Human Rights in International Adoption: A Call for Greater Enforcement

Since November has been declared Children’s Rights Month, I thought I would share an older paper (2014) I wrote on children’s rights during the appropriately designated month. Just a little over a week ago, on November 20, International Children’s Day was celebrated worldwide as a commemoration to the anniversary of the UN General Assembly’s adoption of the Convention on the Rights of the Child (CRC). But what exactly does the CRC say about international adoption, and how is it protecting or not protecting the rights of children this month and every month?

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From Madonna to Katherine Heigl to Brangelina to the next door neighbor, international adoption has become popularized among both celebrities and common citizens of many Western countries. Through the hyper-visibility of interracial family photos and agency focused promotion of international adoption, the mainstream media has oftentimes glorified adoption as a heartwarming, life saving, altruistic act of love. With well-meaning intentions, this is the narrative that many adoptive families have bought into, motivating them to adopt a child and an image of contributing to humanitarian aid through international adoption. This touching facade belies a much less charming reality of child trafficking and abduction, coercion of first families, fraud, and corruption in the adoption industry. The unregulated nature of international adoptions leads to the commodification of children and abusive adoption practices that follow a chain of supply and demand.[1] In this paper, I argue that the efforts made to enforce human rights in international adoptions have been undermined both by national bodies’ failure to implement international standards of children’s rights and international bodies’ failure to hold states accountable.

This paper will examine the two major United Nations conventions that work to enforce human rights in international adoptions: the Convention on the Rights of the Child (CRC) and the Hague Convention on the Protection of Children in Cooperation and Respect of Intercountry Adoption (the Hague Convention). Through addressing the weak language in the CRC as well as the inability of its monitoring body, the Committee on the Rights of the Child (The Committee), to hold states accountable for their violations, I show that this convention has been ineffective in safeguarding the rights of the child in international adoption. The paper will then discuss the manipulation of the Hague Convention in sending countries and lack of transparency for receiving countries, and conclude with suggestions for making international adoption a more ethical practice, compliant with international standards of human rights.

Established in 1989, the CRC is the most universally supported U.N. Convention, with ratifications from every country in the world except the U.S., South Sudan, and Somalia. This convention lays out the precautions deemed necessary to ensure a safe and good life for children worldwide, with special provisions made in articles 20 and 21 relating to cases of international adoption. Article 20, Section 1 specifies that there should be special protections and assistance provided by the state in cases of children who have been temporarily or permanently removed from their first families.[2] These protections include the right to foster placement, kafalah of Islamic law,[3] adoption, or if necessary placement in suitable institutions for the care of children.[4] When considering these solutions, “due regard” should be given to continuing the child’s upbringing through their ethnic, religious, cultural and linguistic backgrounds.[5]

Article 21 compels states to ensure that adoptions happen in the best interest of the child. Adoptions should be authorized by competent authorities, in accordance with the law, on the basis of pertinent and reliable information concerning the child’s status, as well as the parents and relatives.[6] Another key point from Article 21 of the CRC is the recognition of inter-country adoption as “an alternative means of child care” only if the child cannot be placed in a foster or adoptive family or cannot in any suitable manner be cared for in the child’s country of origin.[7] Furthermore, Article 21 of the CRC asks states to “take all appropriate measures to ensure that, in intercountry adoption, the placement does not result in improper financial gain for those involved in it.”[8] Lastly, the CRC compels states to promote the objectives of the article through bilateral or multilateral arrangements to ensure that children placed in other countries have been so in a competent manner.[9]

Despite these provisions, child abduction and trafficking have plagued the international adoption system for a long time, notably recorded in Vietnam, Romania, and much of Latin America.[10] China’s reputation as a “cleaner” source of children was shattered when news of the 2005 Hunan scandal broke out. This is one of the most famous cases that violates almost every one of these rights established in the CRC. Between the years 2002 and 2005, six orphanages were identified placing over 1,000 trafficked babies with Western adoptive parents, earning roughly $3,000 in orphanage donations for each child.[11] In the cases of these children, money was exchanged between the orphanage and Western adoptive parents, who were prioritized over domestic couples because of the larger financial contributions. Money also flowed to the traffickers from orphanage officials, as well as between orphanages, who would buy children from each other when occupancy was low. Though the sheer shock of the number of falsified documents reflecting abandonment sites and finders drew much attention at the time, discussion on the issue has nearly halted ten years later. According to a New York Times article, “adoptive parents and adoption agencies have powerful incentives not to talk about trafficking or question whether a child was given up voluntarily, especially given how difficult it is to know for certain. Such talk can unsettle the children or anger the Chinese government, which might limit the families’ future access to the country or add restrictions to future adoptions.”[12] Since the scandal, neither receiving countries nor China have made significant changes to the system.[13]

