in the orphanage. Post-Ceausescu, international adoption placed thousands of Romanian children per year for several years. But Romania recently ended such adoption, in response to demands that they do so in order to join the European Union (Bartholet, 2007b, pp. 161–163). Russia, with huge numbers of institutionalized children, instituted a requirement that children be held six months prior to placement abroad, despite the limited number of in-country homes. China instituted new rules limiting the eligibility of international adoptive parents, claiming there was no longer much need for foreign adoptive homes, despite the millions of abandoned baby girls (Bartholet, 2007b, pp. 160–161).
Several countries that used to release significant numbers of children as early infants have severely restricted international adoption. Guatemala, once one of the world’s major sending countries, placed many children at four to six months of age, with excellent prospects for healthy development. After UNICEF and others called for a moratorium, based on alleged adoption abuses, Guatemala closed down (Bartholet, 2007b, pp. 156–157, 190–191).
Positions Taken by International Adoption Critics
Some argue that international adoption is an inherent violation of human rights, depriving children of their heritage birthright. An academic adviser to the European Parliament took this position in opposing Romania’s admission to the Union (Bainham, 2003). Another academic critic argues that international adoption is inherently exploitative, because many birth parents are induced by poverty to surrender their children (Smolin, 2004).
UNICEF says that it is not entirely against such adoption. Along with most critics, UNICEF focuses on adoption abuses, and argues for regulatory ‘reform’ to ensure against baby buying and fraud and to provide preferences for in-country placement.
However UNICEF actions reveal that it sees almost no legitimate role for international adoption. One UNICEF policy paper targets any country placing significant numbers of children abroad as a problem requiring adoption reform (Bartholet, 2007b, pp. 154–157). UNICEF promotes family preservation, family reunification and kinship care as the policy priorities, arguing for expansion of social welfare support for poor families.
Dozens of self-styled child human rights organizations opposed Madonna’s two adoptions from Malawi, although there was no alternative for the children except continued life in an orphanage. Sixty-seven such organizations filed amicus briefs in court opposing the first adoption. The Human Rights Consultative Committee, representing 85 such organizations, opposed the second adoption, arguing that under the Convention on the Rights of the Child institutional care was preferred to international adoption (Pound Pup Legacy, 2009). The high-profile Save the Children also opposed this adoption.
Moreover UNICEF and other critics have promoted policies that would effectively eliminate international adoption. They call for closing down adoption programs in response to alleged abuses. They call for eliminating the private intermediaries that are in many countries the lifeblood of adoption. They argue that international adoption must be ‘subsidiary’ to various in-country options, regardless of whether those options exist. Thus UNICEF’s official position is that international adoption should be considered only after in-country adoption and ‘permanent’ family or foster care are found unavailable. And many argue that children should be held for six months or longer while in- country solutions are pursued.
The Hague Conference on Private International Law issued a guide for interpreting the Hague Convention on Intercountry Adoption, which endorses UNICEF’s claims that in-country ‘permanent’ family or foster care should be preferred to international adoption (Hague Conference on International Law, 2008, pp. 29–30). Yet the Hague Convention had been generally understood to take an important step in the direction of validating international adoption by making it the preferred option over foster care.
Threats to International Adoption and to Children
Few press the arguments that international adoption is inherently wrong. Accordingly, the real threat to international adoption and to children is posed by UNICEF and others which claim they are not against international adoption, but simply for regulatory reform. Arguments against ‘abuses’, and for children’s heritage rights, sound reasonable to many.
But the UNICEF positions would, if accepted, radically limit children’s opportunities for finding homes. Moratoria closing down international adoption programs in response to alleged abuses may end up being permanent. Even if eventually lifted, children will in the meantime have been denied adoptive homes. In Guatemala, the current moratorium is denying homes to thousands per year.
