Intercountry Adoption: A Global Problem or a Global Solution?

Author(s): Judith Masson

Source: Journal of International Affairs , Fall 2001, Vol. 55, No. 1, Children: Challenges
and Propects for the New Millennium (Fall 2001), pp. 141-166
Published by: Journal of International Affairs Editorial Board

Stable URL: https://www.jstor.org/stable/24357675

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 Intercountry Adoption: A Global
Problem or a Global Solution?

By Judith Masson

"The US is unique amongst developed states in preferring

private adoption, a position that Katz associates with the
American bias towards market mechanisms and preference
for individual autonomy over state regulation.

Adoption involves
from the birth the legal,
parent or permanent transfer
parents to new of a child
caregivers. In
intercountry adoption, this transfer occurs across an
international border. The child usually moves to a new country,
to parents of different race, culture and language from the birth
family, and acquires a new nationality. The child's new identity
replaces his or her original one. Adoption, therefore, it is
appropriate to say involves losses as well as gains.
This paper examines the use of intercountry adoption to
provide for children in the most disadvantaged conditions. It
discusses whether and how international legal instruments and
domestic measures can combine to ensure proper standards are
applied to such adoptions.1 In doing so it accepts that

1 The Guidelines of the International Council of Social Welfare (1981); UN

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 (1986); UN Convention on the Rights of the
Child, Article 21 (1989); Hague Convention on the Protection of Children and
Co-operation in Respect of Intercountry Adoption (May 1993); Euradopt,
Ethical Rules (1993), available at www.euradopt.org/ethical rules; European
Parliament, Resolution on improving the law and co-operation between member
states on the adoption of minors (1996) A4-0392; Council of Europe,
Parliamentary Assembly Recommendation 1443 (2000).

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Journal of International Affairs

intercountry adoption can and should be regulated, rejecting

both the alternatives of a free market and a complete ban on
adoption. The paper argues that regulatory standards,
particularly the control of private adoptions, are required to
ensure that abuses such as abduction and trafficking of children
are eliminated. Also, as a child welfare measure that has the
potential to compromise the human rights of both birth parents
and children, adoption should only be used where it is
appropriate to the child's situation. Adoption is known to make
psychological demands on the parties beyond those of natural
parenthood. For this reason, the paper proposes that research
knowledge and experience should be applied so that the
arrangements made provide the best chance for stable, long-term
relationships for children who have been adopted.2

Origins of Intercountry Adoption

Intercountry adoption came about largely as an altruis

response to the plight of war orphans and the abandon
children of servicemen in World War II, the Korean War an
the Vietnam War. It now involves the transfer of more than
30,000 children each year from over 50 countries.3 With few
exceptions, children move from poor countries to wealthy ones.4

2 There is a voluminous research literature on adoption. Key works include D.

Kirk Shared Fate (London: Free Press, 1964); J. Triseliotis, In Search of
Origins (London: Routledge and Kegan, 1973); M. Ryburn, Open adoption:
Research, Theory and Practice (Aldershot: Averbury, 1994); D. Howe, and J.
Feast, Adoption, Search and Reunion: the Long Term Experience of Adopted
Adults (Chichester, UK: The Children's Society, 2000). For a general overview
of adoption in the UK, see R. Parker, Adoption Now: Messages from Research
(Canada: Wiley & Sons, 1999).
3 P. Selman, "The Demographic History of Intercountry Adoption" in P.
Selman, ed., Intercountry Adoption (Whitaker: British Association for Adoption
and Fostering, 2000) pp. 13-39. Comprehensive statistics are not available but
details can be found from UNICEF at www.unicef-icdc.org and the National
Adoption Information Clearinghouse at www.calib.com/naic.
4 See Selman, n. 3, tables 1.8 and 1.9. South Korean is the only state that
provides a large number of children for intercountry adoption with a per capita