The Hunan scandal exposes the vulnerabilities of the international system and sheds light on one case that reflects the multitude of human rights violations of the current operations. Jini Roby from the School of Social Work at Brigham Young University details the most common ways in which the CRC is completely disregarded through the current international adoption systems:

“Children placed in institutions [are] denied their rights to ‘grow up in a family environment, in an atmosphere of happiness, love and understanding’ (CRC: preamble, ¶6; Hague Convention: ¶1); and their right to be cared for by their parents (CRC: Art. 7), to receive family preservation services (Hague Convention: ¶2; CRC: Art. 11), or to be placed in other family-based substitute care (CRC: Art. 20); the right to preserve their nationality and family relations (CRC: Art. 8). In the rush towards adoption, their right to a determination of the child’s best interest by competent authorities (CRC: Art. 9) [is] often violated.”[14]

With so many common violations of children’s rights, the strength of the document must be questioned. One of the greatest flaws of the CRC is the loose language, which takes away the possibility of tough enforcement. The excessive use of the word “should” instead of the more forceful “must,” implies that critical parts of the documents are gentle suggestions rather than requirements.[15] Article 20, section 3, for example, asks states to consider with “due regard” the cultural, religious, and linguistic background of children instead of requiring protection. Moreover, the insertion of phrases such as “if required,” “appropriate measures,” and “where appropriate” in the articles on adoption, weaken the international demands to merely suggestions left to individual states’ discretion. Annette Schmit of the Indiana University of Law articulates how this becomes a serious enforcement issue.

“The differing legislation from country to country creates difficulty preventing problems such as abducting children, exchanging a child for financial or material rewards to the birth family, child buying deliberately providing misleading information to birth parents to obtain their consent, providing false information to prospective adopters, falsifying documents, and obtaining favorable adoption decisions from corrupt local or central government officials.”[16]

Since the international adoption system is so reliant on interactions between countries, it is imperative that international understandings and regulations exist. The current lack of uniformity in the system means that improvements in one country do not equate to improvements in human rights systemwide, allowing for miscommunication between states as well as the flocking of agencies from one country to another with lower standards. This means rather than stopping their abuse, violators of human rights simply find new children to exploit.

An effort to combat child trafficking is made in the CRC, but regulation and monitoring of intercountry adoptions are essential pieces missing from the treaty.[17] For this reason, states have found it nearly impossible to rely on the CRC to help regulate intercountry adoption.[18] The CRC’s monitoring body, the Committee on the Rights of the Child (the Committee), has also failed to provide a strong way of countering the arbitrary language and lack of regulation in the CRC. Created in 1991, the Committee is a body of 18 independent experts, selected by the UN General Assembly, who monitor the implementation of the CRC by state parties.[19] The group convenes three times per year to review reports submitted by states for an initial review and every 5 years thereafter. The Committee then meets with a government delegation from the state for a formal review of its laws and practices, including an analysis of “progress achieved” and “factors and difficulties encountered.”[20] The Committee also issues recommendations regarding steps specific states should take in order to better meet the standards of the CRC.[21]