Regulation prohibiting private intermediaries has been the death knell for international adoption in many countries, as those promoting this ‘reform’ well know. Critics find receptive audiences with their talk of eliminating the greedy lawyers and others who make a living arranging such adoption. But government bureaucrats are often responsive to pressures to keep children where they are, and reluctant to make adoption matches (Myers, 2009, p. 782). Many countries in South and Central America have banned private intermediaries, and have as a result largely eliminated international adoption. These include Bolivia, Chile, Ecuador, El Salvador, Honduras, Paraguay and Peru, which now place only a relative handful of children, and then only after long periods in damaging orphanages. Guatemala has enacted legislation eliminating private intermediaries in any future international adoption system.
Preferences for in-country options over international adoption deny or at best delay the adoptive placements that are typically only available abroad. There are limited prospects for adoption in poor countries. Desperately poor people are generally not in a position to volunteer for parenting through adoption. Poor countries are often devastated by war, disease and related chaos, making adoption additionally unlikely. Many Asian countries are characterized by a powerful bias for blood-linked parenting which discourages adoption. Minority race groups suffer severe discrimination in many countries, making it hard to place their children in-country.
A holding period for in-country adoptive home searches will thus generally at best delay placement, condemning children to live for additional time in destructive orphan- ages. And it reduces prospects for placement, since it is easier to place younger, less damaged children.
Preferences for what UNICEF calls permanent family or foster care are similarly dangerous. Foster care does not exist as a meaningful option in most sending countries – unparented children are relegated to orphanages. Nor are poor countries likely to build a nurturing permanent foster care system. Such foster care as now exists in poor countries is often quite terrible, ‘a euphemism for cottage-industry-level institutionalization’ (Wardle, 2005, p. 341). Foster care in the US, with all its resources, is notorious for bouncing children from one inadequate home to another. Social science evidence demonstrates that foster care would not serve children’s interests nearly as well as international adoption (Bartholet, 1999, pp. 96–97).
Positions favoring family preservation, family reunification and kinship care over international adoption are similarly dangerous. Poor countries will not soon create adequate welfare and employment systems enabling parents to raise all the children they produce. Family preservation and reunification efforts will be necessarily limited. Kin who have not already stepped forward are not likely to pro- vide placements. Children removed because of maltreatment are likely to do better in adoption than if reunified with parents (Bartholet, 1999, pp. 81–110, 154–159, 176– 204).
We should of course work to improve social welfare systems in poor countries and to address the terrible chaos characterizing the lives of those whose children end up in institutions and on the streets. But this kind of change will not happen in time to provide homes for today’s unparented children.
Nor is there reason to think that denying children homes in international adoption will help solve larger social problems. While there are no good studies examining the results of recent moratoria, anecdotal evidence indicates that they may simply cause more suffering. Reports show drastic increases in the number of abandoned children and ongoing horrendous conditions in orphanages in Vietnam, Guatemala and Romania in the wake of their moratoria (Center for Adoption Policy, 2009; Worthington, 2009, pp. 568–583). An advertisement published by 33 NGOs denounced recent conditions in Romanian orphanages: ‘Abandoned babies are often confined to steel cribs 23+ hours a day for months or years. Without normal stimuli, without the ability to crawl, play, interact or be loved, they suffer immense, often irreversible psychological and physical damage’ (Mitchell, 2009).
If the critics of international adoption prevail, tens of thousands of children who could be placed yearly will be denied homes. International adoption will be limited to last-resort status, with a relative handful of children released, and this only after damaging orphanage stays.
2. Why the International Adoption Critics are Wrong
Accepted Human Rights Principles Require that Children’s Best Interests Govern
Core international human rights law makes children’s best interests the guiding principle in matters related to children and adoption. The Convention on the Rights of the Child (CRC) provides generally that ‘the best interest of the child shall be a primary consideration’ (Article 3), and in adoption shall be ‘the paramount consideration’ (Article 21).1 The Hague Convention on Intercountry Adoption provides that ‘intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights’ (Article 1). Courts in South Africa, India and Malawi have concluded that the CRC and related international human rights law make children’s best interests determinative in international adoption matters.2
International Adoption Serves Children’s Best Interests and Most Basic Human Rights
Human beings need parental care for a prolonged period to survive physically and to develop mentally and emotionally. Even the best institutions fail to provide the care that infants and young children need (Bartholet, 2007a, p. 346 and n. 25, pp. 347–348).
