30 See D Smolin, ‘Aborting Motherhood: Adoption, Natural Law, and the Church’ (2021) 11 Journal of Christian Legal Thought 30.
31 Alternative Care Guidelines, para. 36.
32 Article 18(2).
33 See, for example, D Smolin ‘Concluding Considerations’ in C Baglietto, N Cantwell and M Dambach Responding to Illegal Adoptions: A Professional Handbook (International Social Service 2016).
34 See Committee investigating intercountry adoption, Consideration, Analysis, Conclusions, Recommendations and Conclusions (Feb. 2021) [hereinafter Dutch Summary]. See also Section 4(a) below.
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(d) Intercountry Adoption
i. The conditional legal status of full-severance adoption impacts intercountry adoption
The nature and conditional legal status of full severance forms of adoption impact intercountry adoption in at least four ways. First, if full adoption is suspect because it involves a profound loss of the child’s identity rights, including to ‘nationality, name and family relations,’35 intercountry adoption is even more suspect as it involves an even greater deprivation. Intercountry adoption of course involves the additional loss of the right to preserve nationality under UNCRC Article 8, and also commonly involves a loss of the child’s original language and culture. Second, intercountry adoption almost always involves, in legal form, full adoption, rather than simple adoption, for several reasons: (a) full adoption may be normative in the receiving State and hence viewed as superior; (b) receiving States may prefer the full severance model of adoption since it legally severs any relationship of the adoptee to their original family members, removing the possibility of a chain of familial-based immigration, and (c) simple adoption may be seen as inappropriate for intercountry adoption, given the vast geographical distances common in most international adoptions, and the linguistic, cultural, and economic differences between adoptive families and original families. Third, intercountry adoption to receiving nations where full adoption is normative or common, from States of origin where full adoption is not recognised by local law or custom, invites fraud and child laundering. It is easy to mislead original family members as to the significance and impact of ‘consenting’ to an adoption, when the family of origin has no cultural context for understanding that such consent means losing their child forever and being legally labelled a stranger to their own child.36 Even with the best efforts to explain (which is often lacking), families of origin and even local government officials may have difficulty understanding the consequences of an intercountry adoption. Fourth, the secrecy and privacy often associated with full adoption makes full severance adoption systems particularly vulnerable to illicit adoption practices, and particularly resistance to investigation and remedies for such. Various forms of illicit practices, including obtaining children illicitly through force, fraud or funds (child laundering), and the use of pressure tactics against single women and/or poor families, easily hide within the secret spaces and closed-record environments provided in full adoption. This difficulty is exacerbated by intercountry adoption, where multiple legal systems are involved, separated
geographically, linguistically, and culturally.
ii. The Legality of Intercountry Adoption is Limited by Several Additional Principles
The child rights principles applicable to adoption generally also apply to intercountry adoption. Additional child rights principles apply specifically to intercountry adoption.
35 UNCRC Article 8(1).
36 See D Smolin, ‘The Case for Moratoria on Intercountry Adoption’ (2021) 30(2) Southern California Interdisciplinary Law Journal 501, 509-10 and sources cited notes 63-73.
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(a) There is no State obligation for either receiving or sending states to participate in intercountry adoption. Under Article 21 UNCRC, States that “recognize and/or permit the system of adoption shall recognize that inter-country adoption may be considered as an alternative means of child’s care...” Intercountry adoption thus has a double layer of optionality under the UNCRC: States do not need to practice or recognise adoption at all, and those that do are not obligated to practice intercountry adoption. States that have ratified the Hague Adoption Convention are not obligated to participate in intercountry adoption.
(b) Intercountry Adoption is legally limited by the Subsidiarity Principle
The subsidiarity principle creates a hierarchy or ranking of preference as to interventions on behalf of the child, both as general classifications of interventions and also in regard to each child. An intercountry adoption examined in isolation might appear legal but would violate international standards if such an adoption was accomplished despite the availability of another intervention preferred under the subsidiarity principle. Subsidiarity has multiple implications, as explored below.
