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Intercountry Adoption: controversies and criticisms

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Abstract

Although the African continent is considered to be the ‘new frontier’ for intercountry adoption, this phenomenon does not only affect children in Africa but also impacts on children in other parts of the world. In recent years, intercountry adoption has become the subject of public debate, leading to a division between those who support this form of adoption and those who view it with a jaundiced eye. The recent death of a Russian boy, adopted into a family in the USA caused thousands of people to come out in support of a ban on adoption of Russian children by American citizens. Equally topical are: the Haiti adoption scandal after the devastating earthquake in 2010, where many children were airlifted from their home country and adopted by foreigners without the required safeguards taken into consideration – also referred to as an “international adoption bonanza” – and the controversial adoptions of children by celebrities such as Mia Farrow, Angelina Jolie and Madonna. In this article the relevant international and regional instruments, as well as the current status of intercountry adoption is presented.
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Intercountry adoption
controversies and criticisms
Professor Charlotte Phillips
Introduction
The African Child Policy Forum (hereinafter:
ACPF) organised the Policy Conference
Intercountry Adoption: Alternatives and
Controversies, in May 2012 at the United Nations
Conference Centre in Addis Ababa, Ethiopia.
Some 400 participants from around the globe took
part in the deliberations: government officials,
members of the African Committee of Experts on
the Rights and Welfare of the Child and the UN
Committee on the Rights of the Child,
representatives of NGOs, advocacy groups and
private adoption agencies as well as academics
and individual children’s rights activists. One of
the main objectives of the conference was to raise
awareness about the phenomenon intercountry
adoption in relation to the protection of African
children and the promotion of legal and policy
action, in line with the best interests of the child.
1
Although the African continent is considered to be
the ‘new frontier’ for intercountry adoption, this
phenomenon does not only affect children in
Africa but also impacts on children in other parts
of the world.
2
In recent years, intercountry adoption has become
the subject of public debate, leading to a division
between those who support this form of adoption
and those who view it with a jaundiced eye. The
1
African Child Policy Forum, Intercountry Adoption:
Alternatives and Controversies. The Fifth International Policy
Conference on the African Child. Conference Report. Addis
Ababa, Ethiopia, 2012.
2
African Child Policy Forum, Africa: The New Frontier for
Intercountry Adoption. Addis Ababa, Ethiopia, 2012.
death of a Russian boy, adopted into a family in
the USA caused thousands of people to come out
in support of a ban on adoption of Russian
children by American citizens.
3
Equally topical
are: the Haiti adoption scandal after the
devastating earthquake in 2010, where many
children were airlifted from their home country and
adopted by foreigners without the required
safeguards taken into consideration also
referred to as an “international adoption
bonanza”
4
and the controversial adoptions of
children by celebrities such as Mia Farrow,
Angelina Jolie and Madonna.
5
In this article the relevant international and
regional instruments, as well as the current status
of intercountry adoption will be presented.
1. Legal framework intercountry adoption
The divergent views countries held on intercountry
adoption, especially in relation to the best interest
of the child principle, led to the organisation of the
1971 World Conference on Adoption and Foster
Placement.
6
Following on this conference, the
Declaration on Social and Legal Principles relating
to the Protection and Welfare of Children, with
Special Reference to Foster Placement and
Adoption Nationally and Internationally was
drafted and subsequently adopted by the UN
General Assembly in 1986.
7
Despite the fact that
this Declaration contained a number of
stipulations on intercountry adoption, the factual
impact of this document was negligible. The
awareness of the topic had nevertheless been
raised and the two most important instruments
relating to children’s rights, the 1989 Convention
on the Rights of the Child (hereinafter: CRC) and
the 1990 African Charter on the Rights and
Welfare of the Child (hereinafter: ACRWC), both
contain provisions on intercountry adoption.
8
Articles 21 CRC and 24 ACRWC stipulate that the
best interest of the child should be the paramount
consideration. Furthermore, according to these
articles, intercountry adoption should only be
considered when there are no suitable
alternatives available in the child’s country of
origin such as foster care, national adoption or
residential care and intercountry adoption is to
be employed as a measure of last resort.
3
Find it here accessed on 18 March 2013.
4
Find it here accessed on 18 March 2013.
5
Find it here accessed on 18 March 2013.
6
S.A. Detrick, Commentary on the United Nations Convention
on the Rights of the Child, The Hague: Kluwer Law
International 1999, p. 332.
