Intercountry Adoption and Poverty: A human Rights Analysis

Author:David M. Smolin
Position:Professor of Law, Cumberland Law School, Samford University
Pages:413-453
 
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INTERCOUNTRY ADOPTION AND POVERTY:
A HUMAN RIGHTS ANALYSIS
DAVID M. SMOLIN
Adoption proponents commonly view intercountry adoption as an
appropriate response to the extensive poverty that exists in many
developing nations.1 Intercountry adoption is perceived as a humanitarian
act that transfers a child from extreme poverty and its vulnerabilities and
limitations, to the wealth, comfort, and opportunities of developed nations.2
The extreme nature of poverty in developing countries underscores the
impetus to rescue children from its harsh effects. An estimated 800 million
to one billion people live below the international poverty line of $1 per
day, with perhaps another 1.5 to 2 billion living on less than $2 per day.3
Copyright © 2007, David M. Smolin.
Professor of Law, Cumberland Law School, Samford University. The author
appreciates the research assistance of Anna Schmidt. I owe a broad intellectual debt to
Desiree Smolin, who has been my partner in working through a number of issues related to
intercountry adoption.
1 See, e.g., Elizabeth Bartholet, International Adoption: Thoughts on the Human Rights
Issues, 13 BUFF. HUM. RTS. L. REV. 151, 183 (2007) (“allowing international adoptions will
push us slightly forward on the path to improving conditions for parents and children and
otherwise addressing poverty and social injustice in the poor and the sending countries of
the world.”).
2 See id. at 152–53; Ramya Parthasarathy, Harvard Hosts Debate on
Transnational Adoption, THE HARVARD CRIMSON ONLINE EDITION, Nov. 2, 2005,
http://www.thecrimson.com/article.aspx?ref=509558 (quoting adoption advocate Professor
Bartholet, who “agreed that poverty is a driving factor behind women’s choices to put their
children up for adoption,” but that nonetheless “[w]e should promote international
adoption . . . .”); Jane Gross & Will Connors, Surge in Adoptions Raises Concern
in Ethiopia, N.Y. TIMES, June 4, 2007, at A1, A16 (Ethiopian government opens
intercountry adoption to those who “come from families too destitute to feed and
clothe them”); International Adoption Stories: Guatemalan Adoption Laws, 2007,
http://www.internationaladoptionstories.com/guatemalan-adoption-laws.htm (adoption
story by adoptive parent illustrates viewpoint that intercountry adoption is an appropriate
response to the poverty of Guatemala) (last visited June. 15, 2008); Hands to Hearts
International: A Deeper Look at International Adoption, http://handstohearts.blogspot.com/
2006/11/deeper-look-at-international-adoption.html (Nov. 18, 2006, 12:39) (illustrating
common pro-international adoption rhetoric).
3 See JEFFREY D. SACHS, THE END OF POVERTY 2–3 (2005), for a discussion on extreme
poverty and efforts to alleviate it. See Shaohua Chen & Martin Ravallion, How Have the
World’s Poorest Fared since the Early 1980s?, 19 WORLD BANK RES. OBSERVER 141, 141
(continued)
414 CAPITAL UNIVERSITY LAW REVIEW [36:413
Parents living under or near the international poverty line struggle to
provide bare subsistence for themselves and their children, and many
children and adults suffer from malnutrition and the lack of clean water,
sanitation, electricity, medical care, housing, and education.4 The children
of the poor in developing nations are also vulnerable to other harms, such
as child labor, debt bondage, child prostitution, and child trafficking.5 The
(2004), for a discussion on the measurement of extreme poverty. One view of poverty
estimates and trends in global income distribution examines the magnitude of inequality in
income distribution. At the most extreme, the world’s wealthiest 500 persons have a
combined income greater than that earned by the 416 million persons falling into the
poorest income bracket. See U.N. Dev. Program [UNDP], Human Development Report
Office, Human Development Report 2005: International cooperation at a crossroads: Aid,
trade and security in an unequal world, at 4 (lead author Kevin Watkins, 2005), available
at http://hdr.undp.org/en/media/hdr05_complete.pdf. The 2.5 billion people living on less
than $2 per day, which is 40% of the world’s population, account for 5% of global income,
whereas the richest 10%, almost all of whom live in high-income countries, account for
54%. Id.; see also generally Shaohua Chen & Martin Ravallion, Absolute Poverty
Measures for the Developing World, 1981–2004 (World Bank, Working Paper No.
