The Hague Intercountry Adoption Act and Its Interaction With Islamic Law: Can an Imperfect
| Citation | Vol. 10 No. 3 |
| Publication year | 2007 |
Cite as: Alexander D. Gonzalez, Comment,
I. Introduction...................................................................... 439
II. History of the Intercountry Adoption Act....................... 440
A. Impetus Behind International Recognition of Intercountry Adoptions 441
B. Intercountry Adoption Convention as Adopted by the United States 442
III. Islamic Perspective and the Potential Impact of the Hague Intercountry Adoption Convention 444
A. Islamic Law Overview of Adoption..................................... 445
B. Islamic Reform or Conformity to Westernization?................. 447
C. Articles of the Convention: Conflicts with Shari'a Law.......... 448
D. Purpose, Scope, and Requirements of the Convention........... 449
E. Recognition and Effects of General Provisions and Final Clauses of Adoption 453
IV. Case Study: U.S. Yet to Ratify the Convention................. 455
A. Adoption One: In the Philippines......................................... 456
B. Adoption Two: Intercountry Adoption Process in the U.S...... 457
V. Should There Be Leeway Under the Convention?.............. 460
In 2004, more than 40,000 children were adopted worldwide.[1] Of these, many were the victims of corruptive adoption practices throughout the world.[2] In response to these deceptive practices, the Hague Intercountry Adoption Convention sought to remedy these atrocities through international treaty with the
Although the Convention provides a novel framework for adoptive practices, the interaction between the mandates of the Convention and those of Shari'a Law have not been addressed. In particular,
While ratification of the Convention is laudable in theory, uncertainty clouds its effectiveness particularly in Contracting States with large or powerful Muslim communities and political strongholds. In following with the aforementioned theme, this article will raise questions as to how the Articles of the Convention could interact with Shari'a Law. Specifically, this article will address potential issues that should be handled with care. Section II of this article will provide the history of the Intercountry Adoption Convention and the United States' reasons for joining the effort as reflected in the congressional record. Section III will focus on the interaction between Shari'a Law and the Articles of the Convention. Section IV analyzes a case study of an intercountry adoption in the Philippines through the experiences of a practicing immigration attorney. Finally, this article will discuss how ratification could adversely impact those who strictly adhere to Shari'a Law, and how law-making bodies should respond to those concerns.
The Intercountry Adoption Convention emerged as an international effort to protect the rights of the child.[9] In particular, the primary purpose of the Convention is to end human rights violations, namely, abduction, sale, and trafficking of children.[10] In order to achieve a unified international system of adoption, the Convention created general preconditions including: (1) the requirement that Contracting States appoint a "Central Authority"[11] to enforce the mandates of the Convention; (2) procedural requirements;[12] and (3) recognition "by operation of law."[13] As of April 2005, sixty-seven countries had ratified the articles of the Convention in whole or in part and 52 countries were signatories. Recently, the United States Congress enacted federal law recognizing the Convention through the promulgation of the Intercountry Adoption Act (IAA).[14] The IAA specifically endorses the Convention as "essential"[15] to protecting the rights of the child.[16]
Unfortunately, human trafficking of children for the purpose of adoption has become a lucrative international business. International legal experts recognize that changes in traditional societies such as social and economic pressures, in addition to the HIV/AIDS epidemic, increases the number of orphaned children.[17] This is problematic because the demand for children has increased dramatically each year.[18]
Even more problematic, biological parents are resorting to selling their infants for $5,000 to $25,000 or trading them for "appliances or commodities considered as luxury items."[19] As a result, children have been kidnapped or abducted to be sold by dealers to adoptive families and orphanages.[20] In response, the international community has sought a remedy through the United Nations in the
In the words of Colin Powell, "it is incomprehensible that trafficking in human beings is taking place in the 21st Century-incomprehensible but true. Trafficking leaves no land untouched, including our own."[22] While the U.S. has previously addressed the severity of human trafficking through legislation[23] and granted children born abroad citizenship,[24] it has recently recognized the importance of an international system of adoption with the IAA,[25] which is based on the articles of the Convention.[26] The United States' recognition of the Convention has drawn praise. In particular, the congressional record leading up to the enactment reflects the pressing need to address the dual purpose of facilitating international adoptions to accommodate prospective families and curb corruption.[27]
Even before the advent of the Convention, congressional representatives expressed the importance of addressing problems associated with adoption. Some of the pressing concerns included bureaucracy, discrimination, and the black market.[28] Among one of the most deplorable atrocities associated with intercountry adoptions occur when orphanage directors knowingly fail to identify children eligible for adoption in order to obtain more state money.[29] Under the IAA, such a violation would be subject to penalty.[30]
The congressional record[31] further emphasized that "standards of competence, financial soundness, and ethical behavior"[32] must be met. Moreover, the Record commends the structure established at the Convention in that it strengthens international cooperation and alleviates the arduous process of adoption.[33] The penalties under the IAA[34] assure that violations "go far beyond the cost of merely doing business."[35]
The purpose for recognizing the Convention, of course, is to create uniformity in an otherwise decentralized international system by promoting cross-governmental cooperation.[36] When interacting under an international system, differences among laws and practices within nations are inevitable and likely to cause "confusion, expense, and delay . . . ."[37] One way to facilitate cooperation among nations is the internet, which, due to differences in time zones and time constraints, has become the principal form of communication between agencies.[38]
The recognition of the Convention creates hope for thousands of unfortunate children around the world. Specifically, countries ratifying the Convention anticipate that each intercountry adoption will be carried out following the established standards.[39] A concern, however, which is particularly poignant to the issue at bar, is "bureaucracy and red tape."[40] This proposition stems from the notion that countries are not free from the influences of politics, bureaucracy, and religion. As a result, delay, manipulation, and malfeasance are implicated regardless of the governmental structure.
The practical concept of adoption as known in the western world is foreign to most Muslim societies. Historically, the Qur'an abolished the custom of adoption yet it, along with the Traditions of the Prophet, provides exceptional protection for children's rights irrespective of adoption formalities.[41] Despite preexisting safeguards with respect to the protection of children, critics of Shari'a Law nonetheless propose reform as a way to coexist with the modern world.[42] In the context of the Convention, the...
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