Global Policy Volume 1 . Issue 1 .

January 2010

91

International Adoption: The Human Rights Position
Elizabeth Bartholet
Harvard Law School
by the Shining Path terrorists. In an orphanage, I saw babies crowding the nurseries and older kids playing and fighting unsupervised in the bleak yard. Few children ever received a visit from a parent or relative, yet no system apparently existed for terminating parental rights so that children could be adopted. The child welfare agency told those who inquired about adoption that no children were available. I have spent much of the 25 years since my adoptions studying the needs of unparented children worldwide, and the role of international adoption. This work has simply intensified my initial conviction that something is terribly wrong with policies that lock children into orphanages, away from prospective parents. For a period during this time, some more adoptionfriendly policies developed. The Hague Convention on Intercountry Adoption was promulgated, preferring such adoption to in-country foster and institutional care (Bartholet, 2007b, pp. 172–177; Hague Conference on Private International Law, 1993). The numbers of international adoptions rose, reaching up to 45,000 worldwide (Paulsen and Merighi, 2009, p. 3; Selman, 2006). Some countries that had not allowed children to be placed abroad opened up, including Russia, China and countries in Eastern Europe and Africa. Adoption became less stigmatized, and thus chosen by more prospective parents. However in the past several years the world has reversed direction. The numbers of international adoptions have dropped dramatically. Many countries have closed or severely restricted their international adoption programs. It is now almost unheard of for children to be placed internationally as the young infants that Christopher and Michael were. Indeed it is extremely rare for children under the age of one to be placed. Yet child welfare experts know that keeping infants in institutional care for more than a few months puts them at enormous risk of lifelong damage, even if they are ultimately adopted, with the risk increased proportionately with the length of stay (Bartholet, 2007a, pp. 346–348). The organizations leading the attack on international adoption describe themselves as child human rights organizations. But institutional forms of human rights activism have often played a perverse role (Kennedy, 2004). Children’s most fundamental human rights are to

Research Article

Abstract
International adoption is under siege, with the number of children placed dropping in each of the last several years, and many countries imposing severe new restrictions. Key forces mounting the attack claim the child human rights mantle, arguing that such adoption denies heritage rights and often involves abusive practices. Many nations assert rights to hold on to the children born within their borders, and others support these demands citing subsidiarity principles. But children’s most basic human rights are to grow up in the families that will often be found only through international adoption. These rights should trump any conflicting state sovereignty claims.

Policy Implications
• International adoption is under siege by those claiming the human rights mantle. • Children’s most fundamental human rights include the right to a nurturing family which is often available only through international adoption. • Children’s fundamental human rights should trump state sovereignty claims. • Neither adoption abuses nor concepts of heritage justify restrictive international adoption policies, in-country holding periods or the elimination of private adoption intermediaries. • International adoption appropriately recognizes children as citizens of a global community with basic human rights entitlements.

I flew from the United States to Peru in 1985 to adopt four-month-old Christopher, and flew back in 1987 to adopt one-month-old Michael. I counted myself from the first moments we met as extraordinarily lucky to be their parent. But I still wondered at the policies that made it so hard to adopt. I spent three months in Peru for each adoption, agonizing through endless sessions with police, social workers and courts, and fighting off mysterious threats to remove the children who had become mine in every way except the law. I realized then that of all those who might want to adopt from Peru very few would be able to, given the difficulties. I also began to learn how many children needed parents. Daily I would hear about those newly orphaned
Global Policy (2010) 1:1 doi: 10.1111/j.1758-5899.2009.00001.x

Ó 2010 London School of Economics and Political Science and John Wiley & Sons Ltd.

