Intercountry adoption: a need for mandatory medical screening.

• Author: Jeffreys, Darya P.

1. Introduction II. Principle Types of Adoption III. Adopting in a Foreign Country-Recognition IV. Intercountry Adoption Occurring in the United States V. Different Parties to the Intercountry Adoption VI. Health Problems Associated With Intercountry Adoption

   1. Parasitosis, Hepatitis B, and Other Infectious Diseases

   2. Problems Specific to China

   3. Problems Specific to Romania VII. Mandatory Screening VIII. INA & Adoption History IX. Conclusion

1. INTRODUCTION

   Infertility has caused many couples to turn to other methods in order to create a family. Various options are available for families who have difficulties with conception.(1) The primary non-medical, non-invasive method is that of adoption. Adoption, although at times very expensive, can be less costly than fertility treatments.(2) Those seeking to adopt may still face substantial hurdles. Even if a couple is the `right' age, `right' race, earns a sufficient income, and is of the `right' sexual orientation, they may still have difficulties with adopting their preferred child, and at the very least they face sometimes unnecessarily long waits before a child becomes available.3 Couples often turn to intercountry adoption because of the "less restrictive eligibility requirements" and the short time period before the actual adoption.(4) This Note addresses some of the hurdles associated with domestic adoption, and further examines the choice to adopt internationally.

   Despite the numerous benefits of intercountry adoption, most families do not consider the possible health ramifications. Since adoptive parents are unsuspecting of ailments associated with foreign countries, a complete pediatric examination is a must after receiving the foreign adoptee. Such a pediatric examination will be effective when it is uniform and thorough, but without such an examination both parents and physicians remain in the dark about the child's health.(5)

   Congress ought to amend the Immigration and Nationality Act (INA) to require a standard pediatric examination for all foreign adoptees, regardless of the country of origin, as a condition to approval of granting immediate relative status to the adoptee. This Note proposes that Congress can effectuate mandatory screening of internationally adopted children through its power to regulate immigration and therefore, should use this power to ensure that all international adoptees receive all necessary screening and treatment.

2. PRINCIPLE TYPES OF ADOPTION

   Numerous avenues exist through which a couple may adopt a child. Couples can adopt through an adoption agency or through an independent adoption.(6) An adoption agency can be either public or private.(7) When couples choose to adopt through an agency, they rarely deal with the natural mother.(8) Typically the agency, and not the birth mother, conducts the investigation to locate suitable adoptive parents.(9) Couples generally prefer private agencies because public agencies involve long waits10 and a lack of knowledge of the birth mother.(11)

   To shorten the adoption process, numerous couples elect to adopt through a private agency. Although adoption through a private agency may slightly shorten the adoption process, the couple must still satisfy the other desirable qualities of adoptive parents.(12) Aside from the shorter duration of the pre-adoption process, private agencies accomplish the same ends as the public agencies; however, private agencies are more costly to the prospective parents.(13)

   Frustrated with the long waits and lack of available infants, some couples have chosen to pursue independent adoptions domestically. Independent adoptions are more attractive than agency adoptions for numerous reasons, the most substantial being the shorter waiting period.(14) Another important aspect of independent adoptions which attracts prospective parents is fewer procedural requirements, which consequently allow for more privacy.(15) Because of the desirability of independent adoptions, the availability of infants through agency adoptions has decreased severely.(16)

   The newest trend in adopting children is to seek adoption in foreign countries, through foreign agencies. The process of intercountry adoption is much shorter than that of other available options, but also more Costly.(17) The cost of intercountry adoption is often high, sometimes exceeding $20,000.(18) Similar to the domestic independent adoption, intercountry adoptions allow for more privacy and a much shorter waiting period.(19)

   The benefits of adopting a foreign child are numerous to the adoptive parents. The desired qualities, sought by adoption agencies in the United States, are not the same in the foreign countries, therefore making it easier for an older couple to adopt.(20) In fact, many foreign adoption agencies prefer older couples when placing a child with a family.(21) Accompanying the older couple is the image of a more established and secure family for the adoptee.(22)

