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

Date01 January 2011
Published date01 January 2011
Subject MatterArticles
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
DOI: 10.1177/0002716210382389
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
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).

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