The pervasiveness of weak language in the CRC hinders the abilities of the Committee, as well. Article 44, Section 2 of the CRC reads “Reports should also contain sufficient information to provide to the Committee…”[22] This, again, implies a suggestion and does not provide clear indication of which information is required, leaving it up to the state to determine,[23] which one of the primary issues with this body. The Committee’s reliance on state parties necessitates that states are both committed to the implementation the Convention and truthful in their responses on implementation efforts thus far. The Committee is therefore dependent, to a certain extent, on state parties to self-monitor their own implementation and to report back to them truthfully on the progress made.[24] Ireland’s second report is a prime example of how this flaw operates in the system. While highlighting the publication of the National Children’s Strategy in 2000, which is the most significant initiative in Ireland to implement the CRC, the report was laden with incomplete policy actions and ambiguous language regarding future steps.[25] Because of the self promotional nature of the state report, it skimmed over areas where the government had been lax in the implementation of children’s rights, while enhancing and exaggerating the development of policies in favor of children’s rights.[26] The implication of this falsified report is that children’s rights are not being fully realized, even through the Committee on the Rights of the Child’s involvement.

Another major issue barring the success of the CRC is the length of time between required state reports. Currently, states must submit reports every five years after the initial review, however this time increment allows many human rights violations to occur with no intermediate checkup. A 2010 State Department report said there were “no reliable estimates” of the number of children kidnapped for adoption in China, but cited Chinese news media reports who estimated the figure to be as high as 20,000 children a year, many of whom are adopted illegally within the country, especially the boys.[27] At this rate, a span of five years between state reports would allow for as many as 100,000 trafficked children in China to go unnoticed. While reviewing state reports every year would be ideal, it is feasibly undoable. There should, however, be more frequent examinations conducted. State reports submitted every second or third year would certainly be an improvement over the current five.

The greatest promise to fix ethical issues in international adoption was the Hague Convention on the Protection of Children in International Adoption, established in 1993. The convention was created as a means of reinforcing and strengthening implementation of Article 21 of the CRC. The Hague Convention is intended to subvert the parent driven adoption market, and does so by laying out specific requirements for agencies to be accredited on a national level, advocating for more transparency in transactions, and promoting kinship or in-country adoption first. While the Hague Convention succeeds in some areas where the CRC fails and has required intercountry adoptions from Peru and Paraguay to cease for the most part, due to numerous violations, the Hague Convention has not lived up to its global promise.

Though there are currently 89 signatories to the Hague Convention, only 39 countries, just eight of which are non-European, have ratified the Convention.[28] This distinction is very important because countries who sign the 1993 treaty are under no obligation to ratify it, meaning that countries may choose to affirm their commitment to the policies established in the Hague Convention without becoming legally bound.[29] One of the fundamental challenges is encouraging states ratify the convention. This is due to three primary reasons. The first is that non-member countries have no legal incentive to accede to the Hague Convention and to be formally bound by the Hague Convention because adoptions will not be discontinued so long as blatant violations are not found and publicized.[30] As seen in the many atrocities from China, Guatemala, etc. states have been very successful in covering up unscrupulous actions for long stretches of time. The Hague Convention gives non-member states, such as new adoption hotspots Ethiopia and Uganda, further incentive to hide corruption in fear of not being able to implement the Convention, which would result in adoption restrictions or bans as a sending country.[31]

The second reason ratification is difficult is because member states continue their adoption relationships with non-member states. Not only do states have not legal incentive to ratify the Hague Convention, there is additionally, no financial pressure to do so. If member countries continue to adopt from non-member countries without any changes, there is not incentive for the non-member countries to deplete resources or begin the time-consuming process of implementing the Hague Convention standards.[32] Economies spurred by international adoption are not altered, and no financial exertion is required to keep that line of the economy open.

The last reason that prohibits more widespread ratification of the Hague Convention is that many states simply don’t have the means. Even if a non-member state wanted to implement the Hague Convention, a large number of developing countries with weaker political and legal systems struggle to make the provisions needed to adopt the Hague Convention while simultaneously dealing with other issues of political transformation, widespread poverty, violent crimes, inadequate police enforcement, or insufficient judicial systems.[33]

Ratification of the Hague Convention is just the first barrier to successful implementation of human rights in international adoptions. The Hague Convention, though a little stronger than the CRC, still leaves much of the adoption practices up to the state to establish and determine. Each signatory country is placed with the burden of developing its own practices and self-governing its intercountry adoption activities between Convention-nations.[34] The vague language in the Hague Convention also leaves defining the terms “adoption” and “adoptable” to states on an individual basis, providing minimal framework for protection.[35] Lastly, Article 4 of the Hague Convention offers a list of procedures needed to determine if international adoption is “in the best interests of the child,” but fails to provide a clear path of determining what specific factors constitutes “the best interests of children.”[36]

