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

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 INT’L

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 INT’L 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).