Molly S. Marx, Whose Best Interests Does it Really Serve? a Critical Examination of Romania's Recent Self-serving International Adoption Policies

• Citation: Vol. 21 No. 1
• Publication year: 2007

WHOSE BEST INTERESTS DOES IT REALLY SERVE? A CRITICAL EXAMINATION OF ROMANIA'S RECENT SELF- SERVING INTERNATIONAL ADOPTION POLICIES^*

INTRODUCTION

Vasile is a wide-eyed, seven-year-old boy who has lived his whole life in a run-down orphanage in Botosani, Romania.¹He is one of the lucky ones. Two years ago, an American couple decided to adopt Vasile.²But before he could move in with his new family, the Romanian government passed a law prohibiting all international adoptions.³For now, Vasile remains in the orphanage, along with thousands of other abandoned children,⁴awaiting the day Romania repeals the law, which would allow him the opportunity to be raised in a permanent home.⁵

Since World War II, the number of international adoptions has increased greatly. Political turmoil, natural disasters, and economic hardships have left many developing countries with an abundance of abandoned children.⁶At the same time, certain factors in industrialized countries, such as the prevalence of birth control and the decrease in the social stigma of single motherhood, have reduced the number of U.S. children available for adoption, leaving many families to remain childless.⁷The obvious solution to this global problem is a convergence of supply and demand, creating families for children and children for families. Unfortunately, a number of considerations have led some sending countries to sharply decrease the number of children available for cross- country adoption. Romania, the most recent nation to follow this trend, implemented legislation in January 2005 banning all international adoptions.⁸

Internal factors in Romania, such as poverty and social acceptance of child abandonment, lead to a huge number of homeless children.⁹Yet, despite the thousands of families eager to provide homes for children like Vasile, Romania's new laws prevent this situation from occurring. Romania's moratorium on international adoption violates several international treaties.¹⁰

Furthermore, because the moratorium also fails to address the underlying causes of child abandonment, the number of orphaned children will continue to increase. Moreover, Romania enacted these laws for political, self-serving purposes, ignoring the best interests of its children. In prohibiting international adoptions, Romania removed a vital safeguard to the widespread practice of child abandonment, which previously provided a pragmatic solution to both the problem of homeless children and the problem of childless families.

This Comment explores the overly restrictive nature of Romania's new adoption laws and how they will deprive thousands of needy children of loving homes. Part I summarizes the history of international adoptions, as well as arguments in favor of and against this practice. Part II addresses the situation in Romania in detail, including the country's history of foreign adoption, its current adoption laws, and an analysis of why these laws are over-inclusive and why they will fail to achieve their stated objectives. Part III explores the impact that several international treaties, namely the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption ("Hague Convention" or "Convention") and the U.N. Convention on the Rights of the Child, have on the development of Romania's adoption policies.

This part includes an interpretation of these Conventions and their enforcement mechanisms. It also demonstrates the extent to which Romania's adoption policies violate international law and outlines the repercussions of this breach. The Conclusion proposes actions the international community can take to pressure Romania into repealing this moratorium and offers some concluding thoughts.

I. HISTORY OF INTERNATIONAL ADOPTIONS

Historically, periods of turmoil and instability have led to increases in international adoptions. Wars, natural disasters, and political upheaval leave numerous orphans in their wake. Social and religious factors in sending countries also play a role in creating unwanted children.¹¹These sending countries are typically poor, undeveloped nations with high birth rates, as opposed to the receiving countries, which are usually industrialized countries with low birth rates.¹²

The practice of cross-country adoption first gained momentum after World War II in response to the large number of children who were orphaned and displaced by the conflict.¹³Americans felt compelled to rescue these orphans, who experienced the terrible aftereffects of war and famine.¹⁴The Korean War was another catalyst that propelled international adoptions to the forefront of the public arena.¹⁵United States citizens began adopting South Korean orphans after American soldiers stationed in Asia drew attention to the suffering of South Korea's abandoned children.¹⁶