Positions Taken by International Adoption Critics Some argue that international adoption is an inherent violation of human rights. in response to demands that they do so in order to join the European Union (Bartholet. 2008. ‘The Lie We Love’. UNICEF says that it is not entirely against such adoption. 2004). Romania’s orphanages were brought to the world’s consciousness at the time of former dictator Ceausescu’s fall. the world’s major receiving country. have been down each year since the 2004 peak of 22. Another academic critic argues that international adoption is inherently exploitative. placed many children at four to six months of age.92 Elizabeth Bartholet be raised in the families that are often available only internationally. 60). ‘our most precious resources’. 2007b. UNICEF focuses on adoption abuses. Guatemala. Impact of the Attacks on International Adoption These attacks have had an impact. In many ‘sending countries’ national pride has led to calls to stop selling. international adoption placed thousands of Romanian children per year for several years. China instituted new rules limiting the eligibility of international adoptive parents. despite the millions of abandoned baby girls (Bartholet. despite the limited number of in-country homes. p. 161–163). They have nothing to gain and much to lose if they look as if they are taking children from unwilling countries. instituted a requirement that children be held six months prior to placement abroad. UNICEF promotes family preservation. Worldwide. rejects the ‘myth’ that such adoption provides homes to children in need. One article receiving extensive media coverage. 2007b. 2008). and that adoption abroad results in ‘babies … being systematically bought. pp. fraud and kidnapping were widespread. although there was no alternative for the children except continued life in an orphanage. pp. and argues for regulatory ‘reform’ to ensure against baby buying and fraud and to provide preferences for in-country placement. once one of the world’s major sending countries. Guatemala closed down (Bartholet. Several countries that used to release significant numbers of children as early infants have severely restricted international adoption. And UNICEF calls for policy changes designed to limit international adoption to last-resort status (Bartholet. 2007b. Russia. 154–157). 154–157). But Romania recently ended such adoption. After six decades of steadily rising. pp. family reunification and kinship care as the policy priorities. 2003). 2007b. The media reflect and exacerbate the hostility to international adoption. 1. with huge numbers of institutionalized children.884 (Bartholet. UNICEF agrees in principle that children should not be institutionalized. 158– 159. Post-Ceausescu. The high-profile Save the Children also opposed this adoption. and stolen away from their birth families’ (Graff. US Department of State. pp. coerced. An academic adviser to the European Parliament took this position in opposing Romania’s admission to the Union (Bainham. 2007b. but presses for the development of in-country alternatives to international adoption – support for poor parents. 2009). Global Policy (2010) 1:1 . UNICEF focused increasingly on its alleged problems. depriving children of their heritage birthright. 190–191). Along with most critics. 2007b. featuring stories of baby buying and kidnapping. arguing that under the Convention on the Rights of the Child institutional care was preferred to international adoption (Pound Pup Legacy. Seasoned journalists were in tears as they reported on children tied to their cribs. representing 85 such organizations. with excellent prospects for healthy development. and to claims that the country should ‘take care of our own’. The Human Rights Consultative Committee. The Crisis in International Adoption International Adoption under Siege UNICEF and many other international children’s organizations promote the idea that unparented children should be kept at almost all costs in their country of origin. However UNICEF actions reveal that it sees almost no legitimate role for international adoption. opposed the second adoption. Some project that by 2010 the number will fall to significantly less than half that number (DiFilipo. After UNICEF and others called for a moratorium. based on alleged adoption abuses. 167). ‘Receiving countries’ have been responsive to these attacks (Bartholet. because many birth parents are induced by poverty to surrender their children (Smolin. pp. claiming that adoption abuses involving baby buying. 2007b. p. 156–157. claiming that there are virtually no unparented young children. children who had never learned to walk or talk and children dying from AIDS contracted in the orphanage. claiming there was no longer much need for foreign adoptive homes. arguing for expansion of social welfare support for poor families. 160–161). One UNICEF policy paper targets any country placing significant numbers of children abroad as a problem requiring adoption reform (Bartholet. As international adoption began to expand. Sixty-seven such organizations filed amicus briefs in court opposing the first adoption. international adoptions into the US. Dozens of self-styled child human rights organizations opposed Madonna’s two adoptions from Malawi. or giving away. foster care and domestic adoption. Several countries with huge orphanage populations and often horrendous orphanage conditions have severely limited international adoption. such adoptions are dropping at a similar rate. 2009). Ó 2010 London School of Economics and Political Science and John Wiley & Sons Ltd. pp.

and reluctant to make adoption matches (Myers. less damaged children. Moratoria closing down international adoption programs in response to alleged abuses may end up being permanent. While there are no good studies examining the results of recent moratoria. Such foster care as now exists in poor countries is often quite terrible. 1999. p. anecdotal evidence indicates that they may simply cause more suffering. family reunification and kinship care over international adoption are similarly dangerous. These include Bolivia. 176– 204). is notorious for bouncing children from one inadequate home to another. They argue that international adoption must be ‘subsidiary’ to various in-country options. Foster care in the US. with all its resources. 2009. Global Policy (2010) 1:1 Preferences for in-country options over international adoption deny or at best delay the adoptive placements that are typically only available abroad. as those promoting this ‘reform’ well know. Thus UNICEF’s official position is that international adoption should be considered only after in-country adoption and ‘permanent’ family or foster care are found unavailable. Minority race groups suffer severe discrimination in many countries. Foster care does not exist as a meaningful option in most sending countries – unparented children are relegated to orphanages. since it is easier to place younger. Children removed because of maltreatment are likely to do better in adoption than if reunified with parents (Bartholet. 29–30). Yet the Hague Convention had been generally understood to take an important step in the direction of validating international adoption by making it the preferred option over foster care. Social science evidence demonstrates that foster care would not serve children’s interests nearly as well as international adoption (Bartholet. Paraguay and Peru. 154–159. p. But this kind of change will not happen in time to provide homes for today’s unparented children. They call for closing down adoption programs in response to alleged abuses. Accordingly. We should of course work to improve social welfare systems in poor countries and to address the terrible chaos characterizing the lives of those whose children end up in institutions and on the streets. regardless of whether those options exist. Family preservation and reunification efforts will be necessarily limited. But the UNICEF positions would. 96–97). Threats to International Adoption and to Children Few press the arguments that international adoption is inherently wrong. ‘a euphemism for cottage-industry-level institutionalization’ (Wardle. They call for eliminating the private intermediaries that are in many countries the lifeblood of adoption. 81–110. Kin who have not already stepped forward are not likely to provide placements. Reports show drastic increases in the number of abandoned children and ongoing horrendous conditions in orphanages in Vietnam. pp. 782). Preferences for what UNICEF calls permanent family or foster care are similarly dangerous. making it hard to place their children in-country. if accepted. Regulation prohibiting private intermediaries has been the death knell for international adoption in many countries. Many countries in South and Central America have banned private intermediaries. But government bureaucrats are often responsive to pressures to keep children where they are. Desperately poor people are generally not in a position to volunteer for parenting through adoption. but simply for regulatory reform. Nor are poor countries likely to build a nurturing permanent foster care system. Honduras. disease and related chaos. radically limit children’s opportunities for finding homes. And many argue that children should be held for six months or longer while incountry solutions are pursued. Guatemala has enacted legislation eliminating private intermediaries in any future international adoption system. 2008. and have as a result largely eliminated international adoption. which now place only a relative handful of children. And it reduces prospects for placement. pp. Poor countries are often devastated by war. Critics find receptive audiences with their talk of eliminating the greedy lawyers and others who make a living arranging such adoption. Arguments against ‘abuses’. El Salvador. condemning children to live for additional time in destructive orphanages. making adoption additionally unlikely. the current moratorium is denying homes to thousands per year. sound reasonable to many. Even if eventually lifted. 341). . children will in the meantime have been denied adoptive homes. Chile. There are limited prospects for adoption in poor countries.International Adoption 93 Moreover UNICEF and other critics have promoted policies that would effectively eliminate international adoption. and for children’s heritage rights. The Hague Conference on Private International Law issued a guide for interpreting the Hague Convention on Intercountry Adoption. Nor is there reason to think that denying children homes in international adoption will help solve larger social problems. pp. Ecuador. 1999. 2005. and then only after long periods in damaging orphanages. which endorses UNICEF’s claims that in-country ‘permanent’ family or foster care should be preferred to international adoption (Hague Conference on International Law. the real threat to international adoption and to children is posed by UNICEF and others which claim they are not against international adoption. A holding period for in-country adoptive home searches will thus generally at best delay placement. Positions favoring family preservation. Many Asian countries are characterized by a powerful bias for blood-linked parenting which discourages adoption. Poor countries will not soon create adequate welfare and employment systems enabling parents to raise all the children they produce. Guatemala and Romania in the wake of their moratoria Ó 2010 London School of Economics and Political Science and John Wiley & Sons Ltd. In Guatemala.