International law makes central the child’s human right to grow up in a family. The CRC preamble describes the family as ‘the natural environment for the growth and well-being of ... children’. The CRC and the Hague Convention on Intercountry Adoption include in their preambles that ‘the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding’.
The CRC also requires that member states give children who cannot be raised by their original parents adequate substitute care, and protect children against the conditions characteristic of institutional care. It says that an unparented child ‘shall be entitled to special protection and assistance’, ‘alternative care’ (Article 20) and ‘such protection and care as is necessary for his or her well-being’ (Article 3). It says that ‘every child has the inherent right to life’ and to ‘survival and development’ (Article 6). It grants children affirmative rights to health, a standard of living adequate for appropriate development, and education (Articles 24, 27 and 28). It requires states to ‘protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation’ (Article 19). It provides that ‘no child shall be subjected to torture or other cruel, inhuman or degrading treatment’, or ‘deprived of his or her liberty unlawfully or arbitrarily’ (Article 37).
Accordingly, core human rights principles give children the right to true family care. Unparented children have a right to be placed in international adoption if that is where true families are available. They have a right to be liberated from the conditions characterizing orphanages, street life and most foster care (Bartholet, 2007b; Dillon, 2003; Wardle, 2005, pp. 353–360).
Courts have recognized these principles in decisions involving international adoption. The Supreme Court of India found a right to international adoption despite the absence of statutory recognition of such adoption, relying on international human rights law and related provisions in the Indian Constitution. It reasoned:
[C]hildren need special protection because of their tender age and physique, mental immaturity and incapacity ... [T]hat is why there is a growing realization in every part of the globe that children must be brought up ... under the tender care and attention of parents.
Every child has a right to love and be loved and to grow up in an atmosphere of love and affection and of moral and material security and this is possible only if the child is brought up in a family ...
[I]f for any reason it is not possible for the biological parents or other near relative to look after the child ... the next best alternative would be to find adoptive parents.
[I]f it is not possible to provide them in India decent family life where they can grow up under the loving care and attention of parents ... there is no reason why such children should not be ... given in adoption to foreign parents (Lakshmi Kant Pandey v. Union of India, 1984, pp. 474, 476).
The Malawi High Court, in upholding Madonna’s first adoption despite the residence requirement read by some to forbid international adoption, also relied on international human rights law, both the CRC and the African Charter on the Rights and Welfare of the Children. It granted her adoption of David Banda based on finding that Madonna offered the true home that was unavailable in Malawi:
[A] lot of children are in dire situation of material deprivation characterized by poverty, lack of access to essential nutrition, lack of access to education, lack of access to proper sanitation and lack of access to adequate health care. This is the inescapable reality in Malawi as in most third world countries. And to argue that we will soon find adequate solutions for all our deprived children is to assert a shameless and insolent lie.
The infant in the instant case was among our many materially deprived children whose only remaining parent was forced, because of his circumstances, to place him at an orphanage ... In seeking to adopt ... petitioners are not therefore in the way of any permanent domestic solution for the infant (Adoption case No. 2, 2008, p. 16).
The Malawi Supreme Court of Appeal granting Madonna’s second adoption, involving ‘Mercy’ James, relied similarly on human rights law:
We do not think that ... inter country adoption is a last resort alternative ... [T]here are only two options. She can either stay in Kondanani Orphanage and have no family life at all or she can be adopted by the Appellant and grow in a family ... In our Judgment the welfare of infant CJ will be better taken care of by having her adopted by the foreign parent rather than for her to grow up in an orphanage where she will have no family life, no love and affection of parents (in Re: CJ A Female Infant, 2009, pp. 24–25).
The Constitutional Court of South Africa stated, in approving an international adoption, that the CRC ‘seems to accept the notion that ‘‘[e]nsuring that a child grows up in a loving, permanent home is the ultimate form of care a country can bestow upon a child’’, even if that result is achieved through an inter-country adoption’ (A. D. & Another v. D. W. & Others, 2008, p. 200).