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 Judith Masson

In the main receiving countries—the United States, Canada and

most countries of Western Europe—the number of such
adoptions has doubled over the last decade. Many factors have
contributed to this increase.
In receiving countries, the decline in fertility associated
with postponing marriage, the limited success and high cost of
infertility treatment and a lack of domestic adoption
opportunities have made intercountry adoption an alternative to
childlessness. Intercountry adoption has also become easier as
information about how it can be achieved has become more
readily available, most recently via the Internet.
In states of origin (sending countries), extreme poverty,
lack of contraception and attitudes to birth outside of marriage
are three major factors leading to the abandonment of children
to institutions.5 In Eastern Europe, social and economic collapse
following the end of communist regimes left orphanages close to
destitution. Those responsible for these institutions, the welfare
organizations that support them and would-be parents in other
countries, have all seen intercountry adoption as a solution. In
China, the "one-child policy" and the cultural preference for
boys have led to the abandonment of large numbers of girls to
under-funded and inadequate institutions. In response to these
phenomena, organizations have sprung up to facilitate
intercountry adoption. For many of these agencies, acting as an
intermediary has become a business.
Because of the increase in international adoptions, a new
legal regime has been developed. In 1993, the Hague
Convention on the Protection of Children and Co-operation in
Respect of Intercountry Adoption was signed to create an

GNP above $10,000. It is apparent that the USA which receives the most
children for adoption from overseas also provides children for adoption in the
U.K. as in the notorious Kilshaw case and in Re JS (private international
adoption) [2000] 2 F.L.R. 638.
5 These were the same factors that led to the development of domestic adoption
in the United Kingdom, Australia and the USA in the 20th century. For a
discussion of the position in England during that period see D. Howe, P.
Sawbridge, and D. Hinings, Haifa Million Women (New York: Penguin, 1992).

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Journal of International Affairs

international framework for arranging and formalizing these

adoptions and to prevent abuses.6 The Convention relies on
cooperation between participating states to safeguard children in
the adoption process. States of origin take responsibility for
ensuring that children are "adoptable," (i.e. that all the legal
requirements have been met) and receiving states take
responsibility for the suitability of the applicants; only where
both agree that the adoption should proceed can it be finalized.7
Adoptions are recognized whether they take place in the state of
origin or the receiving state. The Convention has now been
ratified or acceded to by over 40 countries, including major
receiving countries, France, Italy, Spain and the Nordic
Countries, and major sending countries, Colombia, Romania
and Sri Lanka.8 So far, the United States, the country that
receives the largest number of children, and China and Russia,
the countries that currently provide most children, have not
joined the Convention. However, in October 2000, then US
President Bill Clinton signed the Intercountry Adoption Act of
2000, which will eventually implement the Convention in the
US.9 The following month, China began the process of joining
the Convention by signing it at the Special Session in the
Hague.10 Even though only a tiny minority of the world's needy
children is involved, preventing abuses and ensuring that
intercountry adoption practice promotes children's welfare is a
substantial task.

Alongside the development of intercountry adoption, a

series of transitions in domestic adoption have taken place
during the latter half of the 20th century. Despite differences in
the social and legal context of domestic adoption, many
countries have faced the same challenges. Networks of adoption

6 32 I.L.M. 1134; www.hcch.net/e/conventions.

7 Hague Convention, articles 4, 5 and 17.
8 The U.K. has signified its intention to ratify and passed the Adoption
(Intercountry aspects) Act 1999 but has not folly implemented this new law.
9 Intercountry Adoption Act of 2000, 106th Cong., H.R. 2909.
10 Report and Conclusions of the Special Commission (28 November/1
December 2000), para. 6.

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 Judith Masson

specialists have facilitated the flow of ideas within Europe

through Euradopt conferences and between the US, the UK,
New Zealand and Australia.11 Transitions have occurred in
response to growing professionalism, specialization within
welfare services, greater diversity in accepted family units, the
move from institutional to family care for children in need, and
major reductions in the number of babies relinquished for
adoption. Together, these have fundamentally changed the way
adoption is organized and the relationships created or legalized
by adoption. These developments have implications for
intercountry adoption, because they shape understandings of
good practice amongst adoption agents and legislators, and
because it is widely accepted that equivalent standards and
practices should apply to all adoptions.12
Adoption was originally based on an informal, private
transaction between parents or caregivers and those who wished
to adopt. Such arrangements provided no security for children
who gained no legal relationship with the adopters and could be
rejected or reclaimed at-will. The introduction of adoption laws
allowed such arrangements to be formalized, but they continued
to be made by mothers directly or through intermediaries. In the
UK, often medical staff or church ministers acted as