Some nations have serious and persistent problems even after the implementation of the Hague Convention and new laws.[37] These significant challenges differ for sending and receiving countries of international adoptees. The United States is perhaps the country that has benefited most from intercountry adoption, and arguably the most important receiving country. While the United States signed the Hague Convention in 1994, it did not implement any legislation to formally adhere to its standards until 2000, with the Intercountry Adoption Act (IAA).[38] Ratification came even later, in the year 2007.[39]

Even with ratification, serious problems remain for U.S. relations with international adoption. One significant downfall of the Hague Convention is that it only applies when both sending and receiving countries involved are member states.[40] Unfortunately, a significant number of the countries families in the U.S. adopt from are non-member countries.[41] An additional weakness lies in the inability of the IAA to address illegal practices in non-member states.[42] This means that while the U.S. can purport to uphold high standards of human rights in adoptions, the same protections cannot be guaranteed for the children and first families in the sending countries. After the shutdown of U.S./Guatemala adoption relations in 2009, many adoption agencies targeted Ethiopia and other African states as places to operate because of their non-signatory statuses.[43] The ability of unscrupulous agencies to move from one country to another country with fewer regulations challenges the effectiveness of the Hague Convention and the legitimacy of adoptions to the United States.

Increasing transparency, in both agency practices and money handling, is another area the Hague Convention touts, but fails to enforce. For example, when an agency in a sending country is denied national accreditation, no explanation is provided to the United States, meaning prospective adoptive parents cannot know on what ground the agency was denied.[44] Financial transparency is also severely lacking due to the U.S.’s lack of guidelines for appropriate salaries for agencies and employees. Money also becomes problematic when adoption agencies establish separate humanitarian giving organizations. The direct cash flow raises uncertainty about boundaries and dual relationships.[45] For these reasons, money exchange remains questionable in the United States, and it cannot be ensured that people and agencies are not profiting from the movement of children.

Sending countries face special sets of issues in relation to Hague Convention implementation, mostly because almost all intercountry adoptions are from low-resource, developing countries to countries that are more industrialized and wealthy.[46] Birthparents often have few resources, and birth mothers remain especially vulnerable due to their gender, young age, or minority status.[47] While the Hague Convention is designed to protect birth families through its requirement for freely given consent, there are no safeguards to ensure that consent is informed and given freely, that relinquishment is understood in relation to birth families’ cultural values, and that Western notions of individual rights are consistent with the process of obtaining informed consent.[48] A major flaw in the Hague Convention is the lack of a universal definition of adoption. Instead this is left to the individual state to determine.[49] This is detrimental to birthparents’ rights, visible in the Marshall Islands, where more than 80% of birth mothers who had relinquished their children believed they would come back at age 18.[50] Birthparent susceptibility can again been seen in culturally inappropriate counseling. Access to counseling for birthparents is required by Article 4 of the Hague Convention,[51] but in many cases it is unavailable or biased. One woman in India, a signatory country, recalled the counseling she received promoted child relinquishment as the only option.[52] The preamble of the Hague Convention reiterates the CRC’s stance on family preservation by stating that “each state should take, as a matter of priority, appropriate measures to enable the child to remain in the care of his or her family of origin.”[53] One key element that could be implemented to reinforce this ideal is the criminalization of tricking or coercing birth families.