International adoption is about placing tens of thousands of infants and young children who need homes with people who want to provide them. There are many millions of children worldwide who need homes because they have been orphaned, abandoned or removed. Almost all are destined to live either in orphanages or on the streets if they are not adopted internationally. Estimates indicate that there are 143 million orphaned children (Joint UN Pro- gramme, 2004, p. 7), over 8 million living in orphanages (Secretary-General, 2006, p. 16) and some 100 million street children with no available caregivers (Bartholet, 2007b, pp. 182–183; Mitchell, 2009).
UNICEF and other critics of international adoption say that only a small percentage of orphanage children are true orphans, with both parents dead, and only these should be eligible for adoption. But those whose parents are not dead have either been removed for maltreatment or abandoned. The overwhelming majority have no meaningful relationship with their parents, and no likelihood of ever returning home.
UNICEF and others also say that most orphanage children are older and suffer disabilities, whereas prospective adopters prefer healthy infants. But many infants are placed in orphanages. It is restrictive adoption policies and destructive orphanage conditions that produce so many older children with disabilities. And while prospective adopters generally prefer healthy infants, many will adopt older children with disabilities.
At its peak in 2004, international adoption placed some 45,000 children. This is a small number by comparison to those in need. But the lives of those placed are radically trans- formed for the better. And the number could easily be multiplied many times if we developed policies facilitating rather than restricting placement. Surveys show significant percent- ages of adults in economically privileged countries interested in adopting. Some 9.9 million of ‘ever married’ women in the US alone have considered adoption, and only 1 per cent of these now adopt in a given year (Wardle, 2005, pp. 345–346).
The extreme contrast between the homes international adoption offers and orphanage or street life should make unnecessary any debate as to what best serves children. Most orphanages are terrible places, where children learn not to cry because crying brings no response. A recent article describes a typical institution for children under three in Bulgaria:
It is the smell that [first] assaults you – filthy nappies, unwashed babies, rotting flesh. Then you are hit by the silence, an eerie, unnatural silence, the silence of babies who have given up hope of ever being consoled, cuddled or comforted. It is the dreadful quiet of starving, neglected, unloved children waiting to die ... The children in this particular wing have no human contact. They are fed lying on their backs, and have their nappies changed only when there happens to be a supply of new ones. Not one single word is uttered to them, so none of them is able to talk. This is how they live, and this is how they die (Monckton, 2009).
Studies document how destructive even the better orphanages are, producing lifelong damage even for many of those eventually adopted. Developmental psychologists explain how essential nurturing human interaction is for infants to develop normally. The new science of early brain development demonstrates in dramatic color slides how different the brains of children raised for two years in an orphanage look as compared to the brains of children raised with parents (Bartholet, 2007a, pp. 346–348). The World Health Organization recommends that even ‘when high-quality institutions are used as an emergency measure ... the length of stay should be no more than 3 months’ (Browne et al., 2004, p. 11). Street children often die early, and those who live suffer maltreatment, disease, exploitation for sex, labor and child soldiering, and trafficking for these purposes (Wardle, 2005, pp. 325–331).
International adoption provides the only hope for a loving and nurturing home for most children in need. And studies show that international adoption works well for children. Those placed in early infancy do essentially as well as non-adopted children. Those placed after suffering terrible damage from wartime trauma or orphanage life are helped to overcome deficits, with many able to live normal lives.
The expenses for international adoption are paid by adoptive parents. Neither sending nor receiving countries need divert significant resources to finance such adoption. Sending countries are also relieved of the costs of institutionalization for all those placed, freeing up resources to serve the needs of others. Moreover, international adoption produces significant additional resources for poor countries and their people. Adoptive parents pay fees to agencies and orphanages, some of which go to improve orphanage conditions. China charges an orphanage fee for each adoption of $3,000–5,000. Given the 7,900 children adopted into the US from China in 2005, and assuming the minimum $3,000 fee, this meant $23,700,000 to improve orphanage conditions (Bartholet, 2007b, pp. 184–185).
