Admonitions or Accountability?: U.S. Implementation of the Hague Adoption Convention Requirements for the Collection and Disclosure of Medical and Social History of Transnationally Adopted Children

Author:D. Marianne Brower Blair
Position:Professor of Law, University of Tulsa College of Law. B.A. 1974, DePauw University; J.D. 1980, The Ohio State University
Pages:325-396
 
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ADMONITIONS OR ACCOUNTABILITY?: U.S.
IMPLEMENTATION OF THE HAGUE ADOPTION
CONVENTION REQUIREMENTS FOR THE COLLECTION AND
DISCLOSURE OF MEDICAL AND SOCIAL HISTORY OF
TRANSNATIONALLY ADOPTED CHILDREN
D. MARIANNE BROWER BLAIR*
I. INTRODUCTION
One of the central, unifying themes of the Wells Conference on post-
adoption challenges is the vital importance of thorough collection and
disclosure of the medical and social history of children who are to be
placed for adoption. Cognizant of serious and increasingly prevalent
deficiencies in the collection and disclosure practices utilized in many
transnational adoptive placements during the 1990s,1 Congress and the
U.S. Department of State responded. They devoted considerable attention
to the regulation of these practices in the federal legislation and regulations
that implement the Convention on the Protection of Children and Co-
operation in Respect of Intercountry Adoption2 (the Hague Adoption
Copyright © 2012, D. Marianne Brower Blair.
* Professor of Law, University of Tulsa College of Law. B.A. 1974, DePauw
University; J.D. 1980, The Ohio State University. This article grew out of a presentation by
the author at the Seventh Annual Wells Conference on Adoption Law at Capital University
Law School on March 17, 2011. The author wishes to thank Capital University Law
Review, faculty, and staff for their invitation to participate in and gracious hospitality
during this conference. The auth or is also deeply indebted and extremel y grateful to Ms.
Cyndee Jones and Ms. Shaye Guilfoyle, who devoted many hours to locating e-mail
addresses and distributing the first round of the survey of adoption agencies referenced
throughout this article and described in detail in Appendix A.
1 See The Hague Convention on Protection of Children and Cooperation in Respect of
Intercountry Adoption: Treaty Doc. 105-51 and Its Implementing Legislation S. 682:
Hearing Before the Senate Commission on Foreign Relations, 106th Cong. 1–2 (1999)
(opening statement of Sen. Jesse Helms, Chairman, S. Comm. on Foreign Relations).
2 See, e.g., Hague Conference on Pri vate International Law: Convention on Protection
of Children and Co-Operation in Respect of Intercountry Adoption, May 29, 1993, 32
I.L.M. 1134, available at www.hcch.net/upload/conventions/txt33en.pdf [hereinafter Hague
Adoption Convention]; Trish Maskew, The Failure of Promise: The U.S. Regulations on
Intercountry Adoption Under the Hague Convention, 60 ADMIN. L. REV. 487, 492, 494
(2008).
326 CAPITAL UNIVERSITY LAW REVIEW [40:325
Convention),3 an international agreement that entered into force for the
United States on April 1, 2008.4
The Hague Adoption Convention provides a framework for
international adoption practices for the eighty-five nations that are
currently contracting states.5 It also shapes the development of practices in
additional signatory nations that have not yet become parties.6 The
Convention itself mandates the collection, preservation, and confidentiality
of medical and social history in general terms, but it leaves the
development of more specific standards and enforcement mechanisms to
each contracting nation.7 In the United States, that regulatory scheme is
primarily supplied by the federal Intercountry Adoption Act of 2000
(IAA)8 and federal regulations setting forth the accreditation standards for
the agencies and other entities that bear primary responsibility for
facilitating international adoptions.9 However, because U.S. state law
requirements for collection and disclosure are not pre-empted by the
federal regulations,10 adoption intermediaries are subject to an additional,
and in some U.S. states a more stringent, regulatory layer.11
3 The Hague Adoption Convention (or the Convention) i s so-termed because it is one of
several international family law agreements drafted under the auspices of the Hague
Conference on Private International Law (HCCH), an intergovernmental o rganization of