7
UN General Assembly, A/RES/41/85, 3 December 1986.
8
Article 21 CRC and article 24 ACRWC respectively.
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Due to the vast increase in the number of
international adoptions in the 1980s, the need for
a multinational approach in addition to the
aforementioned Declaration on foster placement
and adoption was acknowledged by the
international community.
9
Subsequently, the
Hague Conference on Private and International
Law set out to draft a convention specifically
aimed at intercountry adoption and in 1993 the
Convention on Protection of Children and Co-
operation in Respect of Intercountry Adoption
came into being (hereinafter: the Hague
Convention).
The Hague Convention outlines the minimum
standards for intercountry adoption procedures
and contains a Preamble and 48 articles. In the
Preamble, the importance of a child growing up in
a family environment is underlined: should a
suitable family environment not be available in the
country of origin, then intercountry adoption may
be considered for the child in question. Given that
in the text of the Convention no reference is made
to non-family based care residential care
10
as
an alternative, intercountry adoption is evidently
ranked above this form of alternative care and is
therefore contrary to the tenets of the CRC and
the ACRWC not recognised as a measure of
last resort.
11
The definition of intercountry adoption which can
be derived from the Hague Convention is:
The creation of a permanent and legal child-
parent relationship between a child habitually
resident in one country (State of origin) and a
couple/person habitually resident in another
country (receiving State).
12
Chapter II of the Hague Convention sets out the
requirements for intercountry adoption and
contains obligations for both the child’s country of
origin and for the receiving country. In the State of
origin, safeguards should be in place with regard
to the following aspects:
13
The adoptability of a child has to have been
established.
Intercountry adoption should be in the best
interests of the child and other national
9
G. Parra-Aranguren, Explanatory Report on the 1993 Hague
Intercountry Adoption Convention, The Hague: HCCH
Publications 1994, p. 3.
10
Residential care is temporary or long-term care provided on
a 24-hour basis in a group-based setting, by remunerated
adult staff, in a building or buildings owned or provided by the
implementing organisation, C. Phillips, Child-headed
households: A feasible way forward, or an infringement of
children's right to alternative care?, Amsterdam: Phillips 2011,
p. 75.
11
S. Vité & H. Boéchat, A Commentary on the United Nations
Convention on the Rights of the Child. Article 21 Adoption,
Leiden/Boston: Martinus Nijhoff Publishers 2008, p. 45.
12
Article 2 Hague Convention.
13
Article 4 Hague Convention.
options have to have been thoroughly
investigated.
All parties involved have to be duly informed
regarding the consequences of their consent
to intercountry adoption; consent should be
freely and voluntarily given by all and, in case
of the biological mother, not before the child is
born; consent may not depend on financial or
other gain.
If age and maturity of the child permit, the
child should be sufficiently informed; his
wishes and opinions should be taken into
consideration; when applicable, his consent
should be obtained freely.
The receiving State has to ensure that:
14
prospective adopters are suitable and eligible
to adopt the child;
prospective adoptive parents have received
counselling where required;
the child is able to legally enter and live
permanently in the receiving country.
In chapter III of the Hague Convention the
requirement of a Central Authority and Accredited
Body is laid down. Every Member State should
establish a Central Authority, in charge of carrying
out the duties imposed on the State by the Hague
Convention. Authorities from different countries
should co-operate to such an extent that they
provide each other with necessary information in
intercountry adoption procedures and ensure that
all processes involved are in line with the Hague
Convention.
15
Articles 14 22 (chapter IV) of the Hague
Convention cover the legal requirements of
intercountry adoption in both the country of origin
and the receiving country. Prospective adoptive
parents who wish to adopt a child from another
country should apply to the Central Authority in
their own country. The Central Authority is to
establish whether the prospective parents are
eligible and suitable for adoption. Furthermore,
the Authority is required to prepare a report
containing information on the prospective parents
regarding identity, eligibility and suitability, as well
as information concerning their background,
family and medical history, social environment,
reasons for adoption, ability to undertake an
intercountry adoption, and the characteristics of
the children for whom they would be qualified to
care. This report should be submitted to the
country of origin.
16
In turn, the State of origin is
held to prepare a report on the prospective
adoptee, covering the following aspects: identity,
adoptability, background, social environment,
family history, medical history (including that of
the biological family), and if applicable any
14
Article 5 Hague Convention.
15
Articles 6 13 Hague Convention.