International adoption also triggers significant voluntary contributions by individuals and agencies to improve conditions in sending countries. And the exposure international adoption brings creates new consciousness about these countries’ problems, and thus the potential for a wide range of helpful action by individuals and governments (Bartholet, 2007a, pp. 350–352).
One example among thousands of the productive inter- action between international adoption and broader reform is the work of Dr Jane Aronson, whose understanding of the problems suffered by orphanage children began with her work as a pediatrician for international adoptive families. Dr Aronson has worked on her own and with adoptive parent Angelina Jolie to develop and fund organizations that serve the needs of more than 10,000 children world- wide, building foster care and improving orphanage conditions. Her ‘Orphan Rangers’ provides visits to orphanage children who would otherwise experience no loving human contact (Worldwide Orphans Foundation, 2009).
The Malawi Supreme Court that approved Madonna’s second adoption recognized the interaction between her two adoptions and the many millions of dollars she had donated to improve conditions for other poor children in Malawi. It noted, in concluding that she satisfied Malawi’s residence requirement:
Appellant is not a mere sojourner in this country but has a targeted long term presence aimed at ameliorating the lives of more disadvantaged children in Malawi ... [S]he is not here only to adopt infant CJ but to also implement her long term ideas of investing in the improvement of more children’s lives (in Re: CJ A Female Infant, 2009, p. 23).
Adoption Abuses Do Not Justify Limiting International Adoption
Adoption abuses exist, as abuses exist in every area. But there is no persuasive evidence that adoption abuses are extensive.
Nor is there reason to think they would be extensive. Critics claim that adoption facilitators wrongfully take babies by paying money to induce birth parents to surrender, and even by kidnapping. The sad truth is that even if some are guilty of such crimes – and these are crimes everywhere – there is no real need to buy or kidnap children, since there are so many millions of desperate, impoverished birth parents incapable of caring for their children, and so many millions of orphaned and abandoned children. Law reform designed to facilitate lawful adoption would do much to reduce such abuses as do exist. The Hague Conference Report providing the rationale for the Hague Convention on Intercountry Adoption made this very point, finding that difficulties in accomplishing adoption created pressure for corrupt practices that would not exist in more effective systems facilitating adoption (Hague Conference on Private International Law, 1990, p. 188).
Better enforcement of laws prohibiting adoption abuses is the obvious additional answer. When parents violate laws prohibiting child maltreatment, we do not shut down the system that sends newborns home with their parents. We call for better enforcement of laws prohibiting maltreatment.
International adoption critics argue that it is naive to think adoption laws can be enforced in certain countries, given corruption and limited governance capacities. But even if adoption abuses occur on more than an occasional basis, and even if eliminating them would be hard, shutting down international adoption is wrong. Zero tolerance for adoption abuses may sound good but it will hurt children. The evils involved in such abuses must be weighed against the far more significant evils involved in denying children homes.
The situation in Guatemala is illustrative. Claims that adoption intermediaries were paying birth mothers helped shut down international adoption. But there is no good evidence that these mothers were induced by money to surrender children they would otherwise have kept. Given their desperate poverty and limited access to birth control, virtually all mothers given payments would likely have surrendered regardless. There is no terrible evil in a poor birth parent who would in any event surrender a child being given funds that will help her survive. Shutting down international adoption programs in Guatemala deprives thousands of children per year of the chance to grow up in nurturing homes. That is an evil that should count for more.
