ANALYSIS OF THE EFFECTIVENESS OF THE HAGUE CONVENTION

The aim of the Hague Convention is to provide needed regulation for intercountry
adoption. It seeks to provide standards for and transparency of the intercountry adoption
process, but the practical reality is that children may be negatively affected. However, the
question at hand is whether the Hague Convention is accomplishing its goals and adequately
protecting the best interest of the child. Preferred countries for intercountry adoption, such as
China, Romania, Guatemala and Vietnam, have reacted to the global scrutiny by tightening
their regulations and in some cases the countries have closed their borders altogether. An
examination of the circumstances in the abovementioned countries provides insight into how
the Hague Convention is affecting children.

DEVELOPMENT OF INTERCOUNTRY ADOPTION

An orphaned child in need of a permanent home and family is not a new phenomenon,
The practice of intercountry adoption started off primarily after the World War II and grew in
the following years owing to natural disasters, wars and epidemics such as the Aquired Immune
Deficiency Syndrome (AIDS) that left increasing numbers of orphaned children without
traditional family care1. Even with increased numbers of orphans2, a country’s decision
whether or not to allow children to be adopted internationally often depends on its current
political and social situation3. The usual suspects with high rates of intercountry adoptions are
often poor and economically unstable4. The highest proportion of orphans have been reported
to be in Sub-Saharan Africa, although, the absolute numbers of orphans are much higher in
Asia5. Generally, wealthy countries are the receivers of adopted children, while
underdeveloped and developing countries are senders. Healthy infants are in high demand
while most potential parents reluctant to adopt older children or ones with special needs. As
mentioned earlier, various major senders are creating narrow restrictions and regulations, and

1
Margaret Liu, International Adoptions: An Overview, (1994) 8 TEMP. INT’L & COMP. L.J.

2
This paper uses the term “orphan” broadly, referring both to children, under the age of eighteen, whose parents
have died and vulnerable, abandoned children.
3
Shelley Sperry, Politics of Adoption, National Geographic, January 2008
4
Liu (n 1) 192

5
Joint United Nations Program on HIV/AIDS et al., Children on the Brink 2004: A Joint Report of New Orphan
Estimates and a Framework for Action 3 (July 2004), available from http://pdf.dec.org/pdf_docs/PNACY333.pdf.
some are even cutting off the flow of adopted children altogether6. This cutoff is due to the
imperfections that exist in the process and procedure of intercountry adoptions.

PITFALLS OF INTERCOUNTRY ADOPTIONS

There are various reasons that warrant the reluctance of some countries to participate
in intercountry adoption. First among these is the concern for children. Adoption may be
understood in the terms of any other transaction between two parties, however, the striking
difference comes up when we consider the human element in adoptions that is absent from
other commercial transactions. This implies that trafficking and corrupt parties are major
concerns as it directly affects the safety and well-being of the child.
Secondly, some countries and international organization, like UNICEF, are concerned
about the possible loss of cultural identity and hold the view that children should be raised in
their country of origin so that they understand their heritage. This outlook views children as a
natural resource that must be protected.

Trafficking
Intercountry adoption is desirable because the absence of such a system would make
avoidance of a black market impossible. Although the restrictions and limitations on
intercountry adoption aim to prevent illegal trafficking of children7, some people are so keen
on adopting children that they often turn to the means of buying children off the black market8.
In these black markets, there are often ‘baby brokers’ charging fees to birth mothers and placing
children into the adoption market9. These markets suffer from an obvious lack of law and
oversight, and in black markets children are sold as a commodity. From the perspective of some
potential parents, the ends justify the means and thus they believe that since in the end the
children are provided good homes and parents who support them, the buying of children off
black markets is justified. They also believe that by buying the children from the black market,
they are saving the children. What they fail to consider is that their purchase fuels the black
market. Other than being placed for adoption in black markets, there are various other situations
where vulnerable children may be exploited or abducted. This is the scenario that often exists

6
Sperry (n 3).
7
Wendy Koch, ‘Cuts in Foreign Adoptions Causing Anxiety in USA: Rules Protecting Kids Create Barriers for
Some’, USA Today (13 August 2008) 1A
8
Liu (n 1) 190
9
Laura Beth Daly, To Regulate or Not to Regulate: The Need for Compliance with International Norms by
Guatemala and Cooperation by the United States in Order to Maintain Intercountry Adoption, (2007) 45 FAM.
CT. REV. 620.624
following emergencies such as national disasters. Children orphaned by such situations are
often exposed to child trafficking, labor and sexual exploitation, or recruitment as child
soldiers.
Child trafficking is a serious problem that requires a serious solution. However, limiting
intercountry adoptions may not be the appropriate solution. Not allowing intercountry
adoptions may threaten a child’s well-being in other dangerous ways, like permanent life in
substandard or shady orphanages, increasing homelessness, and also problems that children
face in black markets such as prostitution and enslavement. Nonetheless, existence of black
market and the possibility of abuse and exploitation of children are the main reason that
UNICEF believes that intercountry adoptions should only be used as a last resort when children
cannot be placed in a permanent family setting in their own country of origin 10. The Hague
Convention was enacted with the hope that child exploitation could be stopped by regulating
the countries that want to engage in intercountry adoption.