11 For example, BAAF (British Agencies for Adoption and Fostering, the British
umbrella group for adoption agencies) regularly invites U.S. adoption experts t
give seminars in the U.K. Similarly, Dr Murray Rybum disseminated New
Zealand experience in open adoption in Australia and the U.K.
12 UN Convention on the Rights of the Child, article 21(c). Only Somalia and th
USA have not ratified the UNCRC but a number of countries have entered
reservation in relation to art. 21. For example Argentina has added 'strong
mechanisms are required for the legal protection of children in matters of
intercountry adoption in order to prevent trafficking in and sale of children.' In
contrast, Korea considers itself not bound by art 21(a). A number of Islamic
states reject provisions on adoption because of conflict with Shariah. See
www.unhchr.ch and A. Bissett-Johnson, "Qualifications of Signatories to the
United Nation Convention on the Rights of the Child" in N. Lowe, and G.
Douglas, Families Across Frontiers (Bowker: Martinus-Nijhoff, 1996) pp. 115
133. In the UK, BAAF has endorsed equivalence in its 1998 police statement on
intercountry adoption. For further details contact www.BAAF.org.uk.

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Journal of International Affairs

intermediaries; in the US, some lawyers have taken on this role.

In many countries, the development of professional adoption
specialists, working in licensed adoption agencies, led to controls
on intermediaries.13 The US is unique amongst developed
states in preferring private adoption, a position that Katz
associates with the American bias towards market mechanisms

and preference for individual autonomy over state regulation.14

Adoption agencies have influenced the most profound change in
the way adoption is viewed. In contrast to early adoptions that
were focussed on meeting the needs of adults, adoption agencies
emphasize that adoption is a "service for children." In the US
and the UK, adoption agencies have developed adoption services
to provide for children, not just babies and toddlers, including
those with disabilities and very adverse, prior experiences.
In the past, private arrangements often meant that those
adopting a child were known to the birth mother, but adoption
orders concealed details of the child's birth identity. Typically,
an adoption certificate replaced the original birth certificate and
pre-adoption records were sealed. The intervention of adoption
agencies increased secrecy.15 Adoptions were generally closed in
the sense that children had neither contact with their birth
family nor access to their pre adoption identity. Nevertheless,
from at least the 1960s, adoptive parents were encouraged to
raise their children with the knowledge that they had been
adopted. In the US, the claims of adopted people for
information about their birth identity have not trumped the
privacy rights of birth parents; but in the UK, the Children Act
of 1975 has allowed adopted adults to obtain details about their

13 See J. Van Loon, "Report on Intercountry Adoption," Hague Conference on

Private International Law (1990) p. 38. In England, non-agency placements
were made illegal by the Adoption Act 1958 and direct placements by parents
with strangers were barred by the Children Act 1975. See R. Sandland,
"Problems in the criminal law of adoption," JSWFL (1995) pp. 149-166.
14 S. Katz, "Dual Systems of Adoption in the United States," in S. Katz, J.
Eekelaar, and M. Maclean, Cross currents (2000) pp. 279-306, 284.
15 M. Ryburn, "Secrecy and Openness in Adoption - an Historical Perspective"
Social Policy and Administration, 29 (1995) pp. 150-168.

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 Judith Masson

birth family.16 Open adoption with contact between children

and their birth families after adoption has become an accepted
practice, although contact may be indirect (letters and photos)
rather than personal meetings.17 Increasingly, adoption agencies
are providing post-adoption services such as support for
adoptive parents in coping with the challenges of adoption and
the counselling of adopted people.18 They also help to assist
people to trace their birth relatives, to mediate contact and to
support birth parents.
Race has been another major issue in adoption. Until the
mid-1960s, black children and those of dual heritage were rarely
placed for adoption in the UK.19 The British Adoption Project
showed that placements could be found for such children in
white families, and trans-racial adoption developed.20 In the
1980s, black social workers criticized this practice for failing to
value and maintain cultural identity for black children and for
failing to prepare them to deal with the racism of British society.
Adoption agencies began to develop policies on same race
placement, but these too were criticized because they risked
denying black children the advantages of adoption. The
Department of Health issued guidance emphasizing the