Baby buying is generally not treated as a serious evil in non-adoption contexts. Commercial surrogacy is the institution in which true baby buying takes place systematically. Surrogacy contracts specify that the woman who provides pregnancy, childbirth services and often her egg will receive money in exchange for turning over the baby, and terminating her parental rights. Commercial surrogacy is flourishing in the US and many other countries, and international commercial surrogacy is spreading rapidly, as prospective parents turn to poor countries for inexpensive surrogacy services. Some countries that have severely limited international adoption are now engaged in a rapidly expanding international surrogacy business. Private lawyers who used to arrange international adoption from Guatemala are now earning a living arranging for Guatemalan women to get pregnant in order to surrender for a fee their babies and their parenting rights. India, which has significantly restricted international adoption, including by requiring that 50 per cent of all adoptions be in-country (Dohle, 2008, p. 131), is on the verge of regularizing a booming international surrogacy business through facilitating legislation (Gentleman, 2008; Smerdon, 2008, p. 15). Russia, which has also significantly restricted international adoption, is enthusiastically embracing international surrogacy (Lee, 2009, p. 284). UNICEF and other critics of alleged baby buying in the adoption context are interestingly silent about international surrogacy.
Concepts of Nationalism and Heritage Do Not Justify Limiting International Adoption
International adoption critics treat children as necessarily ‘belonging’ to their countries of birth. They defer to national governments as having important rights at stake, and accord overwhelming significance to the often arbitrary lines separating countries. This translates into policy preferences for virtually all in-country options as compared to out-of-country adoption, and into mandatory holding periods which delay and often entirely deny such adoption.
But children’s fundamental human rights to grow up in a nurturing family should trump nation-state rights to hold on to children. Moreover, keeping unparented children in their countries of origin does nothing to actually strengthen the economic and political situation of those countries. It is simply a symbolic way for the powerless to stand up to the powerful, for countries formerly victimized by colonialism to make an anti-colonialist statement. And it exploits the least powerful of all, the children of the poorest groups in these countries. Ironically these are often the children of the indigenous groups that were the primary victims of colonialism, while the rulers who decide to hold on to these children are often the descendants of the colonial invaders.
International adoption critics say they promote in-country solutions because this serves children’s heritage rights. But this is retrograde thinking which ill-serves children’s real needs. Children are not defined in some essentialist way by the particular spot where they were born. Science provides no basis for believing that children are better off if raised in their community of origin (Bartholet, 2007a, pp. 360–361). Nor does common sense. Was Barack Obama, the biological son of a father born in Kenya and a mother born in Kansas, deprived of his heritage by being raised in Hawaii and Indonesia? Was he deprived or enriched by virtue of his complex national, racial and ethnic heritage? His testimony, as revealed in books and speeches, indicates that he feels enriched and empowered to act more effectively.*
We live in a world increasingly defined by globalization, with adults eager to cross national boundaries for economic and other opportunities. Some 1.6 million per year immigrate to the US alone, and immigrants constitute 12.5 per cent of the US population.
In this world it would be laughable to argue that adults should be prevented from leaving their country of birth so they could enjoy their heritage rights. It would be thought outrageous for nations to hold on to adults behind walled boundaries because they constitute ‘precious resources’. Heritage and state sovereignty claims can only be made in the international adoption context because children are involved, and children are peculiarly incapable of protest- ing. Truly honoring children’s rights would require abandoning such talk, treating children as full members of the global community and responding to their most fundamental needs.
It is understandable that UNICEF and others promote nation-state rights to hold on to children, and that many countries demand these rights. UNICEF was created in a post-colonial era that placed high value on nationalism. Countries emerging from colonialist oppression can easily see adoptions by foreigners as a modern version of colonialist exploitation.
Also, international law contains ‘subsidiarity’ provisions which accord states sovereignty rights over their human child resources. The CRC and the Hague Convention allow countries to deny adoption altogether. The CRC prefers in-country options that include foster and other ‘suitable’ care to out-of-country adoption (Article 21(B)). The Hague Convention prefers in-country to out-of-country adoption (Preamble; Article 4).
Interestingly the first major international recognition of the rights of the child showed no such deference to state sovereignty, but made child rights truly primary. The 1924 Declaration of the Rights of the Child provided simply:
[M]en and women of all nations, recognizing that mankind owes to the child the best that it has to give, declare and accept it as their duty that, beyond and above all considerations of race, nationality or creed:
I. The Child must be given the means requisite for its normal development, both materially and spiritually; II. The child that is hungry must be fed; the child that is sick must be helped; ... and the orphan and the waif must be sheltered and succoured;
III. The child must be the first to receive relief in times of distress; IV. The child must be put in a position to earn a livelihood and must be protected against every form of exploitation (Declaration of Geneva, 1924, p. 43).