It reasoned: [C]hildren need special protection because of their tender age and physique. It requires states to ‘protect the child from all forms of physical or mental violence. 2007b. and this only after damaging orphanage stays. Wardle. Global Policy (2010) 1:1 . 2009. 474. neglect or negligent treatment. 346 and n. 476). The CRC preamble describes the family as ‘the natural environment for the growth and wellbeing of … children’. core human rights principles give children the right to true family care. They have a right to be liberated from the conditions characterizing orphanages. play. mental immaturity and incapacity … [T]hat is why there is a growing realization in every part of the globe that children must be brought up … under the tender care and attention of parents. Every child has a right to love and be loved and to grow up in an atmosphere of love and affection and of moral and material security and this is possible only if the child is brought up in a family … [I]f for any reason it is not possible for the biological parents or other near relative to look after the child … the next best alternative would be to find adoptive parents. or ‘deprived of his or her liberty unlawfully or arbitrarily’ (Article 37). and education (Articles 24. 568–583). pp. without the ability to crawl. Why the International Adoption Critics are Wrong Accepted Human Rights Principles Require that Children’s Best Interests Govern Core international human rights law makes children’s best interests the guiding principle in matters related to children and adoption. love and understanding’. inhuman or degrading treatment’. relying on international human rights law and related provisions in the Indian Constitution. tens of thousands of children who could be placed yearly will be denied homes. p. Even the best institutions fail to provide the care that infants and young children need (Bartholet. 2007a. and protect children against the conditions characteristic of institutional care. ‘alternative care’ (Article 20) and ‘such protection and care as is necessary for his or her well-being’ (Article 3). The Supreme Court of India found a right to international adoption despite the absence of statutory recognition of such adoption. Accordingly. 2003. An advertisement published by 33 NGOs denounced recent conditions in Romanian orphanages: ‘Abandoned babies are often confined to steel cribs 23+ hours a day for months or years. should grow up in a family environment. The Malawi High Court. The Convention on the Rights of the Child (CRC) provides generally that ‘the best interest of the child shall be a primary consideration’ (Article 3). India and Malawi have concluded that the CRC and related international human rights law make children’s best interests determinative in international adoption matters. 2.94 Elizabeth Bartholet (Center for Adoption Policy. maltreatment or exploitation’ (Article 19). Union of India. Courts in South Africa. and in adoption shall be ‘the paramount consideration’ (Article 21). interact or be loved. for the full and harmonious development of his or her personality. 2009). in an atmosphere of happiness. both the CRC and the African Charter on the Rights and Welfare of the Children. 2009. street life and most foster care (Bartholet. 1984. Without normal stimuli. Dillon. they suffer immense. If the critics of international adoption prevail. often irreversible psychological and physical damage’ (Mitchell. 353–360). 25. a standard of living adequate for appropriate development. Worthington. pp. It says that an unparented child ‘shall be entitled to special protection and assistance’. pp. 2005. 27 and 28). pp.1 The Hague Convention on Intercountry Adoption provides that ‘intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights’ (Article 1).2 International Adoption Serves Children’s Best Interests and Most Basic Human Rights Human beings need parental care for a prolonged period to survive physically and to develop mentally and emotionally. in upholding Madonna’s first adoption despite the residence requirement read by some to forbid international adoption. It says that ‘every child has the inherent right to life’ and to ‘survival and development’ (Article 6). [I]f it is not possible to provide them in India decent family life where they can grow up under the loving care and attention of parents … there is no reason why such children should not be … given in adoption to foreign parents (Lakshmi Kant Pandey v. with a relative handful of children released. International law makes central the child’s human right to grow up in a family. also relied on international human rights law. It granted her adoption of David Banda based on finding that Madonna offered the true home that was unavailable in Malawi: Ó 2010 London School of Economics and Political Science and John Wiley & Sons Ltd. Courts have recognized these principles in decisions involving international adoption. Unparented children have a right to be placed in international adoption if that is where true families are available. The CRC and the Hague Convention on Intercountry Adoption include in their preambles that ‘the child. The CRC also requires that member states give children who cannot be raised by their original parents adequate substitute care. 347–348). International adoption will be limited to last-resort status. It grants children affirmative rights to health. injury or abuse. It provides that ‘no child shall be subjected to torture or other cruel.

