Regulating Corruption in Intercountry Adoption.

• Author: Bunn, Jordan

TABLE OF CONTENTS I. INTRODUCTION 686 II. THE RISE OF INTERCOUNTRY ADOPTION AND THE INTERNATIONAL ATTEMPTS TO REGULATE IT 688 A. A Brief History of Intercountry Adoption 688 B. International Agreements Addressing Intercountry Adoption 690 1. The United Nations Convention on the Rights of the Child 692 2. The UN Optional Protocol on the Convention for the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography 693 3. The Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption 694 III. THE CURRENT STATE OF INTERCOUNTRY ADOPTION AND THE NEED FOR REFORM 697 A. The Guatemalan Adoption Crisis 700 B. Troubles with Ethiopian Intercountry Adoption 702 1. When and to What Extent Ethiopian Intercountry Adoption Was Compromised. 702 2. The International Response to Ethiopia's Adoption Problems 705 3. Recent Developments in Ethiopia 706 IV. WHY THE CURRENT LEGAL FRAMEWORK FALLS SHORT OF PREVENTING THESE CRISES 709 A. The Imbalance of Resources and Obligations Between Sending and Receiving States 709 B. The Role of Private Adoption Agencies in Intercountry Adoption 711 C. Existing Policy Proposals 713 1. Full Moratoria 713 2. The "Aid Rule" 714 3. A Global Effort to Regulate Intercountry Adoption 716 a. A Global Assistance Fund 716 b. A Global Intercountry Adoption Oversight Body 717 V. RECOMMENDATIONS TO REDUCE CORRUPTION IN INTERCOUNTRY ADOPTION 718 A. Every Adoption Should Proceed Like a Hague Adoption 719 B. Receiving States Should Provide a Second Check as to Whether a Child Is Adoptable and Consents Were Properly Obtained 721 C. Private Agencies Must Maintain the Approval of Every Major Participant in the Adoption Process 722 D. Greater Transparency and Follow-up Reporting by Receiving States 725 VI. CONCLUSION 726 I. INTRODUCTION

Throughout its relatively brief history, intercountry adoption has been the subject of much praise, criticism, and general controversy. (1) Proponents of intercountry adoption view it as an opportunity for hopeful parents and children to mutually benefit, rather than each waiting--perhaps indefinitely--to be matched from within the smaller pools of available children or parents in their own countries. (2) Additionally, the building of cross-cultural families is viewed as a positive for the parents and children involved and for society more generally. (3)

On the other hand, critics view transnational adoption as further entrenching unhealthy power dynamics between wealthier countries and developing countries. (4) Corrupt adoption practices in the poorer sending countries have fortified this narrative. More and more allegations have arisen in recent decades suggesting that many of the infants and toddlers adopted through intercountry-adoption processes were not actually orphaned children in need of a home. (5) Instead, many of these children were made "adoptable" by financial incentives targeting destitute parents or by trafficking, kidnapping, or forced pregnancy. (6) Journalist E.J. Graff has gone as far as to suggest that "many international adoption agencies work not to find homes for needy children but to find children for Western homes." (7) The current challenge in regulating intercountry adoption is finding a system that eliminates corruption but does not unnecessarily hinder adoptions.

The aim of this Note is to discuss practical ways the current regime can better embody the principles set forth in the international conventions governing adoption. With this objective in mind, this Note offers pragmatic criticism of some of the more prominent proposals without evaluating the numerous theoretical positions often associated with the subject. (8) Part II briefly describes the development of intercountry adoption and the international instruments that seek to regulate it. Part III takes a deeper look at the patterns of corruption that have played out in intercountry adoption, using Guatemalan and Ethiopian adoptions as case studies for greater insight into the problem. Part IV analyzes some of the shortcomings of the current international framework, as well as some of the existing policy proposals for overcoming them. Specifically, it critiques existing proposals that suggest a total abandonment of the current framework as well as those that call for new systems that would increase the administrative burden on all already overburdened groups. Finally, Part V suggests that, to best reduce corruption, the wealthier developed countries in the intercountry-adoption system should take on more responsibility in monitoring and increasing transparency in intercountry adoptions.

