Outgoing Adoptions: What Should Happen when Things go Wrong

Author:Cynthia R. Mabry-King
Position::Professor of Law, Howard University School of Law; LL.M., New York University School of Law; J.D., Howard University School of Law. I appreciate research support from Dean Danielle Holley-Walker, Howard University School of Law. I also appreciate feedback from attendees at the Family and Youth Law Center and Capital University Law Review's ...
Pages:1-30
SUMMARY

The procedure to adopt a child outside the United States is quite vague and there are better alternative procedures for improving the outgoing adoption process.

 
FREE EXCERPT
OUTGOING ADOPTIONS: WHAT SHOULD HAPPEN
WHEN THINGS GO WRONG?
CYNTHIA R. MABRY-KING*
I. INTRODUCTION
Hundreds of children born in the United States are adopted by citizens
of other countries such as Austria, Canada, Ireland, and the Netherlands.1
Many of these children are African-American and are adopted by non-
African-American parents2; this adoption placement raises transracial and
transcultural concerns.3 The Convention on Protection of Children and
Co-operation in Respect of Intercountry Adoption (Hague Adoption
Convention)4 and the Intercountry Adoption Act of 2000 (IAA),5 require
Copyright © 2016, Cynthia R. Mabry-King
* Professor of Law, Howard University School of Law; LL.M., New York University
School of Law; J.D., Howard University School of Law. I appreciate research support from
Dean Danielle Holley-Walker, Howard University School of Law. I also appreciate
feedback from attendees at the Family and Youth Law Center and Capital University Law
Review’s Eleventh Wells Conference on Adoption Law at the Capital University Law
School on March 12, 2015.
1 Sophie Brown, Overseas Adoption Rise—For Black American Children, CNN (Sept.
17, 2013), http://www.cnn.com/2013/09/16/world/international-adoption-us-children-
adopted-abroad/.
2 This article uses the plural “parents” for consistency, but also intends to include
situations of a single adoptive parent.
3 Id. See also Dawn Davenport, Born in America, Adopted Abroad, CHRISTIAN SCIENCE
MONITOR (Oct. 2004), http://www.csmonitor.com/2004/1027/p11s01-lifp.html (explaining
why African-American children are sent abroad for the purpose of adoption by Caucasian
parents).
4 Convention on Protection of Children and Co-operation in Respect of Intercountry
Adoption, May 29, 1993, S. TREATY DOC. NO. 105-51 (1998), 1870 U.N.T.S. 167 (entered
into force May 1, 1995) [hereinafter Hague Adoption Convention]. The United States
signed the Hague Adoption Convention in 1994 but did not pass implementing legislation
until 2000. UNDERSTANDING THE HAGUE CONVE NTION, http://travel.state.gov/content/
adoptionsabroad/en/hague-convention/understanding-the-hague-convention.html (last
visited Oct. 21, 2015); Gina M. Croft, The Ill Effects of a United States Ratification of the
Hague Convention on Protection of Children and Co-operation in Respect of Intercountry
Adoption, 33 GA. J. INTL & COMP. L. 621, 63132 (2005).
5 Intercountry Adoption Act of 2000 (IAA), 42 U.S.C. § 14932(a) (2012).
2 CAPITAL UNIVERSITY LAW REVIEW [44:1
accredited agencies and other approved persons to comply with certain
procedures when a child emigrates from the United States in an outgoing
adoption. For example, accredited agencies and other approved persons
must complete a background study on the child.6 Also, the agency or
approved person who is placing the child must certify that they have made
reasonable recruitment efforts and diligent searches to identify prospective
adoptive parents in the United States.7 In addition, they must verify that
placing the child outside of the United States is in the child’s best
interests.8 However, the procedure is vague for what should be done when
something goes wrong.9
Part II of this article defines outgoing adoption and provides some
demographics about outgoing adoption. Part III explains why adults in the
United States are not adopting the thousands of children waiting for
adoption in their country. It also identifies reasons prospective parents
from other countries seek to adopt children born in the United States. Part
IV explores the benefits of outgoing adoptions for the child and some
concerns about the consequences of outgoing adoptions. Part V discusses
applicable laws governing the process, including a treaty, federal and state
statutes, and federal regulations. Part VI explores an alternative for
children in the child welfare system. Part VII addresses the process for
dealing with what happens when something goes wrong with the adoption.
Then, Part VIII discusses recommendations for improving the outgoing
adoption process. Finally, the article concludes with the argument that
although placement in the United States is ideal for children born in the
United States, outgoing adoption with adequate protections presents an
alternative for many children who do not find a permanent home in the
United States.
6 Id. § 14932(a)(1)(A).
7 Id. § 14932(a)(1)(B).
8 Id. § 14932(a)(1)(C).
9 The Hague Convention on Protection of Children and Cooperation in Respect of
Intercountry Adoption: Treaty Doc. 105-51 and its Implementing Legislation S.682:
Hearing Before the Comm. on Foreign Relations, 106th Cong. 48, 50 (1999) (statement of
William Pierce, National Council for Adoption).

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