cuddled or comforted. and only these should be Global Policy (2010) 1:1 eligible for adoption. At its peak in 2004. The infant in the instant case was among our many materially deprived children whose only remaining parent was forced. The overwhelming majority have no meaningful relationship with their parents. It is the dreadful quiet of starving. unloved children waiting to die … The children in this particular wing have no human contact. over 8 million living in orphanages (Secretary-General. 2009). Not one single word is uttered to them. 24–25). 7). D. the silence of babies who have given up hope of ever being consoled. Then you are hit by the silence. abandoned or removed. 2009. This is how they live. 2005. It is restrictive adoption policies and destructive orphanage conditions that produce so many older children with disabilities. and no likelihood of ever returning home. Studies document how destructive even the better orphanages are. lack of access to proper sanitation and lack of access to adequate health care. And while prospective adopters generally prefer healthy infants.000 children.9 million of ‘ever married’ women in the US alone have considered adoption. even if that result is achieved through an inter-country adoption’ (A. This is the inescapable reality in Malawi as in most third world countries. pp. pp. that the CRC ‘seems to accept the notion that ‘‘[e]nsuring that a child grows up in a loving. pp. 2009). lack of access to education. p. Most orphanages are terrible places. . The extreme contrast between the homes international adoption offers and orphanage or street life should make unnecessary any debate as to what best serves children. & Others. 2008. 346–348). 16). rotting flesh. UNICEF and others also say that most orphanage children are older and suffer disabilities. 2007a. to place him at an orphanage … In seeking to adopt … petitioners are not therefore in the way of any permanent domestic solution for the infant (Adoption case No. p. UNICEF and other critics of international adoption say that only a small percentage of orphanage children are true orphans. where children learn not to cry because crying brings no response. W. neglected. Some 9. in approving an international adoption. 2008. Mitchell. But those whose parents are not dead have either been removed for maltreatment or abandoned. unwashed babies. 2007b. 2006. 16) and some 100 million street children with no available caregivers (Bartholet. an eerie. The Constitutional Court of South Africa stated. Estimates indicate that there are 143 million orphaned children (Joint UN Programme. 200). But the lives of those placed are radically transformed for the better. There are many millions of children worldwide who need homes because they have been orphaned. so none of them is able to talk. The World Health Organization recommends that even Ó 2010 London School of Economics and Political Science and John Wiley & Sons Ltd. p. D. because of his circumstances. pp. She can either stay in Kondanani Orphanage and have no family life at all or she can be adopted by the Appellant and grow in a family … In our Judgment the welfare of infant CJ will be better taken care of by having her adopted by the foreign parent rather than for her to grow up in an orphanage where she will have no family life. 2004. involving ‘Mercy’ James. international adoption placed some 45. lack of access to essential nutrition. and have their nappies changed only when there happens to be a supply of new ones. producing lifelong damage even for many of those eventually adopted. relied similarly on human rights law: We do not think that … inter country adoption is a last resort alternative … [T]here are only two options. They are fed lying on their backs. And to argue that we will soon find adequate solutions for all our deprived children is to assert a shameless and insolent lie. no love and affection of parents (in Re: CJ A Female Infant. unnatural silence. International adoption is about placing tens of thousands of infants and young children who need homes with people who want to provide them. p. many will adopt older children with disabilities. The new science of early brain development demonstrates in dramatic color slides how different the brains of children raised for two years in an orphanage look as compared to the brains of children raised with parents (Bartholet. Developmental psychologists explain how essential nurturing human interaction is for infants to develop normally.International Adoption 95 [A] lot of children are in dire situation of material deprivation characterized by poverty. 182–183. Surveys show significant percentages of adults in economically privileged countries interested in adopting. Almost all are destined to live either in orphanages or on the streets if they are not adopted internationally. with both parents dead. A recent article describes a typical institution for children under three in Bulgaria: It is the smell that [first] assaults you – filthy nappies. This is a small number by comparison to those in need. and this is how they die (Monckton. 2. But many infants are placed in orphanages. 345–346). And the number could easily be multiplied many times if we developed policies facilitating rather than restricting placement. and only 1 per cent of these now adopt in a given year (Wardle. whereas prospective adopters prefer healthy infants. permanent home is the ultimate form of care a country can bestow upon a child’’. & Another v. The Malawi Supreme Court of Appeal granting Madonna’s second adoption.

