INVESTIGATING THE GREY ZONES OF INTERCOUNTRY ADOPTION illuminates thecontemporary paradoxes of intercountry adoption (ICA). While theoretically regulated by the 1993 Hague Convention on Intercountry Adoption (THC-93), in fact almost two-thirds of contemporary intercountry adoptions are not legally governed by the treaty. While purportedly addressed at least in broad terms by the fundamental 1989 Convention on the Rights of the Child (CRC), a large proportion of intercountry adoptions in fact arise in circumstances where there have been severe violations of the rights of both children and adults, due to poverty and/or discrimination based on disability, gender, race, or ethnic group. Thus, where children’s rights and human rights are respected and successfully implemented, there are very few children legitimately in need of adoption. Further, while adoption is theoretically a means to ameliorate rights deprivations and to implement the best interests of the child, as actually practiced it easily becomes driven by the desire of adults for children, and by financial incentives. Thus, there is a severe temptation to create systems which use ICA to address problems such as poverty and discrimination, when from a child rights and human rights perspective it should be mandatory instead to remedy the underlying rights and equality violations. At the same time, vulnerable children clearly cannot wait for poverty, discrimination and underlying structural problems to be alleviated in their societies before receiving appropriate interventions, providing some ambiguity in practical terms as to the proper implementation of the subsidiarity principle. These paradoxes indeed create “grey zones.”
The Report goes beyond addressing “grey zones” to describe the zones of clearly illicit and illegal activity: children kidnapped and sold for ICA; fraud and money being used as inducements to obtain relinquishments; false documentation being supplied to cover up these means of illicitly obtaining children. Concern with such illegal conduct was a precipitating concern of the THC-93 as reflected by the text and work of preparation; that these abusive practices remain persistent and widespread is demonstrated by the fact that the HCCH Special Commission of 2010 devoted the first day to “the abduction, the sale of, or traffic in children” in the context of intercountry adoption. Unfortunately the most powerful actors in ICA, including governments, adoption agencies, and adoptive parents, have powerful incentives to deny or minimize the extent of these illicit practices. Thus, it is extremely welcome that such an internationally significant organization as ISS has in this Report provided such a detailed documentation and analysis of these illicit practices. Hopefully, all involved in ICA will carefully consider the facts, analysis, and recommendations contained in this report.
David M. SMOLIN
Professor of Law Cumberland Law School
Birmingham, Alabama USA
Ethics, Transparency, Support
~ What All Adoptions Deserve.