This Note explores the effect of the United States' ratification of the Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption (Hague Convention) via passage of the Intercountry Adoption Act of 2000 (IAA). Through intercountry adoption, countless children have been given homes and opportunities in the U.S. that would not have been available to them in their countries of origin. With the increased popularity of intercountry adoption, however, have come tragic consequences for many children in foreign countries, who are exploited by those involved in the adoption process. This Note contends that the IAA, as currently written, does not sufficiently address these problems. After examining the history of intercountry adoption, the Hague Convention, and the IAA, the Note proposes certain changes in the IAA that would help combat the problems posed by intercountry adoption and allow its beneficial aspects to continue.
TABLE OF CONTENTS I. INTRODUCTION II. THE DEVELOPMENT OF INTERCOUNTRY ADOPTION DURING THE TWENTIETH CENTURY: A SOLUTION BORN OUT OF TRAGEDY, ITS HARMS, AND THE ATTEMPTS TO HEAL THEM A. The Role of National Disaster and Hardship in Intercountry Adoption B. The Harmful Results of the High Demand for Intercountry Adoption C. Regulation of Intercountry Adoption: The Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption and the United States' Attempt to Implement with the Intercountry Adoption Act of 2000 1. International Recognition and Regulation: The Stepping Stones for the Hague Convention 2. The U.S. Implementation of the Hague Convention: The Intercountry Adoption Act of 2000 III. THE U.S. TAKES FINAL STEPS TOWARD IMPLEMENTING THE INTERCOUNTRY ADOPTION ACT A. The U.S. State Department Regulations B. The Effects of the IAA Once the Hague Convention is Ratified IV. SOLUTION V. CONCLUSION I. INTRODUCTION
On December 26, 2004, an underwater earthquake off the coast of the Indonesian island of Sumatra caused a tsunami tidal wave that devastated countries across Southeast Asia. (1) The effects of the tsunami were felt as far as three thousand miles away on the eastern coast of Africa (2) and resulted in approximately 216,000 deaths spanning eleven countries across Africa and Asia (3) As news of the tragedy reached the rest of the world, many people were touched by the vast numbers of children left orphaned by the natural disaster. (4) The U.S. State Department and international adoption organizations fielded calls pouring in from U.S. families interested in providing homes for the orphaned children. (5)
The need to identify and reunite family members, the variance in adoption procedures in different countries, and a desire to protect the children from mistreatment made adoption of the young victims of the tsunami impractical in the immediate aftermath of the disaster, and many of the countries affected by the disaster shut down their borders to adoption altogether. (6) However, the tsunami disaster is one recent example in a history of economic, social, and political crises that have facilitated the advance of intercountry adoption in the United States. (7) U.S. families were prompted to adopt children from war-damaged countries following World War II, as well as after the Korean and Vietnam wars. (8) The end of the Communist reign of Nicolae Ceausescu and the fall of the Soviet Union caused an influx of adopted children from Romania and Russia. Because of government-imposed family planning restrictions, China has ranked either first or second in number of children adopted into the United States each year for the past decade. (9)
Proponents of intercountry adoption advocate the process for its ability to provide children with permanent homes when such homes are not available to them in their countries of origin. (10) Critics, meanwhile, present the process as being "exploitative, imperialistic, and detrimental to children because of the separation from their home culture and society." (11) They point to instances of child trafficking, where poverty-stricken families are persuaded to accept relatively small amounts of money in exchange for their children, who are then forced to live in dreadful conditions until they are adopted by wealthy foreigners for large sums. (12) Although domestic adoption is always considered to be in the best interest of the child when available, opponents also emphasize certain instances when intercountry adoption is given preference because of the higher prices that foreigners are willing and able to pay to adoption agencies. (13)