16
Article 15 Hague Convention.
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special needs. The report on the child, as well as
the required consents, shall be conveyed to the
Central Authority of the receiving State. Based on
both reports, the decision is taken on whether
adoption of the child in question by the
prospective adopters is in the child’s best
interests, whereby due consideration should be
given to the child's upbringing and ethnic,
religious and cultural background.
17
Before the
country of origin takes a decision on whether a
child should be entrusted to the future adopters,
the Central Authority of this country has to ensure
that: 1) the prospective parents agree to the
adoption, 2) the Central Authority of the receiving
country has given its approval to the adoption, 3)
the Central Authorities of both countries support
the adoption, and 4) the prospective parents are
eligible and suitable for adoption and the child is
allowed to enter and reside permanently in the
receiving country.
18
The actual transfer of the
child from his home country to his adoptive
parents can only take place once the
aforementioned conditions have been met.
19
Chapter V outlines the recognition and the effects
of intercountry adoption. Member States should
recognise adoptions which have taken place in
accordance with the Hague Convention;
recognition may only be refused by a Member
State when an adoption is patently not in
compliance with its public policy, whereby the best
interest of the child is taken into consideration.
20
Recognition of an adoption includes the following
aspects:
21
existence of a legal child-parent relationship
parental responsibility of the adopters for the
adoptee
termination of previous parental relationships
of the child, unless adoption does not result in
a termination on the basis of the legal system
of the countries in question.
A number of general provisions are covered by
chapter VI. These relate to the constraints on
contact between the child and his adopters when
it has not yet been established that all the
requirements for the adoption have been met;
preservation of information with regard to the
child’s origin; prohibition of improper (financial)
gain in relation to the adoption; the applicability of
the Hague Convention.
22
The final clauses in
chapter VII concern formalities such as signature
and ratification of the Convention.
23
17
Article 16 Hague Convention.
18
Article 17 Hague Convention.
19
Article 19 Hague Convention.
20
Articles 23 and 24 Hague Convention.
21
Article 26 Hague Convention.
22
Articles 28 42 Hague Convention.
23
Articles 43 48 Hague Convention.
2. Current status intercountry adoption
To date, a total of 90 countries have either ratified
the Hague Convention or have acceded to it, only
a handful of which are African countries.
24
Given
that children who are adopted to or from non-
membercountries run a considerably higher risk of
having their rights violated, countries are
increasingly encouraged to sign up to the Hague
Convention. For instance, in 2010, UNICEF urged
African governments to adopt the Hague
Convention.
25
In their Concluding Observations
and Recommendations, both the African
Committee of Experts on the Rights and Welfare
of the Child and the CRC Committee on the
Rights of the Child recommend that countries
expedite the ratification of the Hague Convention
and/or ensure that national legislation is in full
conformity with the Hague Convention.
26
However, countries governed by Islamic Law will
not ratify the Hague Convention, as under this law
adoption is prohibited. Instead, these countries
provide a form of guardianship, known as kafalah,
which is a commitment by an adult to bring up a
child and take care of his education and
maintenance until the child reaches adulthood.
27
The term kafalah is derived from the Arabic word
kafl, meaning ‘to take care of as a father would of
his son’. Contrary to adoption, a child maintains
his own family name and does not acquire
inheritance rights in relation to his new
caregiver(s).
28
The number of inter-country adoptions has
decreased significantly during a period of almost
ten years. The most recent data, provided by 23
receiving States,
29
indicate a drop of more than
40% from 41,535 adoptions in 2003 to 23,609 in
2011. The top five receiving countries in 2011 all
of which have ratified the Hague Convention
were:
1. USA (9,320); 2. Italy (4,022); 3. Spain (2,573);
4. France (1,995); 5. Canada (1,785).
30
24
Find it here accessed on 21 March 2013.
25
Find it here accessed on 26 March 2013.
26
See in this regard: Concluding Recommendations by the African
Committee of Experts on the Rights and Welfare of the Child on the
Republic of Tanzania, November 2010; Committee on the Rights of the
Child, CRC/C/CAN/CO/3-4, Concluding Observations Canada,
December 2012; Committee on the Rights of the Child,
CRC/C/NAM/CO/2-3, Concluding Observations Namibia, October 2012;
Committee on the Rights of the Child, CRC/C/BIH/CO/2-4, Concluding
Observations Bosnia and Herzegovina, November 2012.