we do not shut down the system that sends newborns home with their parents. Given their desperate poverty and limited access to birth control. pp. 2009). 2009. and so many millions of orphaned and abandoned children. freeing up resources to serve the needs of others. China charges an orphanage fee for each adoption of $3. and those who live suffer maltreatment. p.000. 2007b.000 to improve orphanage conditions (Bartholet. 325–331). 1990. Those placed after suffering terrible damage from wartime trauma or orphanage life are helped to overcome deficits. And studies show that international adoption works well for children. But even if adoption abuses occur on more than an occasional basis. virtually all mothers given payments would likely have surrendered regardless. impoverished birth parents incapable of caring for their children. Critics claim that adoption facilitators wrongfully take babies by paying money to induce birth parents to surrender. and thus the potential for a wide range of helpful action by individuals and governments (Bartholet. 188). Her ‘Orphan Rangers’ provides visits to orphanage children who would otherwise experience no loving human contact (Worldwide Orphans Foundation. But there is no good evidence that these mothers were induced by money to surrender children they would otherwise have kept.96 Elizabeth Bartholet ‘when high-quality institutions are used as an emergency measure … the length of stay should be no more than 3 months’ (Browne et al. 350–352). and trafficking for these purposes (Wardle. shutting down international adoption is wrong. with many able to live normal lives. exploitation for sex. p. .. 23). Those placed in early infancy do essentially as well as nonadopted children. 2005. When parents violate laws prohibiting child maltreatment. The Malawi Supreme Court that approved Madonna’s second adoption recognized the interaction between her two adoptions and the many millions of dollars she had donated to improve conditions for other poor children in Malawi. Street children often die early. Claims that adoption intermediaries were paying birth mothers helped shut down international adoption. Given the 7. this meant $23. The situation in Guatemala is illustrative. since there are so many millions of desperate. But there is no persuasive evidence that adoption abuses are extensive. and even by kidnapping. pp. The evils involved in such abuses must be weighed against the far more significant evils involved in denying children homes. Zero tolerance for adoption abuses may sound good but it will hurt children. Law reform designed to facilitate lawful adoption would do much to reduce such abuses as do exist. in concluding that she satisfied Malawi’s residence requirement: Appellant is not a mere sojourner in this country but has a targeted long term presence aimed at ameliorating the lives of more disadvantaged children in Malawi … [S]he is not here only to adopt infant CJ but to also implement her long term ideas of investing in the improvement of more children’s lives (in Re: CJ A Female Infant. The expenses for international adoption are paid by adoptive parents. p. Sending countries are also relieved of the costs of institutionalization for all those placed.000 fee. International adoption provides the only hope for a loving and nurturing home for most children in need. Neither sending nor receiving countries need divert significant resources to finance such adoption. and even if eliminating them would be hard. 11).700. Moreover. The sad truth is that even if some are guilty of such crimes – and these are crimes everywhere – there is no real need to buy or kidnap children. 2007a. whose understanding of the problems suffered by orphanage children began with her work as a pediatrician for international adoptive families. building foster care and improving orphanage conditions. finding that difficulties in accomplishing adoption created pressure for corrupt practices that would not exist in more effective systems facilitating adoption (Hague Conference on Private International Law. Adoption Abuses Do Not Justify Limiting International Adoption Adoption abuses exist. International adoption critics argue that it is naive to think adoption laws can be enforced in certain countries. The Hague Conference Report providing the rationale for the Hague Convention on Intercountry Adoption made this very point. 184–185). 2004.000 children worldwide. International adoption also triggers significant voluntary contributions by individuals and agencies to improve conditions in sending countries. pp. international adoption produces significant additional resources for poor countries and their people. and assuming the minimum $3. One example among thousands of the productive interaction between international adoption and broader reform is the work of Dr Jane Aronson. Adoptive parents pay fees to agencies and orphanages. Better enforcement of laws prohibiting adoption abuses is the obvious additional answer. labor and child soldiering. There is no terrible evil in a poor birth parent who would in any event surrender a child being Global Policy (2010) 1:1 Ó 2010 London School of Economics and Political Science and John Wiley & Sons Ltd. It noted. Dr Aronson has worked on her own and with adoptive parent Angelina Jolie to develop and fund organizations that serve the needs of more than 10. some of which go to improve orphanage conditions. given corruption and limited governance capacities. disease. We call for better enforcement of laws prohibiting maltreatment. And the exposure international adoption brings creates new consciousness about these countries’ problems. as abuses exist in every area.900 children adopted into the US from China in 2005.000–5. Nor is there reason to think they would be extensive.

p. Moreover. 284). UNICEF was created in a post-colonial era that placed high value on nationalism. 2008. Nor does common sense. which has also significantly restricted international adoption. while the rulers who decide to hold on to these children are often the descendants of the colonial invaders. and immigrants constitute 12. It would be thought outrageous for nations to hold on to adults behind walled boundaries because they constitute ‘precious resources’. pp. 360–361). p. as revealed in books and speeches. UNICEF and other critics of alleged baby buying in the adoption context are interestingly silent about international surrogacy. and international commercial surrogacy is spreading rapidly. The CRC prefers in-country options that include foster and other ‘suitable’ care to out-of-country adoption (Article 21(B)).International Adoption 97 given funds that will help her survive. racial and ethnic heritage? His testimony. Article 4).6 million per year immigrate to the US alone. 2008. which has significantly restricted international adoption. Russia. We live in a world increasingly defined by globalization. Shutting down international adoption programs in Guatemala deprives thousands of children per year of the chance to grow up in nurturing homes. would we view him as deprived of his Kenyan heritage by being raised in the US? Was he deprived of his Kansas heritage by being raised in Hawaii and Indonesia? Is he deprived or enriched by his complex national. and that many countries demand these rights. and terminating her parental rights. Ironically these are often the children of the indigenous groups that were the primary victims of Global Policy (2010) 1:1 colonialism. It is understandable that UNICEF and others promote nation-state rights to hold on to children. Some 1. India. but made child rights truly primary. and accord overwhelming significance to the often arbitrary lines separating countries. Some countries that have severely limited international adoption are now engaged in a rapidly expanding international surrogacy business. the children of the poorest groups in these countries. 131). Interestingly the first major international recognition of the rights of the child showed no such deference to state sovereignty. keeping unparented children in their countries of origin does nothing to actually strengthen the economic and political situation of those countries. 2007a. 2009. with adults eager to cross national boundaries for economic and other opportunities. Truly honoring children’s rights would require abandoning such talk. Smerdon. They defer to national governments as having important rights at stake. as prospective parents turn to poor countries for inexpensive surrogacy services. International adoption critics say they promote in-country solutions because this serves children’s heritage rights. Commercial surrogacy is flourishing in the US and many other countries. That is an evil that should count for more. The Hague Convention prefers in-country to out-of-country adoption (Preamble.5 per cent of the US population. indicates that he feels enriched and empowered to act more effectively. is enthusiastically embracing international surrogacy (Lee. . for countries formerly victimized by colonialism to make an anti-colonialist statement. including by requiring that 50 per cent of all adoptions be in-country (Dohle. international law contains ‘subsidiarity’ provisions which accord states sovereignty rights over their human child resources. p. In this world it would be laughable to argue that adults should be prevented from leaving their country of birth so they could enjoy their heritage rights. and into mandatory holding periods which delay and often entirely deny such adoption. But this is retrograde thinking which ill-serves children’s real needs. But children’s fundamental human rights to grow up in a nurturing family should trump nation-state rights to hold on to children. is on the verge of regularizing a booming international surrogacy business through facilitating legislation (Gentleman. Baby buying is generally not treated as a serious evil in non-adoption contexts. 2008. This translates into policy preferences for virtually all in-country options as compared to out-of-country adoption. Heritage and state sovereignty claims can only be made in the international adoption context because children are involved. It is simply a symbolic way for the powerless to stand up to the powerful. and children are peculiarly incapable of protesting. Children are not defined in some essentialist way by the particular spot where they were born. Concepts of Nationalism and Heritage Do Not Justify Limiting International Adoption International adoption critics treat children as necessarily ‘belonging’ to their countries of birth. Also. Commercial surrogacy is the institution in which true baby buying takes place systematically. And it exploits the least powerful of all. Had Barack Obama been born in Kenya instead of Kansas. The CRC and the Hague Convention allow countries to deny adoption altogether. Surrogacy contracts specify that the woman who provides pregnancy. 15). Countries emerging from colonialist oppression can easily see adoptions by foreigners as a modern version of colonialist exploitation. treating children as full members of the global community and responding to their most fundamental needs. Private lawyers who used to arrange international adoption from Guatemala are now earning a living arranging for Guatemalan women to get pregnant in order to surrender for a fee their babies and their parenting rights. The 1924 Declaration of the Rights of the Child provided simply: Ó 2010 London School of Economics and Political Science and John Wiley & Sons Ltd. Science provides no basis for believing that children are better off if raised in their community of origin (Bartholet. childbirth services and often her egg will receive money in exchange for turning over the baby.