(i) Maintaining and Re-Establishing Identity Rights
The first preference under international law is to maintain or restore the child’s relationship with his or her original parents and original family. The State is required, as noted above, to ‘render appropriate assistance to parents in the performance of their child-rearing responsibilities.’37 It must therefore act affirmatively to maintain and/or re-establish the child’s identity rights, including ‘nationality, name and family relations.’38 An intercountry adoption is illegal if the State could have maintained the child with his or her original family with ‘appropriate assistance’39 and failed to do so. Further, an intercountry adoption is illegal if the State failed in its obligation to ‘ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.’40 In addition, an intercountry adoption is illegal if the State failed to ‘provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity,’ where ‘a child is illegally deprived of some or all of the elements of his or her identity.’41 These kind of State failures are quite common globally. Indeed, many sending States lack capacity and systems to systemically fulfill these State obligations to assist families, actively re-unite, and process separations of children from their families formally through administrative and judicial systems which operate ‘on the basis of all pertinent and reliable information.’42 However, building intercountry adoptions systems upon the systematic incapacities of States to fulfill these state obligations would build on a legal foundation of sand. Such systems built on systemic violations of the rights of the child would be systemically illegal.
(ii) Preference for Domestic Adoption over Intercountry Adoption
37 Article 18(2).
38 Article 8(1).
39 Article 18(2).
40 Article 9(1).
41 Article 8(2).
42 Article 21(a).
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Where State obligations to maintain and/or re-establish the child’s identity rights have been fulfilled, there remain further options which, in general, are preferred to intercountry adoption. First, there is general agreement that domestic adoption is preferred to intercountry adoption. This requirement should be viewed both systemically and individually. States that have more difficult and onerous requirements for domestic adoptive families than for intercountry adoptive families would be systemically violating this part of the subsidiarity principle. For example, China, for many years the leading country of origin, severely limited domestic adoption within China through age limits and application of China’s population control rules to domestic adoption, while having far less restrictive rules for foreign families.43 Building an intercountry adoption system upon a system which systemically restricts and represses domestic adoption and prefers intercountry adoption to domestic adoption would also build upon a legal foundation of sand: such a system built on systemic violations of the rights of the child would be systemically illegal.
(iii) Intercountry Adoption versus Foster Care, Institutional Care, and Congregate Care
There have disputes over how the subsidiarity principle applies to a choice between intercountry adoption and various forms of alternative care in the country of origin, including foster care, family-based care, institutional care, residential care, congregate care, and informal care. There are a spectrum of positions.44 On the one hand, some may interpret the UNCRC’s language in Article 21 to prefer virtually any form of alternative care in the country of origin to intercountry adoption. Article 21 states that intercountry adoption ‘may be considered as an alternative means of child’s care, if 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.’45 At the other end of the spectrum, some consider that only domestic adoption or a return to the original family are ranked above intercountry adoption, because those are the only options that provide permanency for the child. Proponents may rely here on the preamble of the Hague Adoption Convention, which states: ‘Recognizing that intercountry adoption may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in his or her State or origin;’ (emphasis added) Finally, some may resist any fixed hierarchy by category and argue that such choices are ultimately governed by the best interests of the child standard, which must be individually applied to each situation, and which as to adoption ‘shall be the paramount consideration.’46 As to these interpretative approaches, several things can be said. First, an approach that reads the UNCRC and Hague Adoption Convention as fundamentally in conflict seems incongruent with the understanding that the two Conventions are intended to be read together. The Preamble to the Hague Adoption Convention explicitly builds on ‘the principles set forth’ in the UNCRC, Article 21 of which, particularly promotes the creation of future multilateral agreements, encouraging the creation of the Hague Adoption Convention. Hence, the two Conventions, created just four years apart, are intended to be interpreted together, which favours interpretations which harmonise the Conventions. Second, while it is true that the best interests of the child is the ‘paramount consideration’ for adoption under the UNCRC, there are dangers in relying solely on individual determinations made in the name of the sometimes vague and elastic best interests of the child standard. Cantwell’s work on the best interests of the child in intercountry adoption demonstrates that ‘many decisions justified by best interests considerations alone have had very damaging consequences for children.’47 Thus, it is necessary to interpret