In conclusion, the desire to regulate and enforce human rights in international adoptions is a noble and necessary goal, but remains simply that in its present state. Current efforts through the Hague Convention and the Convention on the Rights of the Child continue to be ineffective due to state bodies’ disregard for the human rights of those involved and the ineffectiveness of the international body to keep states in check. Both the CRC and the Hague Convention are lacking serious, non-arbitrary language and uniformity in policy, definitions, and enforcement. The Hague Convention should be amended to include stricter definitions and clarification of key terms, international enforcement mechanisms that do not rely on self-reporting, and provisions and sanctions for violators.[54] While the Hague Convention currently lacks a monitoring body, the CRC is dysfunctional in protecting children and their first families. Until these flaws are addressed and remedied, the Hague Convention and CRC represent only stacks of paper documents that purport to protect people involved in international adoption, but in reality have very limited effects.[55] The Hunan scandal in China where over 1,000 children were abducted and sold into adoption, the 2009 incident in Vietnam that exposed 16 traffickers who were selling more than 250 babies for international adoption, and the 2010 New Life Children’s Refuge case where Baptist missionaries took 33 children, most of whom were not orphaned, out of Haiti, all speak to the failures of the current methods of human rights enforcement in international adoption. Serious reform to policies, procedures, and paradigms are needed in order for international adoptions to be considered ethical on any level.

Bibliography

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Kimball, Caeli Elizabeth. “Barriers to the successful implementation of the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption.” Denv. J. Int’l L. & Pol’y 33 (2004): 561.

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Schnitzer-Reese, Ericka A. “International Child Abduction to Non-Hague Convention Countries: The Need for an International Family Court.” Nw. UJ Int’l Hum. Rts. 2 (2004): 7-8.