The Act vindicates children’s rights to be placed in the earliest available permanent nurturing home. regardless of race. 2009. But these subsidiarity provisions are inconsistent with the core principles endorsed in these same Conventions and elsewhere in human rights law. and so should be kept in black foster or adoptive families. & Others. II.4 The Malawi decisions approving Madonna’s adoptions similarly found that the best interests principle trumped subsidiarity provisions under international human rights law.law. The federal Multiethnic Placement Act5 rejected the idea that black children belonged to the black community. The child that is hungry must be fed. p. and rejects holding periods in favor of placing children who cannot be raised by their birth parents as soon as possible. leading human and child rights experts have developed and endorsed a Policy Statement supporting the principle that children’s most basic rights are to grow up in the true family that is often available only in international adoption. whether in or out of country.harvard. This Policy Statement was endorsed as of June 2009 by over 130 legal academics specializing in human and child rights. 2008). p. It calls for addressing adoption abuses by enforcing and where needed strengthening laws governing misconduct. principles making the child’s best interest primary and recognizing the child’s right to grow up in a nurturing family as fundamental. and concluded that the best interests principle and the child’s right to family trump the subsidiarity provisions. 2005. III. Globalization and the global village with all its legal ramifications is now what preoccupies legal minds … Residence … is no longer tied to the notion of permanence … [A] man may have more than one place in which he resides … We do not think that … inter country adoption is a last resort alternative … [B]y her lifestyle [Madonna] is herself a child of the world (in Re: CJ A Female Infant. Global Policy (2010) 1:1 . their family of origin. 1924. In approving Madonna’s second adoption despite Malawi’s residency requirement.3 A. in preference to trans-racial placement. & Another v. limiting time in foster care and expediting adoptive placement. D. A new international legal order has taken root. It recognizes such adoption as preferable to foster and institutional care. The CRC and Hague Convention subsidiarity provisions provide the primary basis for arguments that anti-international adoption positions are consistent with children’s human rights. … and the orphan and the waif must be sheltered and succoured. D. pp. 21. & Another v. the child that is sick must be helped. the court stated: Colonialism and colonial outposts in their original format are things of the past. recognizing that mankind owes to the child the best that it has to give. 2008. in Re John Doe and James Doe. The child must be put in a position to earn a livelihood and must be protected against every form of exploitation (Declaration of Geneva. The Human Rights Center of the powerful American Bar Ó 2010 London School of Economics and Political Science and John Wiley & Sons Ltd. The Child must be given the means requisite for its normal development.98 Elizabeth Bartholet [M]en and women of all nations. The original understanding of subsidiarity has been perverted by those who use it to oppose international adoption. They found that ‘the subsidiarity principle itself must be seen as subsidiary’ to the principle making the child’s best interest paramount (A. Subsidiarity requires that children be brought up if possible in their first community. 2000. 204). Two South African decisions found that regulations prohibiting out-of-country adoption violated international human rights law and the South African Constitution’s children’s rights guarantees (Minister of Welfare and Population Development v. subsidiarity demands they be placed in another family to enjoy that same sense of intimate community (Carozza. D. reducing the priority on family preservation. and thus to adoption when it represents the route to such parenting (Dwyer. and six child rights and adoption policy organizations (http://www. The Act vindicates children’s rights to be raised in a permanent nurturing home. nationality or creed: I. The US has taken important steps to jettison old ideas that children ‘belong’ to their groups of origin. The Adoption and Safe Families Act6 rejected the idea that children belonged to their birth parents regardless of fitness to parent. 7 3. 2003. not promote state sovereignty. If children cannot be brought up in that family. Courts in several international adoption cases have confronted this inconsistency. 26). There is also increasing support in the US for the idea that children have a constitutional right to nurturing parenting. because the child’s most fundamental needs are served in a family. The child must be the first to receive relief in times of distress. IV.edu/programs/about/cap/). Fitzpatrick and Others. A Way Forward The International Adoption Policy Statement In the face of the current crisis. W. Woodhouse. declare and accept it as their duty that. 2009. Subsidiarity is designed to serve individual human rights. both materially and spiritually. 43). D. 38). & Others. 24. rather than eliminating private intermediaries or otherwise restricting international adoption. beyond and above all considerations of race. p. 2008). W.