27
African Child Policy Forum, Intercountry Adoption: Alternatives and
Controversies. The Fifth International Policy Conference on the African
Child. Conference Report. Addis Ababa, Ethiopia, 2012, p. 16.
28
UN Department of Economic and Social Affairs, Population Division,
Child Adoption: Trends and Policies, New York, USA, 2009 (UN DESA
ST/ESA/SER.A/292 2009), pp. 26, 27.
29
Andorra, Australia, Belgium, Canada, Cyprus, Denmark, Finland,
France, Germany, Iceland, Ireland, Israel, Italy, Luxembourg, Malta,
New Zealand, Netherlands, Norway, Spain, Sweden, Switzerland, UK,
USA.
30
P. Selman, Key Tables for Intercountry Adoption: Receiving States
and States of Origin 2003-2011, available on request from the author at
pfselman@yahoo.co.uk.
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The top five countries of origin in 2011 were
mainly non-member countries:
1. China (4,405)
2. Ethiopia (3,455)
3. Russia (3,325)
4. Colombia (1,577)
5. Ukraine (1,070).
1
These figures solely reflect registered adoptions.
However, signals that numerous unregistered,
illegal adoptions take place especially from non-
Hague countries indicate that the factual
number of intercountry adoptions is significantly
higher.
2
As stated previously, although the total number of
registered intercountry adoptions has decreased
during the past decade, the number of children
adopted from African countries has seen an
increase during this period. Whereas, in 2003 a
mere 5% of all intercountry adoptions concerned
African children, in 2009 this number had risen to
22%.
3
As most African countries have not ratified
the Hague Convention and national legislation on
the subject of intercountry adoption is scanty, the
necessary safeguards for the protection of
children who are put up for adoption are not in
place. It is therefore of paramount importance that
the Hague Convention be ratified where possible
and the implementation of the Convention’s
stipulations is a vital step in combating illegal and
unsafe adoptions. In recent years, concern has
been raised about the adoption of thousands of
Ethiopian children, mainly by American and
European adopters.
1
Ibid.
2
See in this regard: Child Trafficking in East and South-East Asia:
Reversing the Trend, UNICEF EAPRO, 2009; Adopting the Rights of
the Child, A study on intercountry adoption and its influence on child
protection in Nepal, UNICEF / Terres des Hommes9 Foundation,
2008;Find it here, accessed on 27 March 2013; Find it here, accessed
on 27 March 2013.
3
African Child Policy Forum, Intercountry Adoption: Alternatives and
Controversies. The Fifth International Policy Conference on the African
Child. Proceedings Report. Addis Ababa, Ethiopia, 2012, pp. 9 10.
It is questionable whether these adoptions are
legitimate as in a number of cases the incentive
appears to be financial (an adoption may be
‘worth’ up to $35,000) rather than the best
interests of the child.
4
Other frequently
encountered reasons for intercountry adoption
whereby the best interest of the child is not the
main consideration are the desire of adoptive
parents to form or expand their own family
5
and
the opinion that the receiving country is better
equipped to care for a child than the country of
origin.
6
Notwithstanding the undoubted
significance of the Hague Convention, ratification
does not necessarily imply compatibility with
domestic laws and procedures. For instance,
legislation in two of the top five receiving
countries, the USA and France, allow for privately-
arranged intercountry adoptions, which are
usually not in compliance with the Hague
Convention.
7
4
Find it here acccessed on 27 March 2013.
5
African Child Policy Forum, Intercountry Adoption: Alternatives and
Controversies. The Fifth International Policy Conference on the African
Child. Proceedings Report. Addis Ababa, Ethiopia, 2012, p. 7.
6
Ibid, p. 22.
7
African Child Policy Forum, Intercountry Adoption: Alternatives and
Controversies. The Fifth International Policy Conference on the African
Child. Conference Report. Addis Ababa, Ethiopia, 2012, p. 7.
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3. Conclusion
The foremost international instruments governing
the protection of children’s rights the CRC and
the ACRWC both consider intercountry adoption
to be a measure of last resort. Only in situations
where a child cannot be adequately cared for in its
own country, should intercountry adoption be
considered and only when this is in the best
interests of the child in question. Intercountry
adoption is positioned last in line when options are
contemplated for children without (adequate)
parental care.
