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

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. INT’L & COMP. L. 621, 631–32 (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).