THREATS OF A LOSS OF CULTURAL IDENTITY AND INTERNATIONAL

REPUTATION
Another reason why countries limit intercountry adoptions is due to the potential loss
of cultural identity or international reputation. Since most of the senders are usually
underdeveloped or developing countries, the practice of intercountry adoption may make them
feel as if they were admitting to the rest of the world that it has a weak child and social welfare
system and is unable to support its own children. A child’s right to its own cultural identity and
heritage is also a concern. Children’s advocates of all stripes agree that when possible, children
should be raised by their own families and in their own cultures11. So, a child who is raised in
a country other than the one into which he or she was born may lose appreciation of his or her
own cultural heritage12. While many adoptive parents choose to educate their children about
where they come from, some may choose not to do so. However, it is important to understand
that potential loss of cultural identity may not be as serious a concern when alternatives are
considered which may involve a life devoid of basic human rights in the country of origin.

10
UNICEF, ‘UNICEF’s Position on Intercountry Adoption’, (25 March 2008)
11
Pat Wingert, ‘When There’s No Place Like Home: Children’s Advocates Can’t Agree on How Much to
Emphasize Intercountry Adoption as a Solution’ Newsweek (4 February 2008)
<http://www.newsweek.com/id/105531>
12
Elisa Poncz, China’s Proposed International Adoption Law: The Likely Impact on Single U.S Citizens seeking
to adapt from China and the Available Alternatives, (2007) 48 HARV. INTL. L.J. ONLINE 74, 77
THE HAGUE CONVENTION
The Hague Convention seeks to protect children by creating procedural safeguards that
will ensure that children will be moved through the adoption process in a lawful manner. It was
designed to encourage adoption at home rather than abroad and to end international baby trade.
It also aims to restore order, transparency and decency to the adoption process 13. Although
Hague Convention prizes domestic adoption over intercountry adoption, it does not reject
intercountry adoption. It notes 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
origin14. Owing to this bias toward domestic adoption, the Hague Convention mandates certain
procedures dealing with intercountry adoption in any country that is party to the Hague
Convention. In particular, countries must create national central authorities that oversee all
intercountry adoptions15.
The Department of State is designated as the central authority of the United States16.
Many countries, such as US, have state-based adoption systems and implementation of a
central authority may take some time as they don’t currently have federal systems in place 17.
Some children’s best interests in the short time are being affected negatively as a result of the
delay in implementation18. Critics of the Hague Convention have highlighted that “rules may
prove so rigorous and indiscriminate that they will severely curtail international adoption as a
vital escape route for children in troubled regions.”19 Both receiving and sending countries are
required to establish the central authority, among other things, to prepare reports on each child
considered for adoption20. Some countries, which have less resources at disposal, may find it
hard to comply with all the requirements of the Hague Convention and yet face international
criticism for illegal trafficking. Such countries may view the best solution to be to disallow
intercountry adoptions altogether, like in the case of Vietnam. Vulnerable children in these
unstable circumstances then remain in orphanages, on the streets or with families who cannot
support them. This is an unwanted side effect of the Hague Convention. Another unwanted
side effect of the Hague Convention is that some countries, in their efforts to comply with the

13
Mac Margolis, ‘Who Will Fill the Empty Cribs: International Adoptions are on the Decline, Despite Growing
Demand and an Endless Supply of Orphans’ Newsweek (4 February 2008)
<http://www.newsweek.com/id/105530>
14
Hague Convention (n )
15
ibid chapter III
16
42 U.S.C 14911(a)(1)(2006)
17
Margolis (n 13) note 29
18
ibid
19
ibid
20
Hague Convention (n ) Article 15, 16
Hague Convention and also to encourage domestic adoptions, may enact extremely strict
regulations on intercountry adoption. The children are the ones who end up paying the price of
such regulations. For instance, China’s regulation guaranteed that some people would be
unable to adopt from China; at the same time, China has not proven that children will be readily
adopted domestically and not languish in an orphanage. In this case, even though the
regulations are adopted with a view to comply with the Hague Convention and to ensure that
vulnerable children are not exploited or abused, affects the children negatively as it prevents
potential parents from adopting and thus hampers the chance of a stable family.

