Members Only: the Need for Reform in U.s. Intercountry Adoption Policy

JurisdictionUnited States,Federal
CitationVol. 35 No. 04
Publication year2012


Members Only: The Need for Reform in U.S. Intercountry Adoption Policy

Colin Joseph Troy(fn*)

I. Introduction

In the last five years, Americans have adopted nearly seventy thousand children from foreign countries.(fn1) The trend of intercountry adoption, "the process by which a married couple or single individual of one country adopts a child from another country,"(fn2) is representative of the new globalized world, where families are formed and dissolved beyond the bounds of national borders.(fn3) Although intercountry adoption has enabled many adoptive parents to form loving families and provide caring living environments for countless children, intercountry adoption is not without its share of problems. Corruption and abuse, such as child trafficking, have in many cases marred the process of intercountry adoption.(fn4)

These impediments to safe intercountry adoption led the international community to pass the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption in 1993.(fn5) By signing the Convention, countries agree to "ensure that intercountry adoptions are made in the best interest of the child and with respect for his or her fundamental rights, and to prevent the abduction, the sale of, or traffic in children."(fn6) The Convention requires its members, who have signed and ratified the treaty, to follow certain protocols and procedures for intercountry adoptions between two countries that are members to the Convention. However, the Convention does not prohibit member countries from engaging in intercountry adoptions with nonmember countries.(fn7) Thus, although the United States officially joined the Convention on December 12, 2007, and the Convention's rules went into effect on April 1, 2008,(fn8) the United States still allows intercountry adoptions from countries that are nonmembers to the Convention.(fn9)

This Comment will examine the Convention in the context of intercountry adoption in the United States. Specifically, this Comment will focus on the effect that permitting the United States to continue intercountry adoption with nonmember countries has on attaining the Convention's goals. This Comment will argue that to effectuate the goals of the Convention, the United States must encourage nonmember countries to join the Convention and must eventually cease intercountry adoptions with nonmember countries that refuse to join. But to promote the best interests of the prospective adoptive children in nonmember countries, such a cessation must be done through a long-term, structured withdrawal, allowing nonmember countries time to develop their adoption infrastructure.

Part II of this Comment presents a brief history of intercountry adoption in the United States and explains problems associated with the growth of intercountry adoption. Part III examines the Convention's formation and its requirements, and finishes by summarizing the United States' ratification of the Convention. Part IV focuses on issues related to countries that are nonmembers to the Convention, including the lack of incentives nonmember countries have to join the Convention, the impracticality of the United States discontinuing adoptions from nonmember countries, and the difficulties developing nations have in implementing the Convention. Part IV closes by examining efforts by both the international community and the United States to encourage nonmembers to join the Convention. Part V proposes that the United States Department of State create a committee to encourage nonmember countries to join the Convention and also proposes that the United States begin a long-term withdrawal of intercountry adoptions from nonmember countries that refuse to join the Convention.

II. A History of Intercountry Adoption and the Formation of the Convention

This Part begins by discussing the growth of intercountry adoptions within the United States and then examines problems that developed internationally as a result of the rise of intercountry adoption.

A. The Rise of Intercountry Adoption in the United States

In the United States, the rise of intercountry adoption began after World War II, when large numbers of children orphaned or abandoned abroad as a result of the war were adopted in America.(fn10) The trend of Americans adopting foreign children continued to grow as more wars, natural disasters, and medical epidemics led to more children losing their biological parents and becoming orphans.(fn11) Currently, the United States is the country that receives the largest number of children through intercountry adoption, almost half of all children internationally adopted in a given year.(fn12) The trend of the United States adopting large numbers of foreign children is indicative of the larger trend in intercountry adoption of wealthier countries adopting children from poorer developing nations.(fn13)

Over time, social and legal changes within the United States have also fueled intercountry adoption.(fn14) Within the United States, the advent and increased use of contraception, the legalization of abortion, and the increase in single parents opting to keep their children instead of putting them up for adoption have led to fewer domestic infants being available for adoption.(fn15) The resulting decrease in the number of American babies available for adoption led many parents seeking to adopt to choose intercountry adoption.(fn16) This influx of parents seeking intercountry adoption, coupled with a realization by "sending countries"(fn17) that intercountry adoption could reduce high orphan populations, led to the increase of intercountry adoption in the United States.(fn18) Generally, the increase in intercountry adoptions by United States citizens is mutually beneficial to both the United States and the various sending countries; adoptive parents in the United States get a child they wish for and the poverty burden in the sending country is lessened by providing an orphan with a suitable home abroad.(fn19)

B. Problems with and Reactions to the Growth of Intercountry Adoption

As the number of intercountry adoptions in the United States has increased, so has the number of problems associated with the adoption process. For example, conflicting laws between the United States and sending countries, along with bureaucratic red tape, have made intercountry adoption more difficult.(fn20) Problems obtaining visas, increased bureaucracy, constantly changing laws, and an increased demand for adoptions have all led to corruption in the intercountry adoption process.(fn21) The increase in intercountry adoptions(fn22) and the resulting corruption eventually led to the creation of a black market for babies,(fn23) which was fueled by corrupt practices like kidnapping and child trafficking.(fn24) In these black markets, "baby brokers" pay birth mothers or women posing as mothers and then place the children into the adoption market for sale as a commodity.(fn25) Because of their illicit nature, the black markets lack any law or regulation ensuring the safety or best interests of the children involved.(fn26) Following emergencies and natural disasters that lead to a spike in the number of orphans, vulnerable children may be abducted and trafficked through the intercountry adoption process.(fn27) The Internet has also bolstered the intercountry-adoption black market because it ultimately makes finding an adoptive child cheaper, which in turn makes baby trafficking more profitable for child traffickers.(fn28) Authorities have an even more difficult time catching child traffickers when black market adoptions are conducted through the Internet.(fn29)

Strong reactions to news stories about child trafficking and tales of a black market where children were being sold as commodities led to international efforts to create a more regulated system for international adoption.(fn30) The United Nations General Assembly adopted the Convention on the Rights of the Child in 1989.(fn31) More recently, in 1993, the international community, recognizing the need for a multilateral approach,(fn32) responded to the challenges posed by intercountry adoption through the Convention.(fn33)

III. The Hague Convention

On May 29, 1993, the seventeenth session of The Hague Conference on Private International Law adopted the Convention.(fn34) The Convention served as a large step by the international community to legitimize and attempt to regulate intercountry adoption on an international level.(fn35) A watershed event in intercountry adoption, the treaty was the first to provide formal multinational recognition of intercountry adoption.(fn36) The Convention improved upon preceding international instruments such as the 1989 United Nations Convention on the Rights of the Child, and added new safeguards to the intercountry adoption process by regulating both sending and receiving countries.(fn37) The Convention has been called "the most significant international agreement regarding the regulation of intercountry adoptions"(fn38) and lauded as "the most ambitious and monumental action taken . . . regarding the need to protect children, birth parents, and adoptive parents involved in intercountry adoptions from child trafficking and other abuses."(fn39)

A. The Framework of the Convention

The Convention is founded on the belief that all children should be raised in a family...

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