43 See infra notes and accompanying text.
44 See S Brakman, this volume.
45 Article 21(b).
46 Article 21.
47 N Cantwell, The Best Interests of the Child in Intercountry Adoption (UNICEF 2014), page 4.
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the best interests of the child ‘within a human rights framework.’48 The best interests of the child principle is fulfilled in significant part by adherence to more specific human rights and children’s rights standards, rather than being a means to ignore such specific standards. Further, the best interests of the child standard governs the interests of children generally, as well as those of each child impacted by an individual adoption or alternative care decision. Hence, the best interests standard should not be used to avoid systemic analysis of systems of care for children, including adoption, intercountry adoption, and alternative care systems. Further, the best interests standard should not be used to avoid the articulation of more specific standards which protect the best interests of the child. The purpose of designating the best interests of the child as the paramount consideration for adoption is to make clear that the interests of the child are more important than those of adults, which is necessary because much of the history and even present practices of adoption are more orientated toward the interests of adults than children. Given these two interpretative points, several conclusions can be drawn. First, the general language of the UNCRC which seems to favour any form of care over intercountry adoption is limited by the critical term ‘suitable.’ An alternative care option is not preferred to intercountry adoption unless it is a ‘suitable manner’ of care.49 The interpretation of what is a ‘suitable’ form of alternative care for children has developed since the creation of the UNCRC, in significant part through the development of the Guidelines for the Alternative Care of Children. From these Guidelines and other developments we learn that, subject to very limited exceptions, ‘alternative care for young children, especially those under the age of 3 years, should be provided in family-based settings.’50 Hence, institutional or congregate care generally would not be ‘suitable care’ for a child under the age of three, unless it was for a short duration as a part of a planned move to another form of care. Similarly, large-scale institutional or residential care is generally viewed as an inappropriate form of alternative care and hence would not be a suitable form of care. Further, there could be situations where a form of care that was “suitable” as a general category of care, was not suitable or appropriate for a particular child or sibling group. Taking account of these developments in articulating what is ‘suitable care’ for children, it should be clear that not every care option for a child in the country of origin should be viewed as having priority over intercountry adoption. On the other hand, the language in the preamble of the Hague Adoption Convention that intercountry adoption ‘may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in his or her State of origin’ should not be read as an encompassing mandate to favour intercountry adoption over every option except domestic adoption. Formal legal permanency is a benefit and goal for a child, but it is not the only goal. Informal care, long-term foster care, and kinship care in a child’s own country may offer children the benefits of ‘continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background.’51 Informal and formal kinship care offers the enormous advantage of maintaining the child within their extended family of origin, even if such care is not formalised by an adoption. In addition, some children may lack the capacity or motivation, due to age or other characteristics, for the enormous linguistic and cultural adaptations necessary for most intercountry adoptions. It would be a distortion of both Conventions to read them to favour intercountry adoption automatically over every other option beyond either return to the original parents or formal adoption. This preamble language mirrors the UNCRC’s treatment of intercountry adoption in use of the word ‘may’ rather than ‘shall’ in describing the role of intercountry adoption. Even under the Hague Adoption Convention, participating in intercountry adoption is never a state obligation, even for nations that have ratified the Convention. Hence, there is no category of cases where the subsidiarity or best interests principles require intercountry adoption.