Modern international adoptions are no longer a byproduct of armed conflicts.¹⁷In recent years, the popularity of adopting from overseas has increased substantially,¹⁸because many families in industrialized nations have found international adoption to be a viable alternative to domestic adoption.¹⁹

Whereas no children were adopted from overseas before World War II,²⁰in the year 2005 alone, 22,728 foreign-born children entered the United States to join adoptive families.²¹

In Western countries, the number of children available for domestic adoption has decreased significantly, largely due to the legalization of abortion, the rise in infertility rates,²²the availability of contraceptives, and the increased social acceptance of single-parent homes.²³These factors have led many childless families to seek alternate resources for securing children. Meanwhile, economically underdeveloped nations lack such safeguards as birth control and family planning resources that are prevalent in their industrialized counterparts.²⁴Inevitably, this leads to more children than financially-strapped parents can support.²⁵Consequently, many children are abandoned to the state, which often lacks adequate resources to care for them.²⁶

Although the problems of children without families and families without children are distinct, one practice can solve them both: "International adoptions can tackle both of these problems simultaneously by providing an alternative that takes into account the best interests of the child and families involved, making it the most viable solution to this global problem."²⁷By placing abandoned children in childless homes, the modern practice of international

Id. This influx of Korean children into the United States was greatly facilitated by the Korean government's willingness to grant these adoptions. Wallace, supra note 11, at 692. adoption operates in a reciprocal fashion, successfully satisfying the needs of both parties involved.²⁸Unfortunately, the international community has erected obstacles, which have led to delays or even outright barriers to meeting these needs.²⁹

A. Arguments Against International Adoptions

Critics of international adoptions offer several arguments in support of their efforts to curtail the practice. International adoptions have been likened to a modern, more atrocious, form of imperialism.³⁰Opponents of the practice believe that receiving countries are stripping sending countries of their most valuable and irreplaceable resource: their children.³¹They condemn the practice as a form of human trafficking in which stronger countries exercise control and dominance over weaker countries that are powerless to stop them.³²

Another critique of international adoption is that it reflects negatively on sending countries, inferring that they are unable or unwilling to care for their own.³³Allowing richer and more powerful countries to take and raise one's children can have damaging effects on the sending country's sense of national pride.³⁴Sending countries often face allegations that exporting their children is only a band-aid that does little to address the underlying causes that lead to the problem of unwanted children.³⁵Critics encourage these countries to resolve the economic, political, and social factors that contribute to the large numbers of orphans, as opposed to simply exporting the problem.³⁶

The illegal activities that usually accompany international adoptions make the adoptions easy targets for disapproval. The field is too often corrupted by harmful practices such as child abduction, child trafficking, baby-selling, and bribery.³⁷Many destitute mothers accept money or gifts in exchange for their babies.³⁸Even when these women cannot be swayed by seemingly large sums of money, their children are often abducted by opportunistic middle-men who know that the children will fetch a large sum on the black market.³⁹Lastly, detractors also call attention to the culture shock that a child may experience when taken from his or her homeland and placed in an unfamiliar country.⁴⁰

1. Responding to These Criticisms

This negative depiction of the international adoption process is detrimental and counter-productive to all parties involved. Condemnation often results in sending countries taking drastic actions in response.⁴¹Sending countries feel pressure from the international community to reform their intercountry adoption system and traditionally have done so by severely reducing the number of orphans available for adoption by foreigners.⁴²Instead of attacking the root of the problem, such as attempting to prevent baby-selling or introducing programs aimed at reducing the number of abandoned children, many sending countries have simply closed their borders to foreigners seeking to adopt.⁴³These policies not only fail to address the underlying causes of the homeless child crisis, they exacerbate the problem. Although advocates of international adoption concede that the practice can allow sending countries to ignore the underlying factors causing the abundance of abandoned children, they argue that denying families the chance to adopt these needy infants is irrational.⁴...