The CRC and Hague Convention subsidiarity provisions provide the primary basis for arguments that anti-international adoption positions are consistent with children’s human rights. But these subsidiarity provisions are inconsistent with the core principles endorsed in these same Conventions and elsewhere in human rights law, principles making the child’s best interest primary and recognizing the child’s right to grow up in a nurturing family as fundamental.
Courts in several international adoption cases have con- fronted this inconsistency, and concluded that the best interests principle and the child’s right to family trump the subsidiarity provisions. Two South African decisions found that regulations prohibiting out-of-country adoption violated international human rights law and the South African Constitution’s children’s rights guarantees (Minister of Welfare and Population Development v. Fitzpatrick and Others, 2000;3 A. D. & Another v. D. W. & Others, 2008). They found that ‘the subsidiarity principle itself must be seen as subsidiary’ to the principle making the child’s best interest paramount (A. D. & Another v. D. W. & Others, 2008, p. 204).4
The Malawi decisions approving Madonna’s adoptions similarly found that the best interests principle trumped subsidiarity provisions under international human rights law. In approving Madonna’s second adoption despite Malawi’s residency requirement, the court stated:
Colonialism and colonial outposts in their original format are things of the past. A new international legal order has taken root. Globalization and the global village with all its legal ramifications is now what preoccupies legal minds ... Residence ... is no longer tied to the notion of permanence ... [A] man may have more than one place in which he resides ... We do not think that ... inter country adoption is a last resort alternative
... [B]y her lifestyle [Madonna] is herself a child of the world (in Re: CJ A Female Infant, 2009, pp. 21, 24, 26).
The original understanding of subsidiarity has been perverted by those who use it to oppose international adoption. Subsidiarity is designed to serve individual human rights, not promote state sovereignty. Subsidiarity requires that children be brought up if possible in their first community, their family of origin, because the child’s most fundamental needs are served in a family. If children cannot be brought up in that family, subsidiarity demands they be placed in another family to enjoy that same sense of intimate community (Carozza, 2003, p. 38).
The US has taken important steps to jettison old ideas that children ‘belong’ to their groups of origin. The federal Multiethnic Placement Act5 rejected the idea that black children belonged to the black community, and so should be kept in black foster or adoptive families, in preference to trans-racial placement. The Act vindicates children’s rights to be placed in the earliest available permanent nurturing home, regardless of race. The Adoption and Safe Families Act6 rejected the idea that children belonged to their birth parents regardless of fitness to parent. The Act vindicates children’s rights to be raised in a permanent nurturing home, reducing the priority on family preservation, limiting time in foster care and expediting adoptive placement. There is also increasing support in the US for the idea that children have a constitutional right to nurturing parenting, and thus to adoption when it represents the route to such parenting (Dwyer, 2009; Woodhouse, 2005; in Re John Doe and James Doe, 2008). 7
3. A Way Forward
The International Adoption Policy Statement
In the face of the current crisis, leading human and child rights experts have developed and endorsed a Policy Statement supporting the principle that children’s most basic rights are to grow up in the true family that is often available only in international adoption. It recognizes such adoption as preferable to foster and institutional care, and rejects hold- ing periods in favor of placing children who cannot be raised by their birth parents as soon as possible, whether in or out of country. It calls for addressing adoption abuses by enforcing and where needed strengthening laws governing misconduct, rather than eliminating private intermediaries or otherwise restricting international adoption.
This Policy Statement was endorsed as of June 2009 by over 130 legal academics specializing in human and child rights, and six child rights and adoption policy organizations (http://www.law.harvard.edu/programs/about/cap/). The Human Rights Center of the powerful American Bar Association developed a related resolution supporting inter- national adoption, formally adopted by the ABA in 2008. These developments demonstrate that those opposing international adoption using child human rights rhetoric have no lock on the child human rights position.