WPS4211, 2007), available at http://go.worldbank.org/JKM6JMVZ10; World Bank,
2007 World Development Indicators, http://web.worldbank.org/WBSITE/EXTERNAL/
DATASTATISTICS/0,,contentMDK:21298138~pagePK:64133150~piPK:64133175~theSit
ePK:239419,00.html [hereinafter World Development Indicators] (providing the latest
world income distribution estimates, along with explanations of how the data are
gathered and the rationale for calculating the distribution of poverty in terms of
people worldwide living under $1 and $2 per day); U.N. Econ. & Soc. Aff., The
Millennium Development Goals Report 2007, http://www.un.org/millenniumgoals/
docs/UNSD_MDG_Report_2007e.pdf (showing United Nations goals for the
eradication of poverty and progress to date).
4 See, e.g., World Summit for Soc. Dev., March 6–12, Report of the World Summit for
Social Development, at 13, U.N. Doc A/CONF.166/9 (Apr. 19, 1995) (note with
particularity Part C, Commitment 2) [hereinafter Social Development Summit]; SACHS,
supra note 3, at 20; BARRY S. LEVY &VICTOR W. SIDEL, SOC. INJUSTICE AND PUB. HEALTH
379–402 (Barry S. Levy & Victor W. Sidel eds., 2006); World Bank, World Development
Report 2004, Making Services Work for Poor People (2003) (discussing education, health
care, water, sanitation, electricity), available at http://go.worldbank.org/YLHM12T4M0.
5 See generally U.S. DEPT OF STATE, TRAFFICKING IN PERSONS REP. 18–22 (2007),
available at http://www.state.gov/g/tip/rls/tiprpt/2007/; Niels-Hugo Blunch & Dorte Verner,
Revisiting the Link between Poverty and Child Labor, The Ghanaian Experience, (World
Bank, Policy Research Working Paper No. WPS2488), available at
http://go.worldbank.org/5PHI7SR030; Convention Concerning the Prohibition and
Immediate Action for the Elimination of the Worst Forms of Child Labour, Nov. 19, 2000,
ILO Convention No. 182, pmbl., available at http://www.ilo.org/ilolex/cgi-lex/
(continued)
2007] INTERCOUNTRY ADOPTION AND POVERTY 415
impetus to rescue children from this kind of poverty, and its attendant
miseries, is certainly understandable.
This Article explores the question of whether intercountry adoption is
an effective, appropriate, or ethical response to poverty in developing
nations. As a matter of methodology, this fundamental question of
adoption ethics is explored through the lens of international human rights
law. This Article specifically argues that, where the birth parents live
under or near the international poverty standard of $1 per day, family
preservation assistance must be provided or offered as a condition
precedent for accepting a relinquishment that would make the child eligible
for intercountry adoption.
The question posed by this Article is fundamental to intercountry
adoption practice in many developing countries, such as Cambodia,
Ethiopia, Guatemala, India, Nepal, and Vietnam. The question is also
fundamental to the issue of whether intercountry adoption should be
expanded in many other developing nations where it is rare.6 The issues
were well posed by a recent New York Times article on the expansion of
intercountry adoption in Ethiopia.7 The article noted that while many
African countries have “outlawed or impeded” intercountry adoption,
Ethiopia has opened itself to intercountry adoption for children whose
families are “too destitute to feed and clothe them.”8 The emerging
Ethiopian intercountry adoption system is unusual in encouraging adoptive
families to “meet birth families and visit the villages where the children
were raised.”9 This practice has the effect of unveiling to adoptive parents
and others the stark choices involved in adopting children internationally
convde.pl?C182 [hereinafter Worst Forms of Child Labour] (“Recognizing that child labour
is to a great extent caused by poverty and that the long-term solution lies in sustained
economic growth leading to social progress, in particular poverty alleviation and universal
education.”); THE END OF CHILD LABOUR: WITHIN REACH, ILO, at 10 (2006),
http://www.ilo.org/public/english/standards/relm/ilc/ilc95/pdf/rep-i-b.pdf (discussing
poverty, among other factors).
6 See U.S. DEPT OF STATE, BUREAU OF CONSULAR AFFS., Immigrant Visas Issued to
Orphans Coming to U.S., http://travel.state.gov/family/adoption/stats/stats_451.html (last
visited June 15, 2008), for intercountry adoption statistics from the United States
government.
7 Gross & Connors, supra note 2, at A1, A16; see also Immigrant Visas Issued to
Orphans Coming to U.S., supra note 6, for statistics documenting the increase in adoptions
from Ethiopia.
8 Gross & Connors, supra note 2, at A16.
9 Id.

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