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1 Karen Smith Rotabi and Judith L. Gibbons, “Does the Hague Convention on Intercountry Adoption adequately protect orphaned and vulnerable children and their families?.” Journal of Child and Family Studies 21, no. 1 (2012): 107.
2 UN General Assembly. Convention on the Rights of the Child, (1989). Accessed on March 28, 2014. http://www.ohchr.org/en/professionalinterest/pages/crc.aspx.
3 Kafala: a legal guardianship which allows a non-Muslim person to assume responsibility for the protection, education and maintenance of an abandoned child, but which prohibits a non-Muslim from formally adopting or assuming custody of that child.
4 UN General Assembly. Convention on the Rights of the Child, Article 20.
5 UN General Assembly. Convention on the Rights of the Child, Article 20.
6 UN General Assembly. Convention on the Rights of the Child, Article 21.
7 UN General Assembly. Convention on the Rights of the Child, Article 21.
8 UN General Assembly. Convention on the Rights of the Child, Article 21.
9 UN General Assembly. Convention on the Rights of the Child, Article 21.
10 Leland, John. “For Adoptive Parents, Questions Without Answers.” New York Times (New York City, NY), September 16, 2011. Accessed April 30, 2014. http://www.nytimes.com/2011/09/18/nyregion/chinas-adoption-scandal-sends-chills-through-families-in-united-states.html?pagewanted=all.
11 Patricia J. Meier, and Zhang Xiaole. “Sold into adoption: the Hunan baby trafficking scandal exposes vulnerabilities in Chinese adoptions to the United States.” Cumb. L. Rev. 39 (2008): 87.
12 Leland, John, “For Adoptive Parents, Questions Without Answers.”
13Patricia Meier and Xiaole Zhange, “Sold into Adoption,” 90.
14 Jini L. Roby and Jim Ife. “Human rights, politics and intercountry adoption An examination of two sending countries.” International social work 52, no. 5 (2009): 661-671.
15R. Kiersey and N. Hayes. 2010. “Reporting the Rhetoric, Implementation of the United Nations Convention on the Rights of the Child as Represented in Ireland’s Second Report to the UN Committee on the Rights of the Child: A Critical Discourse Analysis”.CHILD CARE IN PRACTICE. 16 (4): 339.
16Schmit, Annette. “The Hague Convention: The problems with accession and implementation.” Indiana Journal of Global Legal Studies 15, no. 1 (2008): 375-395.
17Kimball, Caeli Elizabeth. “Barriers to the successful implementation of the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption.” Denv. J. Int’l L. & Pol’y 33 (2004): 561.
18Graff, Nicole Bartner. “Intercountry Adoption and the Convention of the Rights of the Child: Can the Free Market in Children Be Controlled.” Syracuse J. Int’l L. & Com. 27 (2000): 405.
19 OHCHR. “Committee on the Rights of the Child.” United Nations Human Rights: Office of the High Commissioner for Human Rights. Last modified 2012. Accessed May 3, 2014. http://www.ohchr.org/EN/HRBodies/CRC/Pages/CRCIndex.aspx.
20 R. Kiersey and N. Hayes. “Reporting the Rhetoric”, 343.
21 R. Kiersey and N. Hayes. “Reporting the Rhetoric”, 343.
22UN General Assembly, CRC, Article 44.
23 R. Kiersey and N. Hayes. “Reporting the Rhetoric”, 338.
24 R. Kiersey and N. Hayes. “Reporting the Rhetoric”, 338.
25 R. Kiersey and N. Hayes, “Reporting the Rhetoric”, 341.
26 R. Kiersey and N. Hayes, “Reporting the Rhetoric”, 340.
27Patricia Meier and Xiaole Zhange, “Sold into Adoption” 90.
28Ericka A. Schnitzer-Reese, “International Child Abduction to Non-Hague Convention Countries: The Need for an International Family Court.” Nw. UJ Int’l Hum. Rts. 2 (2004): 7-8.
29 Caeli Elizabeth Kimball. “Barriers to the successful implementation of the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption.” Denv. J. Int’l L. & Pol’y 33 (2004): 561.
30 Annette Schmit. “The Hague Convention: The problems with accession and implementation.” Indiana Journal of Global Legal Studies 15, no. 1 (2008): 389.
31 Annette Schmit, “The Hague Convention: The problems with accession and implementation,” 391.
32Annette Schmit, “The Hague Convention: The problems with accession and implementation,” 390.
33Annette Schmit, “The Hague Convention: The problems with accession and implementation,” 390.
34 Karen Smith Rotabi and Judith L. Gibbons, “Does the Hague Convention Protect?”, 108.
35 Notesong Srisopark Thompson. “Hague is Enough?,” 460.
36 Karen Smith Rotabi and Judith L. Gibbons. “Does the Hague Convention Protect? 112
37 Karen Smith Rotabi and Judith L. Gibbons. “Does the Hague Convention Protect? 108
38Annette Schmit, “The Hague Convention: The problems with accession and implementation,” 390.
39 “United States Ratifies Hague Convention on Intercountry Adoption”. 2008. AMERICAN JOURNAL OF INTERNATIONAL LAW. 102 (1): 194.
40 Karen Smith Rotabi and Judith L. Gibbons. “Does the Hague Convention Protect? 109.
41O’Keeffe, Kate. “Intercountry Adoption Act of 2000: The United States’ Ratification of the Hague Convention on the Protection of Children, and Its Meager Effect on International Adoption, The.” Vand. J. Transnat’l L. 40 (2007): 1611.
42 Karen Smith Rotabi and Judith L. Gibbons. “Does the Hague Convention Protect? 112
43 Karen Smith Rotabi and Judith L. Gibbons. “Does the Hague Convention Protect? 109.
44 Karen Smith Rotabi and Judith L. Gibbons. “Does the Hague Convention Protect? 110.
45 Karen Smith Rotabi and Judith L. Gibbons. “Does the Hague Convention Protect? 110.
46 Karen Smith Rotabi and Judith L. Gibbons. “Does the Hague Convention Protect? 112.
47 Karen Smith Rotabi and Judith L. Gibbons. “Does the Hague Convention Protect? 112
48 Karen Smith Rotabi and Judith L. Gibbons, “Does the Hague Convention Protect?, 114.
49 Notesong Srisopark Thompson. “Hague is Enough?-A Call for More Protective Uniform Law Guiding International Adoptions.” Wis. Int’l LJ 22 (2004): 441.
50 Karen Smith Rotabi and Judith L. Gibbons, “Does the Hague Convention Protect?, 114.
51The Hague Conference on Private International Law. (1993). The Hague Convention on protection of children and co-operation in respect of Intercountry Adoption (1993). Accessed on May 3, 2014. Retrieved from http://www.hcch.net/index_en.php?act=conventions.pdf&cid=69.
52 Karen Smith Rotabi and Judith L. Gibbons, “Does the Hague Convention Protect?, 114
53http://www.hcch.net/upload/conventions/txt33en.pdf
54 Notesong Srisopark Thompson. “Hague is Enough?,” 455.
55 Notesong Srisopark Thompson. “Hague is Enough?,” 461.