16 s. 26; now Adoption Act 1976, s. 51. Scots law allowed access to birth records
from age 17 enabling the highly influential study by J. Triseliotis, In Search of
Origins (1973).
17 N. Lowe, et al., Supporting Adoption - Reframing the Approach (trade paper,
May 1999); Social Services Inspectorate, 'Moving goalposts' A study of post
adoption contact in the North of England (1995) Department of Health.
18 The proposed new law for England and Wales, the Adoption of children bill
2001, cl.2(2) makes the provision of adoption support services a statutory
obligation for all local authorities with social services functions (county
councils, unitary authorities and metropolitan boroughs).
19 For a discussion of the ideological issues see P. Hayes, "The Ideological
Attack on Transracial Adoption," Int J Law and Fam (1995) pp. 1-22. For a
broader discussion of the issues and the research see J. Thoburn, Review of
Research Relating to Adoption (Interdepartmental Review of Adoption,
Background paper No. 2) (1990) and Adoption and Race (Whitaker: BAAF,
2000).
20 O. Gill, and B. Jackson, Adoption and Race (New York: St. Martins, 1983).
The British Adoption Project ran from 1965 to 1969.

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Journal of International Affairs

importance of children's ethnic, cultural and religious identity

but also making the case for achieving family placements
without long delays. Where same race placements were not
found, adoptive families who would make and support links
with the child's community were better than temporary or
residential placements.21

The Contested Nature of Intercountry Adoption

Three value positions can be identified in discussions

intercountry adoption: abolitionists, pragmatists and promo

Abolitionists have focused on the negative impact

intercountry adoption can have on child welfare syst
sending countries, despite the relatively small numb
children involved. They stress that intercountry adoption d
professional resources (social workers, lawyers and courts
the needs of many children to service a few foreign appl
Abolitionists argue that if the money spent on adopted ch
was applied to children's services in sending countries, th
of large numbers of children could be improved.22 Abolit
portray intercountry adoption as undermining the develo
of better local services, particularly if local adopter
measured against the material standards of foreigners.23 Th
concerned about the neo-colonialism and ethno-cent
inherent in decisions whereby children are adopted "in their
interests" from poor, emerging states into rich, pow

21 Department of Health, Children Act 1989 Regulations and Guidance,

(1991) paras. 2.40-2.42; D.H. Circular CI(96)4, Adoption, (1996) paras.
D.H. Circular LAC(98)20, Adoption: Achieving the Right Balance (1
Department of Health circulars are available from www.dh.gov.uk.
22 J. Triseliotis, "Intercountry Adoption: Global Trade or Global Gift?" A
and Fostering, 24:2 (2000) pp. 45-54; D. Ngabonziza, "Moral and Pol
Issues Facing Relinquishing Countries" Adoption and Fostering, 15:4
pp. 75-80.
23 S. Hoelgaard, "Cultural Determinants of Adoption Policy: a Colombian
Study," 12 Int J Law, Pol and Fam (1996) pp. 202-241.

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 Judith Masson

countries. In addition to questioning the impact on the well

being of those adopted, they remain concerned about the effect
of seeing the export of children as a solution to a country's child
care problems.
For abolitionists, the adverse impacts of intercountry
adoption are not limited to sending countries. If prospective
adopters prefer healthy foreign babies to local children who need
adoptive families, intercountry adoption may also prevent the
development of domestic adoption for hard to place children.
Their opposition to intercountry adoption is also based on
concerns about abuse, particularly abduction and coercion, to
meet demands for children, and the way that accepted practices,
such as requiring donations to orphanages, can easily develop
into corruption, possibly even the selling of children.
In contrast to abolitionists' views about the impact on
children and society generally, the promoters emphasize the way
that individual children can be helped by intercountry adoption.
They see intercountry adoption as "an ideal solution bringing
together parents with homes, love and care to offer and children
who (desperately) need families."24 For promoters, the problems
of intercountry adoption are associated with too much
bureaucracy which restricts the number of families who can be
assisted, increases the time taken to arrange adoptions,
encourages the avoidance of formal procedures and allows the
exploitation of adopters. Although there are organizations who
both seek to promote intercountry adoption and to see it closely
regulated, promotion is more usually associated with the
rejection of controls and acceptance of the notion that, like
natural parents, those seeking to adopt should not be subject to
assessment or restrictions.

Pragmatists accept the need for regulating intercountry

adoption as a way of eliminating abuses and improving
standards in a practice that will continue. The acceptance of
intercountry adoption in limited circumstances, combined with

24 D. Kirton, "Intercountry Adoption in the UK Towards an Ethical Foreign

Policy?" in P. Selman, pp. 66-85, 74.

