Intercountry Adoption and Poverty: A human Rights Analysis

• Author: David M. Smolin
• Position: Professor of Law, Cumberland Law School, Samford University
• Pages: 413-453

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

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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. DEP’T 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. DEP’T 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.