Ratification by the United States of the Convention on the Rights of the Child: Pros and Cons from a Child’s Rights Perspective

• Date: 01 January 2011
• DOI: 10.1177/0002716210382389
• Author: Elizabeth Bartholet
• Published date: 01 January 2011
• Subject Matter: Articles

80 ANNALS, AAPSS, 633, January 2011

This article discusses the significance of the United

States’ ratification of the CRC, concluding that even if

the treaty is not self-executing, ratification would make

a major difference. It would enable the United States

to better promote children’s rights abroad, and it would

push the United States to develop its domestic law in

dramatically new directions that empower children.

The CRC provides children with powerful affirmative

rights and imposes reciprocal duties on nation-states. It

provides rights to participate, including rights to be

heard and to make decisions on personal and political

matters; rights to receive important benefits, including

health, support, and education; rights to protection

against maltreatment; and rights to nurturing parental

care. All this contrasts with U.S. law’s negative rights

tradition, its emphasis on parental rights, limited recog-

nition of children’s rights, and related restriction of

state power to protect children. U.S. ratification could

have a positive impact, particularly in connection with

parental relationship rights and related maltreatment

issues. However, there is also a risk of negative impact,

given the problematic CRC provisions on international

and transracial adoption. The solution is ratification

with a reservation regarding Articles 20 and 21.

Keywords: Convention on the Rights of the Child

(CRC); ratification; international; transra-

cial; intercountry; adoption

United States ratification of the Convention

on the Rights of the Child (CRC) holds

both positive and negative potential for chil-

dren. On the positive side, the CRC represents

one of the strongest legal statements to date

that children have full human rights entitle-

ments, comparable with adults, and that their

interests should be valued at least equally with

adults’ interests. As the only country other than

Somalia not to have ratified the CRC,1 the

United States would make a major statement

both externally and internally by finally ratify-

ing the treaty.

The United States is now limited in its abil-

ity to promote children’s rights in other coun-

tries by its failure to ratify. Ratification would

enable us to work more effectively with the

Ratification by

the United

States of the

Convention on

the Rights of

the Child: Pros

and Cons from

a Child’s Rights

Perspective

By

ELIZABETH BARTHOLET

DOI: 10.1177/0002716210382389

U.S. RATIFICATION OF THE CONVENTION ON THE RIGHTS OF THE CHILD 81

United Nations (UN) Committee on the Rights of the Child and others to press

for important reforms for children abroad, such as the elimination of child sol-

diering and child slavery and the promotion of better health and education

opportunities.

Ratification would also mean that the United States would accept the CRC as

international law for internal purposes. Even assuming that the CRC is not self-

executing and thus not automatically legally effective, it would likely have a pow-

erful influence on the future development of U.S. law in a way that would

generally advance children’s rights.

On the negative side, the CRC presents real risks to unparented children

because key provisions limit adoption and thus limit children’s prospects for find-

ing the nurturing homes central to their human needs. International and transra-

cial adoption represent important options for unparented children, given the

limited likelihood that they will find parents in their national or racial groups of

origin and the advantages for children of adoption over foster and institutional

care. However, the CRC provides strong preferences for keeping children within

their national and racial groups of origin. It requires that in-country options,

including foster care and other “suitable” care, be preferred over out-of-country

adoption, and leaves countries free to ban international adoption altogether. It

also requires that in placing children, “due regard” be paid to ethnic, religious,

and cultural backgrounds.

CRC ratification would encourage U.S. action to further restrict international

adoption, both of children born abroad and of children born in the United States.

It would risk relegating more unparented children abroad to the harmful condi-

tions that characterize life in institutions and on the streets and preventing chil-

dren in foster care here from finding adoptive homes abroad. It would support

reinstitution of the racial-matching policies in the United States that limited

black children’s opportunities to move from foster care to adoption and were

accordingly outlawed by Congress in the mid-1990s in the Multiethnic Placement

Act of 1994 (MEPA; amended 1996).

I believe that the United States should ratify the CRC, given its radical vision

of children as full rights-bearing individuals. But a reservation should be attached

to the ratification rejecting the CRC provisions that limit international and trans-

racial adoption. This would protect against the major harm that CRC ratification

Elizabeth Bartholet is the Morris Wasserstein Professor of Law and faculty director of the

Child Advocacy Program (CAP) at Harvard University. She teaches civil rights and family law,

specializing in child welfare. Her publications include Nobody’s Children: Abuse and Neglect,

Foster Drift, and the Adoption Alternative (Beacon 1999); Family Bonds: Adoption, Infertility,

and the New World of Child Protection (Beacon 1999); “International Adoption: The Human

Rights Position” in Global Policy (2010); “The Racial Disproportionality Movement in Child

Welfare” in Arizona Law Review (2009); “International Adoption: The Child’s Story” in

Georgia State University Law Review (2007); “International Adoption: Thoughts on the

Human Rights Issues” in Buffalo Human Rights Law Review (2007); and “Where Do Black

Children Belong? The Politics of Race Matching in Adoption” in University of Pennsylvania

Law Review (1991).