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 Journal of International Affairs

a belief that it can be controlled, led to a range of unilateral,

bilateral and international statements and measures,
particularly the development of the Hague Convention on
Intercountry Adoption, that are intended to improve practice in
intercountry adoption.25 The preamble to the Convention
endorses the value of family upbringing, the obligation of states
to give priority to birth families and the advantages of
intercountry adoption where other family care is not available.
But it acknowledges that measures are required to ensure
decision-making in the child's best interests, the respect of the
child's fundamental rights and the prevention of abduction, sale
and trafficking. Pragmatists accept that legislation alone will not
raise standards. New practices will have to displace existing
ones, challenge the beliefs of applicants, agencies, the judiciary
and immigration services, and focus the attention of
governments. Professor William Duncan, Deputy Secretary
General of the Hague Conference, has stressed that the Hague
Convention is only a "secure framework" and a long process will
be required to make it work effectively.26 The Hague
Convention is being promoted by international bodies, the
Council of Europe, the EU and the UN Children's Rights
Committee as the means for improving standards in
intercountry adoption.27

25 Van Loon and G. Parra-Aranguren, "Explanatory Report on the Convention

on Protection and Co-operation in Respect of Intercountry Adoption," Hague
Conference on Private International Law (1993).
26 W. Duncan, "The Hague Convention on the Protection of Children and Co
operation in respect of Intercountry Adoption," in P. Selman, supra note 3, pp.
40-53.

27 European Parliament, Resolution on Improving the Law and Co-operation

Between Member States on the Adoption of Minors (1996) A4-0392; Council of
Europe, Parliamentary Assembly Recommendation 1443 (2000). The UNCRC
consistently urges States involved in intercountry adoption to ratify the Hague
Convention.

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 Judith Masson

Eliminating abuses

The goal of eliminating abduction, sale and trafficking

narrow approach to abuses and applies only the l
standards for the protection of children, parents and in
adopters. It does not ensure that each party is treate
respect, or that any adoption achieved best meets the n
the child. The Hague Convention only works against
indirectly; it is not an international criminal code.28 It
that observance of the Convention "will bring abou
avoidance of such abuses."29 The enactment and enforcem
laws regulating adoption is a matter for the com
authorities in each contracting state. The central authority
be notified of any breach and has responsibility for tal
appropriate action, for example informing other c
authorities.30 If a sending country is concerned abo
standards in a particular receiving state it could ref
accredit agencies seeking to send children to that
Similarly, a receiving state could refuse to accredit age
arranging adoptions from a particular sending state. Sta
have ratified the Convention do not have to apply it in
dealings with non-contracting states and are not precluded
receiving children from them, even when they are aware t
standards of practice are unacceptably low or that abuse is
Where would-be adopters have avoided official proce
because of ignorance or complexity, the availability o
information and clear procedures is likely to increase
compliance. This is the approach taken most recently by the
Department of Health in the United Kingdom. It supported the
development of a telephone helpline and provides a website
which details the procedures to be followed and the payments

28 see Parra-Aranguren, paras. 52-55.

29 Parra-Aranguren, para. 52.
30 Articles 7, 33. A proposal from Australia that would have allowed states to
suspend the operation of the Convention in relation to other contracting states
that were failing to operate its standards was rejected. See Parra-Aranguren,
paras. 539-540.

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Journal of International Affairs

required by those seeking to adopt from 23 countries that have

provided children for adoption in the UK.31
The elimination of the adoption trade, however, is more
difficult where practices have become accepted and formed a
part of the childcare economy. Adoption services—social work
assessments (home studies), legal advice and representation and
the care of children pending adoption—involves costs. In
domestic adoption, such costs may be met from government or
charitable sources, or by payments from the adopters directly; in
intercountry adoption these costs generally fall on the
applicants. Although such payments may appear quite distinct
from payment for the child or for the adoption, there is room
for confusion: a payment for a home study may become
payment to be approved as an adopter; financial support
enabling a mother to keep her other children may appear as
compensation for loss of the child or reward for her agreement;
and further, the payment to the orphanage for the child's care
may not reflect local care costs but support other orphans and
encourage those in charge to support adoption.32 Also, without
such income, orphanages may not be able to maintain even basic
standards. Even limits on reasonable expenses may not help
applicants know how much they should pay in the child's state
of origin or for what reasons, particularly where payments to
officials to expedite processes are culturally accepted.
International instruments have generally rejected
commercial activity in intercountry adoption. The 1986
Declaration of the UN states that, "In no case should placement
result in improper financial gain for those involved in it."33 The
Euradopt Ethical Code requires the fees charged to be
commensurate with the work carried out and those working to

31 www.dh.gov.uk/adoption; see also G. Haworth, "Overseas Adoption

Helpline" in P. Selman, ed., supra note 3, pp. 217-231.
32 For example, the expected payment to a Chinese orphanage when a child is
handed over for adoption is US$3,000. The Indian Supreme Court concerned
about such abuses set payments at a low level per diem. See Laksmi Pandey v.
Union of India, 2 Indian Supreme Court Reports 795 (1984).
33 UN Declaration on Social and Legal Principles, A/41/898, art. 20.