THE ‘BEST INTEREST’ STANDARD

All the policies adopted for and against intercountry adoption claim that it is in the best
interest of the children. The ‘best interest’ standard is one that is used commonly in matters
relating to children. The child’s best interest is considered in order to determine what course
of action should be taken. The Hague Convention references the best interest standard several
times21. The view that in adoption proceedings the best interests of the child shall be the
paramount consideration is reaffirmed in the United Nation’s Convention on the Rights of the
Child22. Similarly, in the Declaration on Social and Legal Principles Relating to the Protection
and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally
and Internationally the United Nations re-confirms that the best interests of the child are
paramount in any adoption decision.
Some organizations and diplomats have used this standard to limit the availability of
intercountry adoption. Particularly, UNICEF has stated several times that it is usually not in a
child’s best interest to be adopted by a family in another country. Also, the Convention on the
Rights of the Child 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.” Thus, the barrier set on
intercountry adoption is one that is quite difficult to overcome. It gives an impression that
intercountry adoption is an unattractive option, one that should be considered as a last resort
and avoided as much as possible. The view on the matter is depicted in a vaguer yet softer way
in the Declaration on Social and Legal Principles23. This states that the “primary aim of

21
Hague Convention (n ) Articles 1, 4, 16, 21, 24.
22
Convention on the Rights of the Child, G.A. Res. 44/25, U.N. Doc. A/Res/44/25 (20 November 1989)
23
Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children, with Special
Reference to Foster Placement and Adoption Nationally and Internationally, G.A. Res. 41/85, art. 5, U.N. Doc.
A/Res/41/85 (3 December 1996)
adoption is to provide the child who cannot be cared for by his or her own parents with a
permanent family” and that when “considering possible adoption placements, persons
responsible for them should select the most appropriate environment for the child.”24
However, instating the principle that domestic adoptions are prized above intercountry
adoptions may threaten other rights of a child and may not always be in the best interests of
the child. The preamble of the Convention on the Rights of the Child states that a child should
“grow up in a family environment.”25 If there is low demand for domestic adoption and
intercountry adoption is not encouraged, then a child who is raised in an orphanage or who
grows up on a street is not being brought up in a family environment. Children have the right
to be protected against violence, abuse, neglect, and maltreatment 26. Children who are bought
and sold in the black market may face abuse and children in orphanages are also often
neglected, abused, or maltreated. If the children are left to fend for themselves, like in the
instance of living on the street, they are quite prone to being exposed to violence or
exploitation. Children have the right to an adequate standard of living, and in some cases it is
not clear whether such a standard of living is available to those children whose countries would
rather have them adopted domestically or remain in orphanages inside the country rather than
have them be sent to adoptive parents in another country. Many critics of UNICEF’s policy
believe that, despite its noble roots, the policy lacks empirical support relating to its efficacy.
Thus, by limiting access to willing adoptive families and imposing a limitation that denies
children their basic rights by condemning them to life in substandard conditions, UNICEF is
not acting in the best interests of the child27.
Although, the Hague Convention aims to promote the best interests of the child, the
standards of the Hague Convention, combined with the regulations of the individual countries,
do not protect children adequately. As domestic families might not adopt their domestic
orphans at a greater rate than willing foreigners, the orphaned children are often left with only
two alternatives if they are unable to be adopted internationally. If the children are old enough,
they have the option of trying to live and survive on their own on the streets. Otherwise,
children will likely spend their growing years in orphanages.

24
ibid
25
CRC (n 22) Articles 13-14
26
ibid Article 19
27
Liu (n 1) 189
UNDESIRABLE ALTERNATIVES TO INTERCOUNTRY ADOPTIONS
Two alternatives of intercountry adoptions are homelessness and orphanages.
Romania disallowed intercountry adoptions in 200128. In 2006, 1500 Roma children were
estimated to be living on the streets of Romania29. It has been noted by UNICEF that such
children are at risk of becoming victims of trafficking, mostly for sexual exploitation, and for
begging in the case of disabled children. Compared to other countries, “Roma children are
over-represented both in terms of abandoned children, street children, children living in
institutions, and children in conflict with the law.”30 Abandoned children who live on the street
do not have identity cards and thus cannot attain public services31. They are often in ill health,
malnourished and have likely been abused sexually or physically. A study of the street children
in Romania showed that about one-third of the children were illiterate and about one-fifth of
them have never been to school32. Romania’s decision to disallow intercountry adoptions has
left some of its children on the streets in vulnerable conditions which would be considered
worse than what they would have experienced if they had been adopted internationally.
Since about a century ago America started moving away from the concept of putting
children in orphanages and put a premium on ensuring that children were adopted 33. In 1909,
Theodore Roosevelt, the then President of United States, convened the first White House
Conference on the Fare of Dependent Children and established that, wherever possible,
homeless children should be placed in permanent adoptive homes as a national policy34.
Orphanages in America are almost unheard of today. The development of foster care system
and fewer children being put up for adoption also are contributing factors that may have
influenced this result.
Orphanages still exist in other countries. In Europe and Central Asia over one million
children live in orphanages. UNICEF has recognized that many children are placed in
institutions, where they receive less individual attention which is necessary to reach their full
potential. There are orphanages that clearly compromise a child’s best interests. In Russia, for
example, parents with HIV/AIDS are pressured to institutionalize, their children. Once placed
in orphanage, children with HIV/AIDS are separated from other children, leading to further