2. THE RISE OF INTERCOUNTRY ADOPTION AND INTERNATIONAL ATTEMPTS TO REGULATE IT

   1. A Brief History of Intercountry Adoption

      Intercountry adoption first developed in Western countries following World War II as a way to meet the needs of children who were lost or separated from their families during the war. (9) The United Nations Children's Fund (UNICEF) International Child Development Center has referred to those early periods of intercountry adoption as "an ad hoc humanitarian response to the situation of children orphaned by war." (10) In the earlier years, people chose international adoption in furtherance of altruistic, humanitarian, and missionary efforts following global crises. (11)

      The number of intercountry adoptions steadily rose in the decades following World War II, increasing significantly in the 1990s. (12) The period leading up to and during the 1990s saw an increase in both the number of parents looking to adopt and the number of adoptable children. (13) The rise in Western demand is largely associated with societal changes that took place in the 1960s. (14) For one thing, increased access to contraception and abortions reduced unplanned pregnancies in Western countries. (15) Additionally, more prospective parents were looking to adopt as more women delayed having children to the point of outwaiting their fertility. (16) The increase in adoptable children is likely tied to China opening its doors to intercountry adoption in 1992, coupled with the surplus of adoptable children in China as a result of its one-child policy enacted in 1979. (17) The increase is also tied to the number of children who were orphaned during the AIDS crisis. (18) In 2004, over forty-five thousand children were adopted via intercountry adoption. (19)

      In more recent years, however, the number of intercountry adoptions has declined. (20) In a little over a decade, the number of intercountry adoptions in the United States--the country that receives the most internationally adopted children--dropped from 22,989 in 2004 to only 5,370 in 2016. (21) Professor Marianne Blair suggests that this decrease might be explained by "tighter restrictions in both sending and receiving countries, as well as the development of domestic adoption systems and a growing antipathy towards international placement in many traditional sending nations." (22) However, many explanations offered for this dramatic decline reference the widely publicized corruption in the adoption processes of developing countries. (23)

   2. International Agreements Addressing Intercountry Adoption

      In the earlier years of intercountry adoption, international placements were only regulated to the extent that the countries involved created their own laws and processes relating to adoption. (24) As a result, the legal framework varied greatly depending on which countries were involved in the adoption. (25) By the 1970s, as the practice grew more common and allegations of corruption became more frequent, the pressure for international governance grew. (26)

      The international community responded to this pressure with three major conventions: (27) the United Nations Convention on the Rights of the Child (UN CRC); (28) the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (Optional Protocol); (29) and the Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption (Hague Convention). (30)

      Every intercountry adoption involves two distinct state actors: (1) a "state of origin" (or "sending state"), the country from which children are adopted; and (2) a "receiving state," the country where adoptive parents accept children for permanent placement in their homes. (31) While, recently, many sending and receiving nations have made efforts to better regulate intercountry adoption domestically, (32) many of these laws and regulations are guided by the frameworks and principles laid out in the international conventions. (33) The first two conventions--the UN CRC and the Optional Protocol--primarily address adoption in passing, as they speak to broader, more general themes. (34) Of these three instruments, the Hague Convention is the only one which deals directly and exclusively with intercountry adoption. (35) For this reason, some scholars see the Hague Convention as the most promising tool in existence for overcoming the bribery and corruption that have traditionally plagued intercountry-adoption processes. (36)

      1. The United Nations Convention on the Rights of the Child

         The UN CRC was adopted on November 20, 1989 and entered into force on September 2, 1990. (37) The convention covers a variety of topics that are all grounded in the same standard: "the best interests of the child." (38) The UN CRC addresses adoption briefly and in general terms. (39) Although the convention acknowledges intercountry adoption as a possible means of care for a child, Article 21(b) of the UN CRC limits the incidence of international placements. (40) It only allows the consideration of international placement in cases where "the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child's country of origin." (41) The UN CRC does, however, raise an important element of...