D. 105-89.). Pt.. 2115 (codified in scattered sections of 42 U. 1984 (S. 5. and their right to be liberated from the conditions characterizing orphanages. Center for Adoption Policy (2009) ‘Newscap: What Happens when International Adoption Ends’ [online]. These decisions. Hamilton-Giachritsis. Afr. emphasis added). S. pp. UN GAOR. C. and the Reality of the Hague System. Chichiri. 6. pp. at 166. 4. Conclusions Those who care about children should act now to preserve and promote international adoption. rather than the human rights of parents and the sovereignty of states. (2004) ‘Mapping the Number and Characteristics of Children under 3 in Institutions Across Europe at Risk of Harm’. (2003) ‘Subsidiarity as a Structural Principle of International Human Rights Law’. Johnson. like the Malawi decisions. Declaration of Geneva (1924) League of Nations.. Notes 1. M. My hope is that it marks the beginning of a trend in the human rights world. See also African Charter on the Rights and Welfare of the Child. 3 March. In Re John Doe and James Doe (2008) Florida Circuit Court. L. Blantyre 3 (Msca Adoption Appeal No. S. pp. A. No. and the Adoption Alternative. Supp. 108 Stat. (2003) ‘Making Legal Regimes for Intercountry Adoption Reflect Human Rights Principles’. entered into force 29 November 1999 (Article 4 providing generally that best interests of child be the primary consideration.adoptionpolicy. Afr. 103-382. as the last resort. so long as they operate under the aegis of a Central Authority. Paper presented at the 2009 Adoption Policy Conference: International Adoption. Child & Family Law Quarterly... American Journal of International Law. amended by Small Business Job Protection Act of 1996. This Policy Statement is consistent with both the CRC and the Hague Convention. Adoption and Safe Families Act of 1997. 21. Petitioners argue that these rights include the right to be placed in international adoption if that is where families are available. be considered … 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’ (Article 24(b). UN Doc. It is consistent with the Hague Convention’s preference for in-country over out-of-country adoption: the Statement simply provides that any such preference be implemented through a strategy that does not delay placement. Agathanos-Georgopoulou. It fits with a vision of a world in which we recognize children as citizens of a global community with basic human rights entitlements. 24 (2). Bartholet. W.26:01) and in the matter of David Banda (a male infant) (Malawi High Court) (28 May 2008). 49. Supp. Pub. C. Anaut. S. 179–258. K. 223–236.). 28 of 2009) [2009] MWSC 1 (12 June 2009). Pub. E. References Bainham. 4056 (1994).org/archive/2009/may09. (2003) ‘International Adoption from Romania: Why the Moratorium Should Not be Ended’. & Others 2008 (3) SA 183 (CC) (S. It is the best option for existing unparented children. 15 (3). D. T.International Adoption 99 Association developed a related resolution supporting international adoption. 3. G.html). Union of India. Boston University International Law Journal. (2009) ‘Panel III: Ensuring the Future: A New Way Forward for International Adoption’. It serves the interests of birth parents who care about the children they cannot raise. p. Herczog. pp. No. C. H..1. I. R. 97 (1). 43. 44 ⁄ 25. E. 44th Sess. in Re: CJ A Female Infant of C ⁄ o PO Box 30871. M. E. 111 Stat. OAU Doc. if those are interpreted to prioritize the child’s best interests and most fundamental human rights. (2007b) ‘International Adoption: Thoughts on the Human Rights Issues’. 25 November. Buffalo Human Rights Law Review. 110 Stat. 333–379. Bartholet. Howard M. OJ Spec. Boston: Beacon Press. P. 7. New York.A. 1996(b) (2000)). C.edu/ programs/about/cap/ia/iacommisionhearingnov09. DiFilipo.. 38–79. Available from: http:// www. Dillon. L. 1755 (1996) (current version at 42 U. Lakshmi Kant Pandey v. pp. 104-188. Juvenile Division. 2 of 2006 in the matter of the Adoption of Children Act (CAP. 21 (2).law. And the Hague Convention specifically allows for private intermediaries. et al. Subpt. Fitzpatrick and Others 2000 (3) SA 422 (CC) (S. See A. and Article Global Policy (2010) 1:1 Ó 2010 London School of Economics and Political Science and John Wiley & Sons Ltd. (2007a) ‘International Adoption: The Child’s Story’.html [Accessed 29 June 2009]. A. & Another v. with the focus on the child’s most fundamental human rights. Pub. street life and most foster care (http://www. 151–203. Minister of Welfare and Population Development v. Adoption case No. E. No. 24 providing that in adoption best interests of child be the paramount consideration). Bartholet. 13. the United States. R. Georgia State University Law Review. addressing what petitioners in the case assert are the core human rights issues involved. (1999) Nobody’s Children: Abuse and Neglect.9 ⁄ 49 (1990). Res. Metzenbaum Multiethnic Placement Act of 1994. CAB ⁄ LEG ⁄ 24. Browne. formally adopted by the ABA in 2008. The Inter-American Commission on Human Rights 2009 Hearing on Unparented Children and International Adoption This Commission held a hearing on these issues on 6 November 2009. These developments demonstrate that those opposing international adoption using child human rights rhetoric have no lock on the child human rights position. 2. had to contend with subsidiarity language in the African Charter on the Rights and Welfare of the Child more extreme than the CRC: ‘inter-country adoption … may. Report prepared by Centre for Forensic and Family Psychology at University of Birmingham. L. Carozza.harrard. This hearing is a historic first.). Foster Drift. It brings new resources into poor sending countries to help improve conditions for those left behind.) 469. No. namely children’s rights to grow up in a nurturing family so they can fulfil their human potential. A ⁄ 44 ⁄ 49 (1989). ..