48 Ibid.
49 Article 21(b).
50 Alternative Care Guidelines, para. 22.
51 CRC, art 20(3).
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(iv) Sale of Children, Child Trafficking, and Child Laundering
The sale of children, trafficking, and child laundering are sometimes overlapping terms which constitute serious violations of the rights of the child and often crimes. Such practices also commonly violate other rights of the child, since they typically cause unnecessary separations of children from their original families, communities, and nations. International instruments define these illicit practices and create state obligations to prohibit, prevent, and remedy them. UNCRC Article 35 requires States to take ‘all appropriate national, bilateral and multilateralmeasures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.’ One of the stated objectives of the Hague Adoption Convention is to ‘prevent the abduction, the sale of, or traffic in children.’ This language in combination with the preparatory materials indicate that the Hague Adoption Convention views obtaining children illicitly for adoption (i.e., through force, fraud, or funds) as a form of exploitation and hence a form of child trafficking.52 The OPSC requires States to prohibit the sale of children, which is generally defined as ‘any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration.’ The OPSC further requires States to criminalise the particular form of sale of children defined as ‘
mproperly inducing consent, as an intermediary, for the adoption of a child in violation of applicable international legal instruments on adoption.’53 Child trafficking is defined in the Palermo Protocol as ‘[t]he recruitment, transportation, harboring or receipt of a child for the purpose of exploitation.’ The definition of ‘exploitation’ in the Palermo Protocol ‘shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.’ The phrase “shall include, at a minimum” indicates the open-ended nature of the definition which may include forms of exploitation beyond those listed. Hence, it is appropriate for the Hague Adoption Convention to consider that, under some circumstances, the illicit sale and/or transfer of a child which separates a child from the original family can also constitute a form of child trafficking. The term ‘child laundering’ is not contained in the official international instruments on adoption, but nonetheless is a useful descriptive term used commonly in the literature. Child laundering involves obtaining children illicitly by force, fraud, or funds, mis-labelling the children as adoptable orphans, and then processing them through official adoption systems. Child laundering describes the troubling way that the official processes created for intercountry adoption can themselves become vehicles for illicit conduct.54
3. Applying International Standards to the Modern Era of Intercountry Adoption
Having spent more than fifteen years documenting pervasive violations of international standards in intercountry adoptions, there is no way to present anything close to the full evidence in this chapter. Hopefully, this brief survey will convey the depth of the issues.
52 D Smolin, Child Laundering and the Hague Convention on Intercountry Adoption, 48 University of Louisville Law Review 441, 447-61 (2010), available on https://works.bepress.com/david_smolin/.
53 OPSC section 3(1)(a)(ii).
54 My own work extensively describes the concept and phenomenon of child laundering. See https://works.bepress.com/david_smolin/.
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There has been a misperception that the primary deficits in intercountry adoption practices occur in the countries of origin with receiving States being victims of that misconduct. In order to counter that misperception, this review begins with deficits on the receiving State side.
(a) The Dutch Report
In February 2021 the Dutch Committee investigating intercountry adoption released its reports and recommendations, including an immediate suspension.55 The Dutch Government responded by suspending intercountry adoptions.56 Initially the Committee investigated adoptions from five countries Bangladesh, Brazil, Colombia, Indonesia, and Sri Lanka from 1967 to 1998.57 The Committee ultimately screened an additional 18 countries beyond the initial five, both before and after Hague Adoption Convention came into force. The Committee found that ‘abuses were or are reported in all the countries screened, and abuses continued to take place after the Hague Adoption Convention came into force in the Netherlands in 1998.’58 Significantly, the Committee concluded that similar abuses took place before 1967, after 1998 and in other countries. Regardless of the different contexts, it has been shown that abuses related to intercountry adoption continue to occur to this day, all over the world. The most important factors that maintain this situation are the demand for children and the international adoption market, which is driven by financial incentives and where socioeconomic inequality, poverty and the act of transforming children into commodities come together.59 Indeed, The Committee concluded that ‘abuses have been shown to be a near-permanent, structural problem.’60 The abuses found by the Dutch Government systemically violated nearly every principle governing adoption and intercountry adoption described above. While the best interests of children were invoked constantly,61 in fact ‘intermediaries saw their primary task as satisfying the demand for children.’62 Similarly, politicians, including members of the Dutch parliament and the ‘Dutch political establishment’ ‘primarily served the interests of adoptive families’.63 The relevant governmental ministries as to policy were ‘dominated by the demand for children and the interests of adoptive parents.’64 The entire system, as a whole, was subservient to the demand for children by families in the Netherlands, rather than serving the best interests of the child as the paramount consideration. This demonstrates that illegal intercountry adoption practices have their roots in the receiving States, the source of this demand pressure.
55 See Committee Investigating Intercountry Adoption, Consideration, Analysis, Conclusions, Recommendations and Conclusions (2021) [hereinafter Dutch Summary].