Efforts have been made in the last two decades to create standards for intercountry adoption, and to make the process safe and worthwhile when it is the best option for a child. (14) The United Nations Convention on the Rights of the Child first recognized children's rights in 1989. (15) The subsequent Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption (Hague Convention) was enacted in 1993 with the purpose of setting minimum standards to be followed in adoptions occurring between contracting countries. (16) Currently, seventy-four countries have achieved either ratification of or accession to the Hague Convention; the United States is not yet among them, despite adopting more children from abroad than all other countries in the world combined. (17)
The United States signed the Hague Convention in March of 1994, signaling its intent to become a party, but is only now taking the final steps toward enacting it. (18) Congress adopted the Intercountry Adoption Act of 2000 (IAA) in an attempt to implement the Hague Convention, but ratification has been delayed by the State Department's review of public comments to the proposal and by opposition to the IAA's requirements by international adoption agencies. (19) In February of 2006, the State Department announced publication in the Federal Register of the finalized rules on "accreditation of adoption agencies and other matters required to enable U.S. ratification of the Convention." (20) The Hague Convention is currently expected to be ratified and enter into force in the United States in 2007. (21)
While efforts have been made to regulate international adoption, an efficient international system is far from being in place. The Hague Convention is a step in the right direction, but its requirements are difficult to comply with, and many countries will be unable or unwilling to invest the time and resources necessary to conform to them. The United States is only now on the brink of ratifying the Convention, nearly thirteen years after signing it. Part II of this Note discusses the increase in international adoptions resulting from various political, social, and economic events in the years since World War II, the problems that arose out of the enhanced demand for adoptable children, and the attempts at regulation that have ensued. Part III discusses the United States' impending ratification of the Hague Convention through the implementation of the IAA and its inadequacy with respect to many of the countries from which U.S. families currently, or will be likely to, adopt children. Looking specifically at the orphan crisis in sub-Saharan Africa, this section discusses how countries dealing with national disasters may be both unable to care for their orphan population and unable to fulfill the requirements necessary to become a party to the Hague Convention. In such cases, the IAA will offer no protection to the children involved. Part IV discusses options by which the United States can better facilitate safe international adoption practices where the Hague Convention does not apply, and more specifically, the additional efforts that the U.S. must make to ensure the safety of the intercountry adoption process when sending countries are unable to do so.
THE DEVELOPMENT OF INTERCOUNTRY ADOPTION DURING THE TWENTIETH CENTURY: A SOLUTION BORN OUT OF TRAGEDY, ITS HARMS, AND THE ATTEMPTS TO HEAL THEM
The Role of National Disaster and Hardship in Intercountry Adoption
Intercountry adoption is a relatively new practice in the United States, essentially unheard of prior to World War II. (22) Its increasing popularity since that time--the number of adoptions in the United States of children from abroad doubled from 11,340 to 22,739 in the past decade alone (23)--has been largely in response to political, social, and economic upheaval in the adopted children's countries of origin. (24) After World War II, some in the U.S. motivated by the stories brought home by military personnel were moved to adopt the orphaned and refugee children from war-ravaged countries such as Greece, Italy, Germany, and Japan. (25) Due in part to the Displaced Persons Act, which allowed three thousand displaced children to enter the U.S. in spite of their countries' immigration quotas, families in the U.S. adopted 1,845 German children and 2,987 Japanese children between 1948 and 1962. (26)
Similar increases in adoption occurred after both the Korean and Vietnam Wars. (27) Prior to the Korean War, foreigners were very rarely permitted to adopt Korean orphans, as it was perceived to be in conflict with the strong sense of family heritage inherent in the Korean culture. (28) However, the tragedy of war and the large number of babies fathered by U.S. soldiers during the conflict forced a change in the Korean attitude toward intercountry adoption. (29) In the wake of the war, the United States allowed military personnel to obtain non-quota visas for adopted children, and the adoption of Korean children by families in the U.S. increased steadily throughout the following decades. (30) It is estimated that between the early 1950s and the mid-1980s, more than 100,000 Korean children were adopted by foreign families, a large number of them in the U.S. (31)
An increase in intercountry adoption also...