Birth Parents: The Forgotten Members of the International Adoption Triad

Resumen

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Introduction . I. Background . A. A Brief History of International Adoption and the Reasons for Its Existence. B. Problems in International Adoption. C. Challenges Faced by Birth Parents. II. Current Law . A. Governing United States Law. B. Foreign Law. III. Pending Law . A. The Hague Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption. B. The Intercountry Adoption Act of 2000. C. The Intercountry Adoption Act of 2000 and Its Federal Regulations. D. Intercountry Adoption Reform Act of 2003. E. Uniform Adoption Act of 1994. IV. The Failures to Protect Birth Parents in the International Adoption Arena . A. The "Orphan" Definition. B. Misinformed/Unprotected Birth Parents. C. The Black Market. Conclusion .

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Extracto

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Birth Parents: The Forgotten Members of the International Adoption Triad

Many thanks to Professor Kent Markus and to Denise St. Clair for their assistance with this Article.

Introduction .

Imagine a mother, in a far away country, nearing the end of her pregnancy. This woman has one child already, and she has never given any indication that she is an unfit mother. As the birth of her baby draws near and she goes into labor, she is taken to the hospital by a woman who "just happens" to be visiting the neighborhood. This woman ignores the mother's pleas for those who were supposed to help her through the delivery. Once in the hospital she is given tranquilizers to ease the pain of delivery, but the medicine leaves her confused. She cannot understand why a woman she has just met and a man she has never seen before are claiming to be her sister-in-law and the father of her newly born child. This mother is somehow sent home without her baby, and she is promised that the baby will arrive in the next few days. She is told that to get her child back she must sign papers, which she promptly does. Unbeknownst to the mother, she is signing away her rights to the child and consenting to the international adoption of her newly born baby.

Although this story may seem unreal, it is not.1 Elena Almada, the birth mother of this child, is now left to wade through the legal quagmire that birth parents, whose rights have been trampled on, face in international adoption.2

The concept that a child could be taken away from a birth parent merely by a signature is a strange and unbelievable concept to many foreign birth parents.3 Some foreign mothers, who are taught from a very early age to respect authority and to adhere to promises made, are often coerced into signing away the rights to their children by those who are fully aware of the mothers' respect for authority.4

Recent developments in international adoption law, while concentrating primarily on the best interests of the adopted children, do not go far enough to protect the rights of the birth parents, as these bodies of law do not adequately prevent children from being adopted who are not truly orphaned,5 protect the birth parents from being misinformed about the rights that they are surrendering,6 or prohibit black-market "baby selling." To sufficiently protect the rights of all parties, the promise of the Hague Convention7 must be fulfilled by implementing the provisions of this treaty and modifying it to include penalties for violations of its purposes, pending U.S. law must be enacted, birth parents should be given more power to choose the destinies of their children, and criminal punishments must be imposed for those who participate in the black market and the manipulation of birth parents.

This Comment discusses the adequacy of protection of birth parent rights in international adoption. Part I discusses broadly the history of international adoption, especially as it relates to the issues and problems arising from international adoption, and the Hague Convention and its purposes. Part II focuses on the law currently in place to regulate international adoption, and those laws that are pending but have not yet taken effect. Finally, Part III focuses on three issues that affect birth parents in international adoption: (1) a child must qualify as an orphan in order to be adopted internationally; (2) birth parents may be misinformed in the process of international adoption, and it is very difficult for them to remedy fraud or deceit; and (3) the black market prevails in the international adoption arena, and many birth parents feel pressured into selling their children "for a better life" without fully understanding the consequences.

I. Background .

A. A Brief History of International Adoption and the Reasons for Its Existence.

International adoption,8 although not an entirely recent phenomenon,9has increased considerably over the past decade.10 Even though the number of international adoptions has more than doubled over this time period, the same cannot be said for domestic adoptions, which have actually decreased.11 This indicates that domestic adoptions have, to some extent, been substituted by international adoptions.12 International adoption has become the preferred method of adoption for many people for many reasons, including assumptions and fears about domestic adoption versus international adoption, which may or may not be valid.13 One major factor is the lack of adoptable, healthy Caucasian babies.14 In the past, white women were, traditionally, "the largest demographic to surrender children for adoption," but that number has dropped to below...

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