56 C Moses, ‘Netherlands Halts Adoptions From Abroad After Exposing Past Abuses’ New York Times (New York, 9 February 2021).
57 Dutch Summary (n 54) 23.
58 Ibid, 24.
59 Ibid, 15.
60 Ibid. See also 24.
61 Ibid, 8-10.
62 Ibid, 10.
63 Ibid, 11.
64 Ibid, 9.
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purportedly over-quota children and then sell them. Children were being illicitly obtained by force, fraud, or funds, labeled as adoptable orphans, and then placed for intercountry adoption.99 In more recent years Chinese adoptions have changed significantly. In a context where global intercountry adoption has declined by 85 per cent, adoptions from China have declined by more than 90 per cent prior to COVID (from 14,484 in 2005 to 1062 in 2019.)100 Yet, prior to the pandemic, China remained the leading country of origin.101 The characteristics of children adopted from China have also changed. In the past, the overwhelming majority of placements were healthy female infants or toddlers. Now, the children generally either have serious special medical needs or disabilities, or are much older children, with very few healthy infants or toddlers placed of any sex. The population policies of China have
also changed substantially, with multiple relaxations leading to a formal three child policy in 2021.102 Concern is now focused on the risks of an aging population amidst deeply falling birth rates. China now is missing the girls who were sent away. The demographic impact of China’s intercountry adoption programme should not be exaggerated. The estimated 125,000 plus girls sent away for intercountry adoption over decades are a small proportion of the perhaps 30 million missing girls from the same period of time. With a population of about 1.4 billion people and annual births between 1992 and 2020 between around 20 million to around 10.6 million, even China’s high point of around 14,500 intercountry adoptions in 2005 is demographically insignificant. From a demographic perspective, accounting for the rest of the missing girls is much more important.103 From an adoption and child rights standpoint, it is significant that adoptions from the dominant sending country for almost the entire period after creation of the UNCRC and Hague Adoption Convention systemically violated those standards. Whether adoptions from China continue to systemically violate international standards today, with the rapidly shrinking numbers and very different population of children sent abroad, is complex. It would be inappropriate under the subsidiarity principle for healthy young children, female or male, to be adopted internationally, as the domestic desire to adopt children can easily absorb the diminished number of such children available. As to the ‘special needs’ adoptions that are predominate, the question is whether China could, with reasonable effort, domestically provide adoptive families or other suitable alternative care for the small number currently being sent for intercountry adoption. Further, there are issues as to cultural and legal discrimination against disabled children and persons in China. The opaqueness of processes in China makes those questions difficult to answer, particularly in the midst of the pandemic.
3. Sale of Children, Child Trafficking, and Child Laundering in Adoptions from Africa, Latin America, East Asia, South Asia, and Southeast Asia
99 See sources cited n 93; B Demick ‘A Young Chinese Girl Pines for Her Twin’ LA Times (Los Angeles, 20 September 2009); Schuster Institute for Investigative Journalism, News Reports of Adoption Irregularities in China (Brandeis University, 31 July 2010) <http://www.brandeis.edu/investigate/ gender/adoption/ChinaNews.html> accessed 21 March 2022.
100 See Selman (n 1)
101 See ibid.
102 See BBC, ‘China allows three children in major policy shift’ BBC News (Online, 31 May 31 2021)
<https://www.bbc.com/news/world-asia-china-57303592> accessed 21 March 2022.
103 See Selman (n 1); Smolin (n 87); https://data.worldbank.org/indicator/SP.POP.TOTL?locations=CN; https://www.bbc.com/news/world-asia-china-51145251; https://www.bloomberg.com/news/articles/2022-01-17/why-china-is-struggling-to-boost-its-birthrate-quicktake.