over seventy member nations created to negotiate and draft multilateral conventions with
the goal of furthering the progressive unification of civil and commercial law. The United
States became a member of the Conference in 1964. See HAGUE CONF. ON PRIVATE INTL
L., http://www.hcch.net (last visited Feb. 16, 2012).
4 Convention of 29 May 1993 on Protection of Children and Cooperation in Respect of
Intercountry Adoption: Status Table, HAGUE CONF. ON PRIVATE INTL L. (Sept. 11, 2011),
http://www.hcch.net/index_en.php?act=conventions.status&cid=69.
5 Id.
6 Id.
7 See Hague Adoption Convention, supra note 2, arts. 16, 30, 31.
8 42 U.S.C. §§ 14901–14954 ( 2006).
9 22 C.F.R. §§ 96.1–96.111 (2011).
10 Id. § 96.27(g). See also 42 U.S.C. § 14953(a) (2006); Hague Convention on
Intercountry Adoption; Intercountry Adoption Act of 2000; Accreditation of Agencies;
Approval of Persons, 71 Fed. Reg. 8064, 8109 (Feb. 15, 2006) (to be codified at 22 C.F.R.
pt. 96).
11 See, e.g., D. Marianne Brower Blair, Liability of Adoption Agencies and Attorneys for
Misconduct in the Disclosure of Health-Related Information, in 3 ADOPTION LAW AND
PRACTICE 16–12 to 16–13 (Joan Hollinger ed., LexisNexis 2010) [hereinafter ADOPTION
(continued)
2012] ADMONITIONS OR ACCOUNTABILITY? 327
The rigor with which the IAA and its implementing federal regulations
impose accountability for collection and disclosure of medical and social
history became a focal point for intense debate during the drafting
process,12 and the resulting regulatory scheme is less robust than was
originally anticipated.13 Now, three years after the federal statutes and
regulations implementing the Hague Adoption Convention entered into
effect, this article analyzes and critiques the collection and disclosure
standards and enforcement mechanisms of this current federal regime and
their interaction with the standards and liability imposed by U.S. state law.
In addition, the author conducted a short empirical survey to explore the
practices and perceptions of agencies and other entities that are currently
accredited or approved to serve as primary providers of adoption services
LAW AND PRACTICE]; D. Marianne Brower Blair, The New Oklahoma Adoption Code: A
Quest to Accommodate Diverse Interests, 33 TULSA L.J. 177, 257–70 (1997). See generally
D. Marianne Brower Blair, Lifting the Genealogical Veil: A Blueprint for Legislative
Reform of the Disclosure of Health-Related Information in Adoption, 70 N.C. LAW REV.
681 (1992).
12 See Maskew, supra note 2, at 497 (describing intense reaction to the vicarious
liability proposals in the proposed regulations); Sarah Sargent, Suspended Animation: The
Implementation on Intercountry Adoption in the United States and Romania, 10 TEX.
WESLEYAN L. REV. 351, 380 (2004) (noting that the federal regulations implementing the
IAA were very controversial).
13 For other commentators who have reached this conclusion as well, see, for example,
Johanna Oreskovic & Trish Maskew, Red Thread or Slender Reed: Deconstructing Prof.
Batholet’s Mythology of International Adoption, 14 BUFF. HUM. RTS. L. REV. 71, 100–03
(2008) (discussing how important provisions in the IAA were eviscerated in the
regulations); Maskew, supra note 2, at 496–511(critiquing the many ways in which the final
regulations failed to fulfill the promise of protection against adoption intermediary abuses
in disclosure of health information and other aspects); Anjanette Hamilton, Comment,
Privatizing International Humanitarian Treaty Implementation: A Critical Analysis of State
Department Regulations Implementing the Hague Convention on Protection of Children
and Cooperation in Respect of Intercountry Adoption, 58 ADMIN. L. REV. 1053, 1064
(2006) (opining that the federal regulations implementing the IAA are “more likely to
maintain the status quo of regulation rather than bring about the procedural changes
necessary to remedy the abuses that the Convention and the IAA sought to prevent”); Olga
Grosh, A Call of Duty: Preventing Adoption Di sruption by Expanding Adoption Providers’
Duty to Investigate and Disclose Children’s Medical History (Feb. 28, 2011), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1 772362 (critiquing broad exceptions in
regulations).

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