   Intercountry adoption also facilitates the adoption process for single adoptive parents, interracial adoptive parents, and others who may not meet the eligibility requirements of domestic adoptions.(23) Many of the problems associated with interracial domestic adoptions do not exist in intercountry adoption.(24) Although foreign agencies encourage adoptive parents to consider the effects of adopting a child of another race, they do not prohibit or discourage interracial adoption.(25)

   A humanitarian aspect is often associated with intercountry adoption. Many children are adopted from poverty stricken countries.(26) Foreign orphanage conditions in many of the countries, particularly China(27) and Romania,(28) would shock the conscience of most Americans. As a result, some couples feel they are saving the foreign born child from the poor conditions of her native country by bringing her to the United States.(29)

   The large number of Romanian adoptions exemplifies this humanitarian attitude. After the decline of Ceausescu in 1989, Americans learned of the horrors of the Romanian orphanages.(30) Americans were eager to adopt Romanian children in order to rescue the children from the dreadful orphanages, despite the fact that most of these children were unhealthy.(31) Humanitarian actions of this magnitude were also prevalent with Korean(32) and Chinese(33) adoptions. The last thirty years have seen an increase in Americans seeking intercountry adoption as the information regarding of poor living conditions became available to them.

   Another benefit to the adoptive parents is the wide availability of infants in foreign countries. The number of infants available for adoption through intercountry adoption exceeds the number available for domestic adoptions, particularly in India and South East Asia, due to high poverty levels and birth rates.(34) Infant availability decreases the waiting period for the complete adoption is short.(35) The most significant benefit to the adoptive parents is the security of knowing that the birth mother of their newly adopted child is not likely to suddenly appear on their doorstep and seek to annul the adoption.(36) When all these factors are considered, the extra money spent by a family on the intercountry adoption may seem insignificant.

3. ADOPTING IN A FOREIGN COUNTRY--RECOGNITION

   Adoptive parents will find that it is not difficult to accomplish the actual adoption in a foreign country and subsequent recognition in the United States. Recognition can be accomplished in accordance with the laws of the foreign country, or through what is known as "customary adoption."(37) By showing the adoption to be legal in the foreign country, the adoptive parents can be certain that the United States will recognize the adoption.(38)

   When intercountry adoption occurs in a foreign country which has adoption laws, the party seeking recognition need only show that the adoption in question satisfied those laws.(39) If the party successfully shows compliance with the foreign country's adoption laws, the Immigration and Naturalization Service (INS) will recognize the adoption.(40) This burden is not difficult to satisfy. The United States has also recognized adoptions which were technically not valid in the foreign country.

   When intercountry adoption occurs in a foreign country which does not have formal laws for adoption, the party seeking recognition must show the custom which effectuates the legal adoption.(41) In addition to showing the existence of the custom creating adoption, the party must also show the adoption in question observed the customary procedures.(42) This burden is also not difficult to satisfy.

4. INTERCOUNTRY ADOPTION OCCURRING IN THE UNITED STATES

   Adoptions involving foreign-born children may occur in any of the fifty states so long as the state enacts a policy that validates the adoption decree.(43) Before a court can approve the adoption, certain extra steps, above and beyond those required for domestic adoption, must be taken for INS purposes.(44) For example, in Ohio, the adoptive parents must meet with the probate judge prior to receiving the child.(45) Once the judge determines that the adoption is legitimate, the adoptive parents must submit to a home study, the results of which will be sent to the INS.(46) The home study is the means by which an agency may evaluate the adoptive parents.(47) This process confirms that the adoptive parents have all resources necessary to provide for and nurture the adoptee.(48) Assuming the child satisfies the requirements of the INA, the adoptive parents will bring the child to the United States.(49) After one year, the new family must have a follow-up interview.(50) If the adoption decree is valid, the INS will recognize the adoption.

   The federal regulations involved include the filing of the I-600A and I-600 forms.(51) Initial application to the INS should be made upon completion of the home study by filing the I-600A.(52) Filing of the I-600A ("Application for...