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The sale of children, child trafficking, and child laundering have occurred commonly in many sending nations throughout the modern history of intercountry adoption. These illicit practices, particularly in Latin American sending nations, was a major impetus for creation of the Hague Adoption Convention.104 Child laundering occurred frequently in Southeast Asia for example, in Cambodia between January 1997 and December 2001,105 and recurrently in Vietnam.106 Child laundering was first documented in China in 2005 (with evidence indicating it continued in various forms for some years).107 South Asian child laundering has been documented extensively in India and Nepal.108 Likewise, such practices occurred on a very large scale in Guatemalan adoptions for most of the 2000s until intercountry adoptions were stopped in 2008.109 Child laundering and related illicit practices occurred significantly in African nations, for example, in the Democratic Republic of Congo, Ethiopia, and Uganda.110 While other examples could be listed, these are sufficient to indicate the pervasive nature of these illicit practices in the intercountry adoption system. Also pervasive has been the failure in almost all instances for states to provide remedies or assist the victims of these crimes.
4. Poverty and Intercountry Adoptions from Africa, Latin America, South Asia, and Southeast Asia
Under international standards the placement of children for intercountry adoption due substantially to poverty is a serious violations of the rights of the child, as outlined in Section two of this Chapter.111 Yet, intercountry adoption primarily due to poverty has been typical and treated as normal throughout its modern history, particularly in adoptions from Africa, Latin America, South Asia, and Southeast Asia.112 Intercountry adoption systems have systemically accepted abandonments and relinquishments caused primarily by poverty as valid grounds for adoptability without offering assistance to preserve families. Family preservation efforts designed to address poverty and thus avoid the need for adoptive placements have been rare.113 Systemically spending thousands of dollars to send the children of the poor abroad for adoption, often with the involvement of profiteering intermediaries, is like putting salt in the wounds of the vulnerable poor. Building intercountry adoption systems on such hypocritical cruelties is an ethical obscenity. The prevalent viewpoint that such adoptions are an acceptable response to poverty shows just how far intercountry adoption has strayed from any kind of viable human rights foundation.
104 Smolin (n 52).
105 D Smolin, ‘Child Laundering’ (2006) 52 Wayne Law Review 113, 135-46; T Maskew, ‘Child Trafficking and
Intercountry Adoption’ (2005) 35 Cumberland Law Review 619.
106 International Social Service, Adoption from Vietnam (2009) <https://resource-centre-uploads.s3.amazonaws.com/uploads/5366.pdf> accessed 21 March 2022; Schuster Institute for Investigative Journalism, Adoption: Vietnam (Brandeis University, 24 February 2011) <https://www.brandeis.edu/investigate/adoption/vietnam.html> accessed 21 March 2022.
107 See sources cited n 94.
108 See Smolin (n 105) 146-63; D Smolin, ‘The Two Faces of Intercountry Adoption’ (2005) 35 Seton Hall Law Review 403; UNICEF & Terre des hommes Foundation, Adopting the rights of the child: A study on intercountry adoption and its influence on child protection in Nepal (2008) <https://resourcecentre.savethechildren.net/document/adopting-rights-child-study-intercountry-adoption-and-its-influence-child-protection-nepal/> accessed 21 March 2022.
109 CICIG, Report on Actors involved in Illegal Adoptions in Guatemala (2010); E Siegal, Finding Fernanda (Beacon Press 2012).
110 Smolin (n 37) 507 & sources cited notes 48-51.
111 D Smolin, ‘Intercountry Adoption and Poverty: A Human Rights Analysis’ (2007) 36 Capital University Law Review 413, 417.
112 Ibid; Indian Adoption Scandals (n 37) 447–50.
113 Smolin (n 100) 423.
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4. Conclusion
This summary makes clear that the intercountry adoption systems of leading receiving States and leading States of origins systemically have violated international standards. Hence, the vast majority of intercountry adoptions were processed through systems that systemically violated international standards. Seventy plus years of systemic violations of human rights and child rights norms is more than enough. Despite the valiant efforts of many to create a stable, safe, and rights-protective intercountry adoption system, the results have been intercountry adoption systems often built on a foundation of normalising rights violations. Remedies and assistance for victims of illicit adoption practices have been almost entirely lacking. At this time, the most rational decision is to end systemic intercountry adoption, and refocus efforts to other, more effective means of assisting children and families, as well as to providing remedies for the many victims of the intercountry adoption system.
