Safeguarding the Interests of Children in Intercountry Adoption: Assessing the Gatekeepers

• Author: D. Marianne Blair
• Position: Professor of Law and Co-Director, Comparative and International Law Center, University of Tulsa College of Law
• Pages: 349-403

Page 349

When properly regulated, intercountry adoption has enormous potential to improve the lives of some of the thousands of orphaned and abandoned children around the globe. In recent decades, advocates of intercountry adoption have worked tirelessly to promote the institution and to create a viable legal framework, through the development of public and private international conventions and domestic law reform, so that children have the opportunity to be raised by permanent families when such placements are not available in their countries of origin.

The base of this regulatory system is the Convention on the Rights of the Child (CRC),¹ a human rights treaty now ratified by all but a handful of nations,² which proclaims that the best interests of children must be the "paramount consideration" in any adoption system, and directs that intercountry adoptions be conducted with safeguards and standards equivalent to domestic adoption.³ An Optional Protocol to the CRCPage 350 (Optional Protocol),⁴ with 103 states parties,⁵ requires contracting nations to criminalize the improper inducement of consent and to enact laws and institute programs to deter the sale of children.⁶ The Hague Convention on Protection of Children and Co-operation in Respect of Intercounty Adoption (Hague Intercountry Adoption Convention),⁷ currently with sixty-eight contracting states,⁸ further implements the goals of the CRC by creating a framework of standards and practices, requiring governmental accreditation or approval of facilitators, and establishing central authorities in each nation to oversee its requirements.⁹ Both sending¹⁰ and receivingPage 351 nations,¹¹ including the United States,¹² have also devoted considerable attention during the last decade to domestic legislative and regulatory reform of their transnational adoption practices.

Nevertheless, as the nations of the world move toward fully implementing the general directives of the CRC and the more specific requirements of its Optional Protocol and the Hague Intercountry Adoption Convention, they face enormous challenges in creating regulatory systems sufficient to ensure that transnational adoption will be conducted in a manner that best serves the needs of children. During the past two decades, the number of children adopted transnationally has increased dramatically.¹³ Just within the United States, the number of childrenPage 352 immigrating to join adoptive families has more than tripled since 1990.¹⁴ Increased interest in intercountry adoption on the part of prospective adoptive parents, and an increased willingness in some nations of origin to place children, has altered not only the quantity of transnational adoptions, but also the nature of those facilitating these adoptions. Prior to the 1990s, most international adoption agencies were philanthropic or missionary organizations.¹⁵ During the past twenty years, however, the number of international adoption agencies in the United States has more than doubled, and many facilitators are now private or for-profit companies and individual entrepreneurs.¹⁶ While increased willingness on the part of families to adopt internationally and growth in the number of facilitators may expand the opportunities for children to find permanent homes, these trends also exacerbate the risks of unethical or negligent adoption practices that are harmful to children and magnify the need for regulation at both the international and domestic levels to deter such practices.

Although outright prohibition of intercountry adoption has few adherents in the international community,¹⁷ an intense debate has emergedPage 353 regarding the manner in which the institution should be regulated.¹⁸

Page 354

Professor Elizabeth Bartholet, one of the most widely-respected proponents of intercountry adoption, through her current and past scholarship, ably describes the risks of over-regulation, and cautions that recent international and domestic reforms have been used by opponents of intercountry adoption to stifle or delay such placements, to the detriment of waiting children.¹⁹ Though we are in fact in agreement on many points, in this Essay I wish to balance her valuable insights by sharing a different perspective, which is that the risks of inadequate regulation are equally compelling.

Intercountry adoption will continue to provide a viable option for children who need families only if international and domestic regulation can be strengthened so as to effectively deter some of the systemic inadequacies that have so tragically dis-served many children's needs. In this Essay, I will focus on two areas of concern-trafficking and the displacement of domestic adoption. Part I will review information that has emerged during the past decade regarding the pervasive nature of the problems associated with these issues. Part II will briefly review and assess current regulation and some anticipated reforms at the international and domestic levels aimed at avoiding similar abuses. Though each of these topics deserves far more detailed scrutiny than the scope of this Essay permits, I hope to convey through this brief overview my belief that it is vitally important for those who are deeply committed to intercountry adoption to critically examine current practices and continue to creatively explore the potential for increased regulation to address current deficiencies.

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I Creating Families for Children or Children for Families?

In a recent article, Professor Sara Dillon sets forth a compelling argument that a vibrant international network for intercountry adoption is a human rights imperative because of its potential to provide homeless and institutionalized children a greater opportunity to acquire a "family of [their] own."²⁰ Professor David Smolin asserts persuasively that the current operation of intercountry adoption in many nations violates the human rights of children because ineffective regulation of the placement process has generated widespread child trafficking.²¹ Though they incorporate human rights analysis into their theses very differently, these scholars in fact share a common premise, one supported by most advocates of intercountry adoption, i.e., that the children placed through intercountry adoption should be those who would be in need of families even if intercountry adoption did not exist²² Determining which children satisfy this criterion is tremendously difficult for members of the adoption community and the scholars who are assessing the institution, as well as for the regulators at both international and domestic levels striving to implement this standard.²³ Nevertheless, mounting evidence has emerged over the past decade suggesting that adoption practices creating children for intercountry adoption are neither isolated nor uncommon.

A Trafficking

1. Cambodia

While informed debate about the extent of trafficking in intercountry adoption would clearly benefit from additional authoritative investigation by governmental and international bodies,²⁴ the global scope of illicit practices is apparent even from the official reports and governmental responses that have become public in recent years. Most compelling inPage 356 this regard are the findings of a recent investigation by the U.S. government into adoption practices in Cambodia.

Although adoption of Cambodian children by U.S. citizens occurred prior to the 1990s, Cambodia did not consistently enter the list of the top twenty nations sending children to the United States for orphan adoption until 1997.²⁵ Between 1997 and 2001, over 1,200 Cambodian children were placed for adoption in the United States.²⁶ During the autumn of 2001, U.S. embassy officials in Cambodia received notice from Cambodian human rights organizations regarding the recent abductions of two children.²⁷ The discovery of one of those infants in a local "orphanage" awaiting a U.S. adoption, and subsequent investigation by embassy staff revealing systemic documentation problems in many of the pending adoption files, raised serious concerns about immigration eligibility, ultimately triggering suspension of the processing of orphan petitions²⁸ for Cambodian children in December 2001.²⁹ As of the spring of 2006, this U.S. immigration moratorium had not been lifted.³⁰

The irregularities uncovered by the U.S. embassy staff prompted a criminal investigation by the U.S. Immigration and Customs Enforcement Office of the Department of Homeland Security (ICE), in conjunction withPage 357 other federal agencies, in which special agents traveled to Cambodia during the spring of 2002 to determine if U.S. citizens were involved in trafficking.³¹ In a summary of their report, issued in November 2004, the investigators provided a detailed description of the systemic trafficking enterprise that they uncovered.³² Baby recruiters would routinely approach families in local villages about their willingness to sell a child.³³ When a potential child was located, the recruiter would be paid a commission of approximately $50 by baby buyers.³⁴ The buyers, who were often "orphanage" directors or taxicab drivers, would then offer an infant's family a fifty-kilogram bag of rice and payments ranging from $20-$200, a substantial sum in a nation in which the average annual gross national income per capita is around $300.³⁵ Parents were sometimes told that they could visit their child at an orphanage in Cambodia, or that a rich family would raise their child in the United States and send the family money and photographs, and that the child could petition...