Ó 2010 London School of Economics and Political Science and John Wiley & Sons Ltd. Dwyer.org/pdf/wwo_2009_ presentation. delivered to the General Assembly. S. (2008) ‘Inside Story of an Adoption Scandal’. H. New York Times. Myers. NJ: Princeton University Press. 29 n. The Sunday Business Post On-Line. (2005) ‘Parentlessness: Adoption Problems. Guide No. Hague Conference on Private International Law (1990) ‘Report on Intercountry Adoption. (2008) ‘Crossing Bodies. 169 (November ⁄ December).html [Accessed 29 June 2009]. 39 (2).co. 1’ ( drawn up by J. L. Worthington. A ⁄ 61 ⁄ 299. J. (2005) ‘Waiting for Loving: The Child’s Fundamental Right to Adoption’. Available from: http://www. 2. U. 1870 UNTS 182. tcm. Cultural Engagement.1 ‘Subsidiarity’. pp. R (2009) ‘Exposing Europe’s Guilty Secret: The Incarcerated Children of Bulgaria’. Hague Conference on Private International Law (1993) Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption. Available from: http://www. Paradigms.1. (2006) ‘Trends in Intercountry Adoption: Analysis of Data from 20 Recruiting Countries 1998–2004’. 4 (2). 780–818. R. D.org/node/30163 [Accessed 29 June 2009]. UCLA Law Review.ece [Accessed 29 June 2009]. (2009) ‘Adoption’s Brutal Barriers’. UN Doc. Preliminary Document No. The Times Online [online]. sect. Selman. 39 (1). Available from: http://www. 559–586. 29 May. Woodhouse.state. (2009) ‘Adoption Preparedness. 20. Smolin.pdf [Accessed 29 June 2009]. E. Wardle. For articles by the author documenting claims made here. 6 (3). 2007b. L. Pound Pup Legacy (2009) HRCC Statement on the Adoption of Mercy James by Madonna [online]. Duke Journal of Comparative & International Law. S. Adoption Quarterly. 25 and attaching in Annex 10 the UNICEF position on intercountry adoption. (2009) ‘The Road to Parentless Children is Paved with Good Intentions: How the Hague Convention and Recent Intercountry Adoption Rules are Affecting Potential Parents and the Best Interests of Children’. 23 (2). (2004) The Dark Sides of Virtue: Reassessing International Humanitarianism. Joint United Nations Programme on HIV ⁄ AIDS et al. 323–374.org/ adolescence/files/cob_layout6-013. (2009) ‘A Constitutional Birthright: The State. P. (2004) ‘Intercountry Adoption as Child Trafficking’. 13 February. pp. (2009) ‘New Trends in Global Outsourcing of Commercial Surrogacy: A Call for Regulation’. Hague Conference on Private International Law (2008) The Implementation and Operation of Hague Intercountry Adoption Convention: Guide to Good Practice. (2008) ‘India Nurtures Business of Surrogate Motherhood’. 1–18. No. Hastings Women’s Law Journal. 275–300. Global Policy (2010) 1:1 .wwo. van Loon). 281–325. pp. Paulsen. and Parental Satisfaction in Intercountry Adoption’. Crossing Borders: International Surrogacy between the United States and India’. Smerdon. Journal of Population Research.pdf [Accessed 30 June 2009]. Available from: http://www. 10 March. Cumberland Law Review. and Parameters’. Harvard Law School. pp. 15–86. Available from: http://archives. Author Information Elizabeth Bartholet.ie/businesspost/2009/05/24/story41857. D. Cumberland Law Review. Available from: http:// poundpuplegacy. 12 (1). US Department of State (2008) Total Adoptions to the United States [online]. Lee. A. (2004) ‘Children on the Brink 2004: A Joint Report of New Orphan Estimates and a Framework for Action’.J. C. 131–186. pp. 56 (4). 297–329. B. Mitchell. pp. and Merighi. 183–204. nytimes. Princeton. R. (2009) ‘Preserving the Best Interests of the World’s Children: Implementing the Hague Treaty on Intercountry Adoption through Public–Private Partnerships’. see Bartholet 2007a. Worldwide Orphans Foundation (2009) WWO 2009 Presentation [online]. Policies.gov/news/total_ chart. Rutgers Journal of Law & Public Policy. pp. Capital University Law Review. 105-51. (2008) ‘The Lie We Love’.com/2008/03/10/world/asia/10surrogate. Whittier Journal of Child & Family Advocacy. A. Graff. Kennedy.timesonline.uk/tol/comment/ columnists/article5720609. 24 May [online]. citing p. pp. A. 58–66. and the Rights of Newborn Persons’. 34 (2). Monckton. C.html [Accessed 29 June 2009]. pp. Parentage.100 Elizabeth Bartholet Dohle. 39 (1). R. pp. Gentleman. Available from: http://adoption. pp. Secretary-General (2006) ‘Report of the Independent Expert for the United Nations Study on Violence against Children’. 1. J. Foreign Policy. pp.asp [Accessed 14 October 2009]. Treaty Doc. 19 (3). Valparaiso University Law Review. Morris Wasserstein Professor of Law and Child Advocacy Program Faculty Director.unicef. 755–836. B.

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