Many thanks to Professor Kent Markus and to Denise St. Clair for their assistance with this Article.
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 Page 628 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 Page 629 international adoption arena, and many birth parents feel pressured into selling their children "for a better life" without fully understanding the consequences.
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 two percent.15 The drop in available children16 has also been attributed to Page 630 factors such as the increase in acceptance and use of contraception, the legality of abortion, and the trend of single parents keeping their children because it is more acceptable in present society.17
Furthermore, even though an adoptive parent generally waits four to eighteen months to adopt a "special-needs" child, that same parent may wait as long as seven to ten years to adopt a healthy, white infant.18 This problem is compounded by the fact that only thirty-two percent of the children eligible for adoption are white.19
Aside from the lack of adoptable infants, many adoptive parents also choose the international system of adoption to avoid unwanted interference by birth parents.20 Some foreign countries also have much more lenient requirements for the adoptive parents, especially in terms of that parent's age or sexual orientation.21
International adoption also has been presented as a solution to the disparity between the great number of orphaned children in some countries and the number of families in other countries who are hoping to adopt children.22 The potential adoptive families may turn to international adoption because they may not be able to accomplish this within a reasonable time in their own country.23 People view adoption as a much better alternative than a child becoming a "street" child,24 and it is estimated that there are about one hundred million of these children in the Page 631 world.25 Parentless children are also especially vulnerable to global ailments such as starvation, lack of shelter, contaminated water, and poor sanitation.26 Many children are left parentless due to events such as war, famine, disease, or crime, all of which can either irretrievably separate the child from the parent, or orphan the child when the parent dies.27 Surely, adopting a child internationally is a better alternative than allowing this same child to wander the streets or to die of starvation and lack of care.28
Unfortunately, the international adoption process is not without a myriad of problems. Many children that are adopted internationally have been institutionalized for prolonged periods of time,29 and this institutionalization can be extremely detrimental to a child's emotional, mental, and physical health.30 On average, for each five-month period that a child spends institutionalized, that child will physically exhibit a one- month growth delay.31
As a result of cover-ups by international agencies regarding adopted children's health problems, the tort of "wrongful adoption" has been recognized with respect to international adoptions.32 In one District of Columbia case, a court held that an adoption agency has a minimal Page 632 contractual duty to provide adoptive parents with medical information concerning the child,33 but in another case the court found that an international adoption agency did not have a duty to verify a potential adoptee's information.34 Thus, it is speculative as to whether adoptive parents will have any remedy at law for a child adopted internationally that manifests severe health problems because it depends on the facts of their individual cases.
Parents intimidated by the complexities of domestic adoptions will not find relief in the international arena. International adoptions are complex because of "the need to adhere to the laws of three separate jurisdictions: United States federal immigration law; laws governing adoption in the state in which the adoptive parents reside; and the laws regarding adoption in the foreign state."35 The foreign entity presents the most formidable challenges as a result of bureaucracy and corruption, which may cause frequent change in the laws and regulations of these governments.36 Page 633
Aside from the problems facing potential adoptive parents, the birth parents are the group who likely suffer most as a result of corruption in the adoption process.37 Due to the large number of children who are eligible to be adopted internationally and the growing demand for these children, a birth mother has less control over the process itself.38 In fact, once a child is adopted internationally, the chances of a birth parent reclaiming that child are almost nonexistent.39 This is because of the requirement that the child must "legally qualify as an 'orphan,' or ties [between the child and the birth parents] must be irrevocably severed in writing before the child...