Moving Children through Private International Law: Institutions and the Enactment of Ethics

Published date01 September 2019
Date01 September 2019
DOIhttp://doi.org/10.1111/lasr.12412
Moving Children through Private International
Law: Institutions and the Enactment of Ethics
Sonja van Wichelen
This article examines how the Hague Convention on the Protection of Chil-
dren and Co-operation in Respect of Intercountry Adoption(Hague Adoption
Convention) plays a central role in justifying the institution of legal adoption.
The Hague Adoption Convention has often been regarded as a response to
the challenges thatthe “global situation” bringsto adoption practice. Based on
private international law, the agreement contains protocols and norms to
ensure the protection of the child in intercountry adoption. In the article, I
propose that the Hague Convention can be understood as a “transparency
device”; a complex assemblage working in pursuit of global “good gover-
nance.” The device, however, also operates as justification within the institu-
tional domain, allowing adoption agencies to make distinctions between
legitimate and illegitimate adoptions. Idemonstrate how the logic of transpar-
ency disguises as much as it promises to reveal. While the doctrine’s aim is to
validate adoptability and combat trafficking,it also helps to mainstream Euro-
American adoptionknowledge to other parts of the world.
Moving Children Through Private International Law:
Institutions and the Enactment of Ethics
The world of international adoption today is undergoing pro-
found changes. Adoption advocates speak of a state of crisis. Since
2004, the number of international adoptions has dropped dramati-
cally. A global decrease was evidenced by at least 50 percent in 2011
since figures in 2004 (Selman 2009, 2012), and the numbers keep
falling worldwide. Yet the shortage of adoptable children in so-called
“sending countries”—those nations sending children away for inter-
national adoption—have not diminished the demand for children in
“receiving countries”—those states to which the children are sent to
be adopted by prospective parents. The continued demand has put
Please direct all correspondence to Sonja van Wichelen, Department of Sociology
and Social Policy, School of Social and Political Sciences, Faculty of Arts and Social Sci-
ences, The University of Sydney, Rm 345, Social Sciences Building (A02), NSW 2006
Australia; e-mail: sonja.vanwichelen@sydney.edu.au
This research was funded by a DECRA grant from the Australian Research Council
(project number: DE140100348). I would like to express my gracious thanks to the three
reviewers who provided valuable comments and suggestions for improvement. I would
also like to thank my editor Catherine V. Howard for her generous work in editing my
article and for her insightful feedback.
Law & Society Review, Volume 53, Number 3 (2019): 671–705
©2019 Law and Society Association. All rights reserved.
671
severe pressure on institutions that facilitate international adoptions.
Some argue that the situation has elicited or aggravated corrupt
practices, child buying, and child trafficking in the major sending
countries, such as China, Russia, and Guatemala (Smolin 2006,
2010; Graff 2008). Across these institutions, internal a nd public
debates are taking place to devise the best ways to manage these
new challenges.
One of the principal interrogations in these debates is how the
current practice of international adoption relates to the applica-
tion of the Hague Convention on the Protection of Children and
Co-operation in Respect of Intercountry Adoption (hereafter,
Hague Adoption Convention), a Convention established in 1993
that is geared toward regulating cross-border adoptions. Legal
scholarship on adoption has labored over this problem by gauging
the original goals and intentions of the Convention, by assessing
how well countries implement its principles and directives, and by
scrutinizing the effectiveness of the instrument.
1
While some
argue that the Hague Adoption Convention closes opportunities
for adoption and can be regarded as one of the major instigators
of the recent decline (Bartholet 2007:154; Clemetson 2007),
others contend that the decline was precipitated more directly by
local measures, independent of the Hague system (Smolin 2010:
465). On the whole, the literature has focused primarily on the
regulatory aspects of the Hague Adoption Convention. Within
this framework, commentators may critique the language, imple-
mentation, or adaptation of the Convention in local, organiza-
tional, or governmental settings. The solutions they suggest often
remain within the realm of law, proposing more regulation or
proffering institutional “best practices.” Crucial questions, how-
ever, remain: in what way is the Convention enacted in daily prac-
tice? How do institutions—including their actors, experts, and
stakeholders—make use of or implicate the Hague Adoption Con-
vention in their day-to-day operations?
In this article, I examine the uses of the Hague Adoption
Convention in institutional practices that must contend with
reproductive desires, on the one hand, and humanitarian inten-
tions, on the other. I discuss the fundamental issues of practice
and ethics, and describe the tension between enabling adoption
and policing the commodification of children. Sociolegal scholar-
ship on adoption, or reproductive technologies more broadly,
focused on this tension, bringing ethics to bear on commodity
thinking (Ertman 2003; Goodwin 2010; Yngvesson 2002). Draw-
ing from theories in economic sociology, legal anthropology, and
1
See, for instance, Bartholet 2007; Smolin 2006, 2010, and 2015; Dillon 2003,
2008; and Tobin 2014.
672 Moving Children through Private International Law
science and technology studies, I extend these studies to focus
particularly on how the Convention and its artifacts (such as
forms, guidelines, and “best practice” guides) are enacted by insti-
tutions and what the consequences of such enactments are.
Enactment is a key term in science and technology studies
(Lien and Law 2011; Mol 2002; Strathern 2005; Woolgar and
Lezaun 2013) and is aimed at bypassing investigations of repre-
sentation. In looking at how a legal technology—such as the
Hague Adoption Convention—is enacted, I’m not concerned with
how it has been represented, which would involve epistemological
questions aimed at uncovering a more truthful world outside of
representation. Instead, enactment privileges an analysis of how
objects—in this case, the Convention and its artifacts—are per-
formed in practice, describing how worlds come about—or are
achieved. A focus on enactment is more concerned with ontology
rather than epistemology and I am particularly interested in how
the Convention comes to be stabilized (albeit strongly or weakly)
in institutional practice. I argue, along with Woolgar and Lezaun
(2013: 332), that its stabilizations are achieved “in virtue of its
articulation as part of the structure of the moral order of which it
is part.” Enactments, then, have normative effects and I will dem-
onstrate that a focus on enactment highlights the Convention’s
function as a legal technology of global governance in which poli-
tics is obscured by a depoliticized practice of ethics.
The first half of the article provides a context to the Hague
Adoption Convention by discussing its purpose, history, and
implementation. I focus on a central discrepancy in the multi-
dimensional component of the Convention: the core principle of
subsidiarity.
2
In my reflections on this context, I turn to criticize a
central notion underlying Karl Polanyi’s (2001[1944]) socioeco-
nomic theory, namely, the “double movement.” The first of this
double movement involves the expansion of a capitalist market to
the point where abuses are committed, and the second involves a
countermovement when social protections are put in place to
combat the abuses. The Hague Adoption Convention can be seen
as responding to the tribulations of “marketization,” that is, the
abuses that arose from the market mechanisms underlying adop-
tion practices in a globalized world and, as such, can be
2
According to the Hague Adoption Convention, subsidiarity is defined as follows:
“‘Subsidiarity’ in the Convention means that Contracting States recognize that a child
should be raised by his or her birth family or extended family whenever possible. If that
is not possible or practicable, other forms of permanent care in the State of origin should
be considered. Only after due consideration has been given to national solutions should
intercountry adoption be considered, and then only if it is in the child’s best interests. As
a general rule, institutional care should be considered as a last resort for a child in need
of a family.” See https://assets.hcch.net/upload/outline33e.pdf.
van Wichelen 673

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