Contrary to the CRC and the ACRWC, the Hague
Convention does not regard intercountry adoption
as a measure of last resort, ranking this form of
adoption higher than institutional care. However,
the Preamble of the Hague Convention provides
that measures be taken to ensure that
intercountry adoptions are made in the best
interests of the child and with respect for its
fundamental rights. This implies that should there
be universal consensus that intercountry adoption
may not be considered to be in the best interests
of children, this form of care should no longer be
promoted or employed. This, however, is a
utopian ideal as there are still many countries
which champion intercountry adoption as a
justifiable form of ‘aid’. Given that intercountry
adoption does take place, it is of paramount
importance that countries in which this form of
adoption is allowed or is in any case not
prohibited be(come) party to the Hague
Convention. As set out in this article, the Hague
Convention provides States with guidelines as to
how to best implement rules and regulations
concerning necessary safeguards, processes and
supervisory bodies.
However, ratification of the Hague Convention
should not be embraced as a ‘miracle cure’ as
privately-arranged and illegal adoptions currently
also occur in Member States, albeit to a lesser
extent than in non-Member States. Despite the
safeguards provided by the Hague Convention,
the risks involved in intercountry adoptions are
immense: child harvesting, baby farms, child
trafficking, child labour, child prostitution are only
a few of the dangers potentially facing children.
Implementation of and adherence to the
provisions of the Hague Convention is therefore
vital.
With regard to the principle of intercountry
adoption being a measure of last resort, this
author should like to pose the following question:
Is it right to assert that there are circumstances
under which children even those in the most
acute need of alternative care cannot be looked
after in their own country? In certain situations a
measure of assistance financial or otherwise
may be required in order to support extended
family members or a foster family in raising the
child. However, in most cases awareness that a
child is in need of alternative care and adequate
national policies dealing with such situations will
suffice; in this regard, the promotion of national
adoption possibilities has led to positive results, in
that a significant increase in domestic adoptions in
several countries has been achieved. The answer
to the aforementioned question should therefore
to my mind be an unequivocal 'No.' As voiced by
David Mugawe, Executive Director of the ACPF,
during the final session of the Policy Conference
Intercountry Adoption: Alternatives and
Controversies: “There is no place any longer for
intercountry adoption; Africa can look after its own
children.” This is a sentiment that in my opinion
does not only pertain to the African continent, but
is universally applicable.
Charlotte Phillips* LL.M, PhD is a judge, author,
mediator and law lecturer based in Amsterdam, as
well as Extraordinary Professor at Addis Ababa
University, Ethiopia, where she teaches the
modules ‘Children’s Rights’ and ‘Refugees, IDPs
and Migration Law’ in the university’s LL.M in
Human Rights programme.
Website: www.charlottephillips.org
e-mail: info@charlottephillips.org
Chapter
A history of systemic injustices and a lack of transparency have influenced public perceptions of domestic adoption. This book aims to introduce more empirical evidence into the debate by exploring the value of open adoption, as practised in Australia, as a route to permanence for abused and neglected children in out-of-home care who cannot safely return to their birth families. International evidence about the outcomes of adoption and foster care is discussed. The chapter introduces the Barnardos Australia Find-a-Family programme which has been finding adoptive homes since 1986 for non-Aboriginal children in care who are identified as ‘hard to place’. Regular post-adoption face-to-face contact with birth family members is an integral part of the adoption plan. The methodology for evaluating the outcomes for 210 children placed through the programme included case and court file analysis, a follow-up survey and interviews with adoptive parents and adult adoptees.
Key Tables for Intercountry Adoption: Receiving States and States of Origin
  • Selman
Selman, Key Tables for Intercountry Adoption: Receiving States and States of Origin 2003-2011, available on request from the author at pfselman@yahoo.co.uk.
Concluding Observations Canada Committee on the Rights of the Child
  • C Can
  • Co
26 See in this regard: Concluding Recommendations by the African Committee of Experts on the Rights and Welfare of the Child on the Republic of Tanzania, November 2010; Committee on the Rights of the Child, CRC/C/CAN/CO/3-4, Concluding Observations Canada, December 2012; Committee on the Rights of the Child, CRC/C/NAM/CO/2-3, Concluding Observations Namibia, October 2012; Committee on the Rights of the Child, CRC/C/BIH/CO/2-4, Concluding Observations Bosnia and Herzegovina, November 2012. 27 African Child Policy Forum, Intercountry Adoption: Alternatives and Controversies. The Fifth International Policy Conference on the African Child. Conference Report. Addis Ababa, Ethiopia, 2012, p. 16.