This Policy Statement is consistent with both the CRC and the Hague Convention, if those are interpreted to prioritize the child’s best interests and most fundamental human rights. It is consistent with the Hague Convention’s preference for in-country over out-of-country adoption: the Statement simply provides that any such preference be implemented through a strategy that does not delay placement. And the Hague Convention specifically allows for private intermediaries, so long as they operate under the aegis of a Central Authority.
The Inter-American Commission on Human Rights 2009 Hearing on Unparented Children and International Adoption
This Commission held a hearing on these issues on 6 November 2009, addressing what petitioners in the case assert are the core human rights issues involved, namely children’s rights to grow up in a nurturing family so they can fulfill their human potential, and their right to be liberated from the conditions characterizing orphanages, street life and most foster care (http://www.law.harrard.edu/ programs/about/cap/ia/iacommisionhearingnov09.html). Petitioners argue that these rights include the right to be placed in international adoption if that is where families are available. This hearing is a historic first, with the focus on the child’s most fundamental human rights, rather than the human rights of parents and the sovereignty of states. My hope is that it marks the beginning of a trend in the human rights world.
Those who care about children should act now to preserve and promote international adoption. It is the best option for existing unparented children. It serves the interests of birth parents who care about the children they cannot raise. It brings new resources into poor sending countries to help improve conditions for those left behind. It fits with a vision of a world in which we recognize children as citizens of a global community with basic human rights entitlements.
1. G.A. Res. 44 ⁄ 25, UN GAOR, 44th Sess., Supp. No. 49, at 166, UN Doc. A ⁄ 44 ⁄ 49 (1989). See also African Charter on the Rights and Welfare of the Child, OAU Doc. CAB ⁄ LEG ⁄ 24.9 ⁄ 49 (1990), entered into force 29 November 1999 (Article 4 providing generally that best interests of child be the primary consideration, and Article
24 providing that in adoption best interests of child be the para-
mount consideration). 2. See A. D. & Another v. D. W. & Others 2008 (3) SA 183 (CC) (S.
Afr.); Lakshmi Kant Pandey v. Union of India, A. I. R. 1984 (S. C.) 469; in Re: CJ A Female Infant of C⁄o PO Box 30871, Chichiri, Blantyre 3 (Msca Adoption Appeal No. 28 of 2009)  MWSC 1 (12 June 2009); Adoption case No. 2 of 2006 in the matter of the Adoption of Children Act (CAP.26:01) and in the matter of David Banda (a male infant) (Malawi High Court) (28 May 2008).
3. Minister of Welfare and Population Development v. Fitzpatrick and Others 2000 (3) SA 422 (CC) (S. Afr.).
4. These decisions, like the Malawi decisions, had to contend with subsidiarity language in the African Charter on the Rights and Welfare of the Child more extreme than the CRC: ‘inter-country adoption ... may, as the last resort, be considered ... if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin’ (Article 24(b), emphasis added).
5. Howard M. Metzenbaum Multiethnic Placement Act of 1994, Pub. L. No. 103-382, Pt. E, Subpt.1, 108 Stat. 4056 (1994), amended by Small Business Job Protection Act of 1996, Pub. L. 104-188, 110 Stat. 1755 (1996) (current version at 42 U. S. C. 1996(b) (2000)).
6. Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115 (codified in scattered sections of 42 U. S. C.).
7. In Re John Doe and James Doe (2008) Florida Circuit Court, Juvenile Division, 25 November.
*Note: Changes were made to the article on 20 December 2010 after first publication online on 27 January 2010. Obama’s birth place has been corrected from Kansas to Hawaii.
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Elizabeth Bartholet, Morris Wasserstein Professor of Law and Child Advocacy Program Faculty Director, Harvard Law School. For articles by the author documenting claims made here, see Bartholet 2007a, 2007b.
2010 London School of Economics and Political Science and John Wiley & Sons Ltd. Global Policy (2010) 1:1