28
Sperry (n 3)
29
UNICEF, Children on the Brink 2006: A Focused Situation Analysis of Vulnerable, Excluded, and
Discriminated Children in Romania, (2006) 12
30
ibid
31
ibid
32
ibid
33
Kevin D. Williamson, ‘Lost Generation’, National Review (4 August 2008)
34
ibid
stigmatization. In 2007, orphanages in India and Liberia were singled out by the non
governmental organization, Human Rights Watch for their substandard conditions. This
indicates that children in orphanages face serious physical, mental and emotional challenges.

SUPPLY AND DEMAND: DOMESTIC v. FOREIGN DEMAND

Since not all countries have transparent child welfare system, it is hard to track what
exactly is happening to abandoned children and what the effects of adoption system are upon
them. When restrictions are placed, many fit foreign parents will be unable to provide a
permanent home to abandoned children. Countries like China that are enacting limits on
intercountry adoptions claim that there are not enough children to meet the demand 35. This
might not be the actual situation, because studies show that there are children in orphanages
and streets, which makes the claim untenable.
What China may be struggling with is the capability to process all the adoption
application they receive, which makes it a bureaucratic, administrative problem36. A better
system is needed to streamline and expedite the adoption process, and to ensure that all
adoptions are legal and ethical. But if the actual supply of children is not lower than the demand
then it seems unnecessary and against a child’s interest to cut off intercountry adoption or
restrict it to an unwarranted degree. A study conducted by UNICEF noted that putting an
abandoned child with their extended families or with families who cannot support them might
not be in the child’s best interests.
Romania is an example for a country with low domestic demand. A study conducted in
2000 reported that while a significant number of children were placed with extended family or
in foster care, only 0.22% - 43 children were adopted domestically37. Romania cannot claim
that there is high domestic demand that intercountry adoption is unneeded when only one
percent of the abandoned children are being adopted domestically. In 1988, South Korea
banned all intercountry adoptions, but this ban was lifted in 1994, when the South Korean
government realized that since the 1994 ban the domestic adoption did not increase enough to
offset international adoption38.

35
Pam Belluck & Jim Yardley, ‘China Tightens Adoption Rules for Foreigners’, New York Times (12 December
2006)
36
Margolis (n 13)
37
UNICEF (n 29)
38
Eun Jung Cahill Che, ‘Adoption by Foreigners Can be Fine’, International Herald Trib. (23 August 2001)
SHORT TERM AND LONG TERM EFFECTS OF THE HAGUE CONVENTION
The fact that there may be a rise in the adoption of children who were previously
marginalized is like a silvering lining to the dark cloud of restrictive adoption. As potential
parents are sometimes restricted in intercountry adoption, they may adopt older children and
children with special needs from their own countries39. Additionally, due to restrictions in
intercountry adoptions in Asia and the former Soviet Union, two popular regions for adoption,
potential parents may opt to adopt children from other parts of the world. There is a requirement
for adoptive parents for children in Africa where AIDS, political instability and ethnic violence
have taken their toll on families40.
Besides the adoption of children who were not adopted very often in the past, the Hague
Convention has the potential to end the abuse and exploitation of trafficked children. But it is
likely that children will feel detrimental effects of countries trying to comply with the Hague
Convention or trying to shed their reputation as a country that has a black market in babies in
the short term. As countries like Guatemala and Vietnam cease intercountry adoptions to try to
comply with the Hague Convention and address issues of child abuse and exploitation, it is
likely that many of the children who may have previously been adopted by foreigners will not
be adopted by foreigners will not be adopted domestically and, instead, will be without a
permanent home and family.
The long-term effects of the Hague Convention are speculative at this point.
Admittedly, it could end the illegal baby trade which would be in the best interests of children.
However, in the long run, children may still be neglected, abused or exploited. The threat to
children’s best interest may not be in an adoptive system, but within the country itself.
Romania’s policy has demonstrated that children are not being adopted in sufficient numbers
domestically to offset the need for intercountry adoption. Children, who are in ready supply,
are not being protected by domestic policies that limit or eliminate all foreign demand for those
children. If not adopted, abandoned children will most likely remain in orphanages or on the
streets.

39
Koch (n 7)
40
Margolis (n 13)