Barriers to the successful implementation of the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption.

• Author: Kimball, Caeli Elizabeth

INTRODUCTION

The recent tsunami disaster that devastated many regions in Southeast Asia on December 27, 2004, has brought an unprecedented outpouring of humanitarian aid from around the world. (1) Some of the most heart-rending images beamed into American homes have been pictures of frightened children temporarily or permanently separated from their parents, many of whom were killed. In response to the disaster, Americans have flooded the U.S. Department of State with phone calls and letters voicing interest in adopting Tsunami orphans. (2)

American families' strong interest in international adoption is by no means a new phenomenon. For the last fifty years, economic, social, and political changes in foreign countries have led hundreds of thousands of American families to adopt foreign children for altruistic and personal reasons. After World War II, families from the United States rushed to adopt orphans from Germany, Italy, and Greece. (3) Similarly, both the Korean and Vietnam wars prompted huge movements by American families to adopt Korean and Vietnamese children. (4) Only thirty Romanian children were internationally adopted in 1989, but the economic and social policy shifts of the Cold War allowed for over 10,000 intercountry adoptions to take place following Nicolae Ceausescu's fall in 1991. (5) China, Russia, and Korea are examples of sending countries reluctant to allow their orphans to be internationally adopted, but Russia is currently "the world's largest supplier of orphans" to U.S. families, with China as a close second. (6)

Despite the overwhelming number of American families yearning to adopt tsunami orphans, the Department of State must look to the principles behind the U.S. Intercountry Adoption Act of 2000 (IAA) (7) and to international adoption laws that promote legal adoptions and protect interests of children worldwide, (8) In doing so, the Department of State announced its decision to disallow the adoption of tsunami children by American families for three reasons: (1) the United States received reports of child trafficking for illegal adoption of Tsunami children; (2) the current inability of the countries of origin to determine whether children are legally orphaned; (9) and (3) the strong likelihood that children are experiencing substantial trauma from the natural disaster, which would potentially increase the emotional impact of moving to a foreign country for adoption into a new family. (10) These considerations make a strong cause for caution; intercountry adoption may not be within the best interests of tsunami children at this time. (11)

These recent events triggered a discussion over international adoption that should bring renewed attention to the status of the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Convention). (12) For over a decade, the Hague Convention has been the driving force for nations to establish governing regulations over a process that leads to a definitive event in the lives of adopted children and their adoptive families. Although these efforts have achieved a measure of success to date, (13) significant political and cultural obstacles must be overcome before an international consensus regulating intercountry adoptions can truly be put in place. Those barriers, as shown in this paper, may be insurmountable.

Since its popularization in the 1950s, intercountry adoption has been subject to a mesh of conflicting adoption laws and red tape in both sending and receiving countries. (14) It was not until horrific stories of child trafficking and child abduction were unearthed and reported in international media that international organizations saw the drastic need to establish uniformity in intercountry adoption regulations and procedures. (15) In 1989, the United Nations initiated the Convention on the Rights of the Child (CRC), to recognize children's human rights. (16) The CRC laid the foundation for the Hague Convention, enacted in 1993, which established regulations and procedures to protect the interests of the children being adopted and sought to potentially unify international adoption laws. (17) The goals and values underlying the Hague Convention have been received with great support, with sixty-four countries ratifying or acceding to the Hague Convention as of August 2004. (18) However, the United States, one of the largest receiving countries, and China and Korea, historically two of the largest sending countries, have yet to become parties. (19)

Although Congress adopted the IAA in 2000, it had not been put into effect as of January 2005. Until that occurs, the United States cannot become a party to the Hague Convention. The concerns delaying the United States' implementation of the Hague Convention are primarily rooted in financial and business concerns, rather than cultural and moral perspectives. Not only do sending countries potentially face these same issues, but many of the primary sending countries also face the more serious problem of societal and cultural objections to international adoption of their children. Even if sending countries permit adoptions to take place, it is unlikely that these sending countries will endorse an international agreement that imposes procedures that must be followed in order to participate in international adoptions with member countries.

The Hague Convention fails to address several conceptual and practical issues that are critical to achieving its goals. Despite good intentions to protect the interests of children being adopted, and to establish systems for ensuring legal adoptions, the Hague Convention favors compliance of receiving countries, which tend to be wealthier and more able to bear the economic burdens posed by compliance than comparatively poor sending countries. The treaty depends on the cooperation between the receiving and sending countries, and three of the largest sending countries--Russia, China, and Korea--have yet to ratify the Hague Convention over a decade after signing the treaty. (20) Although the Hague Convention sets forth specific requirements for its members regarding intercountry adoption procedures, nowhere does the treaty prohibit members from engaging in intercountry adoptions with non-members. Signatories of the Hague Convention agree to the purpose and goals behind the treaty but the treaty dos not require every signer to ratify or accede to it.

The undue economic burden of compliance, in conjunction with underlying social and cultural opposition to intercountry adoption, provides little incentive for ratification by major sending countries, such as China and Korea, who have actively participated in intercountry adoption for over half a century. In all likelihood, intercountry adoptions between parties and non-parties to the Hague Convention will continue even if major sending countries choose not to ratify the treaty, undermining the goals and purpose of the Hague Convention.

Part I of this paper looks at some of the reasons that sending countries such as China and Korea depend on intercountry adoption to care for their orphans. From the sudden trend of allowing international adoptions came corrupt adoption practices and child trafficking stories that cried for international adoption regulations. Part II explores the regulations set forth by the Hague Convention and the influences of early international legislation, attempting to establish regulations for intercountry adoptions. In addition, this paper addresses issues that were not, but should have been addressed by the Hague Convention. Part III examines the steps the United States has taken to ratify the Hague Convention, and the controversies that have slowed down the process. Part IV looks at the social and cultural opposition, in conjunction with the economic burdens of compliance on sending countries that exceeds the burden on receiving countries that make the major sending countries reluctant and slow to ratify the Hague Convention. This paper concludes that, although the Hague Convention promotes and regulates the practice of intercountry adoption, in an effort to protect both the children being adopted and abolish corrupt practices, the treaty neglects to recognize economic and cultural issues that impose barriers to some of the major sending countries. By failing to recognize these major hurdles, the Hague Convention fails to provide sufficient incentives for major sending countries to become parties to the treaty. Accordingly, the Hague Convention may not achieve the goals of cooperation between sending and receiving countries and the unification of international adoption laws.

1. THE INTEREST AND NEED FOR INTERCOUNTRY ADOPTIONS BEG FOR REGULATION OF INTERCOUNTRY ADOPTION PRACTICES

   1. Interest in Intercountry Adoptions is at an All-Time High

      The number of intercountry adoptions has progressively increased over the last fifty years as sending countries looked internationally for solutions when they encountered a domestic shortage in available homes for their orphans and unwanted children. While the concept was virtually unheard of in the United States prior to World War II, (21) a total of 18,447 foreign-born children were adopted by U.S. families in the year 2000. (22) In 2001, over 34,000 intercountry adoptions took place worldwide, with the United States receiving over 19,000 adoptees. (23) 20,000 foreign born children were adopted in 2003 alone. (24) Interest in intercountry adoption is escalating at such a rapid pace that families willingly foot international adoption fees anywhere from $12,000 to $30,000 and wait one to three years for the entire adoption process to be completed. (25) The greatest number of internationally adopted children come from China, Russia, South Korea, Guatemala, Romania, Vietnam, Ukraine, India, and Cambodia. (26) In general, these countries resort to international adoption as a means of providing for some of...