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 Judith Masson

be paid reasonable salaries not linked to the number of cases.34

Similarly the Hague Convention requires central authorities in
each State to take "all appropriate measures to prevent improper
financial gain"35 and requires "accredited bodies"36 to pursue
only "non-profit objectives."37 The European Parliament has
called for private arrangements to be replaced by a compulsory
system undertaken by "duly accredited non-profit making
organizations under public control."38 Although adoptions
carried out by such bodies cannot be guaranteed free from
abuse, the worst and most frequent problems arise in the
context of private adoptions, which are used, at least in part, to
avoid the restrictive procedures of organizations, including by
some people who have been rejected by reputable agencies.
UNICEF regards private adoptions as high risk39 and the
Committee on the Rights of the Child has been particularly
concerned about them.40
The Hague Convention has taken a slightly more lenient
approach to adoption commerce. Although "no one shall derive
improper financial gain" from intercountry adoption and "only
cost and expenses, including reasonable professional fees ... may
be charge or paid," the Convention does not restrict adoption
activity to public bodies or non-profit organizations. 41 Following
a report that most countries permitted adoptions not arranged
through agencies,42 the Special Commission accepted "a

34 Euradopt, Ethical Code (1993) arts 20, 21.

35 ibid., art. 8.
36 Accredited bodies are approved by the state in which they operate to carry out
functions associated with intercountry adoption. See Hague Adoption
Convention, arts. 9-13.
37 Euradopt, art. 11a.
38 A4-0392/1996, paraH.
39 Intercountry Adoption, lnnocenti Digest, No 4 (1998) pp.7-8.
40 For example, see Committee on the Rights of the Child, Summary record of
the 168th Meeting Paraguay.
41 Hague Convention, art. 32.
42 Defence for Children International, Independent Intercountry Adoptions
(1991). These adoptions are sometimes known as "private" adoptions.

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reasonable compromise"43 to allow the use of private

intermediaries where the authorities in both the sending and
receiving country accept this practice. Article 22 allows a State
to permit suitably qualified intermediaries, who are not required
to be in the non-profit sector, to make arrangements for
adoption. Even reports on the suitability of the applicants or on
the adoptability of the child can be prepared by intermediaries,
but final responsibility remains with the central authority or an
accredited body.44 This reflects the desire of the drafters of the
Convention to enhance the potential for its wide application by
avoiding barriers to ratification in any of the major sending or
receiving countries. The notion that good practice will
necessarily drive out bad is problematic.45 Thus the success of
the Convention—wide application—may be its ultimate failure
if it facilitates risky, private adoptions and leads to their general
acceptability.
The Second Special Commission reconsidered the issue of
payments in adoption because of "serious concern surrounding
some of the cost, charges, contributions and donations
involved."46 It recommended that accreditation should require
proof that the agency has adequate resources and the prior
disclosure to prospective adopters of costs.47 In relation to
donations to orphanages and payments for the development of
child care services, the Special Commission was divided between
those who considered that no such payments should be allowed
and those who regarded such payments as legitimate but wanted
clear safeguards to prevent abuse. The Commission established a
compromise based on the acceptance of the importance of both
developing child protection services and preventing payments
influencing decisions about adoption.48 Such distinctions may

43 Parra-Aranguren, para. 373.

44 Hague Convention, art. 22(5); Parra-Aranguren, para. 398.
45 Gresham's Law (derived from economics) states that bad money (debased
coinage) drives out good.
46 Second Special Commission Report, para. 35.
47 ibid., para. 41.
48 ibid., para. 47.

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 Judith Masson

be difficult to maintain in practice unless the payment and

receipt of donations are completely separated from any decisions
about individual children, facilities or agencies.
The case for limiting work in intercountry adoption to
accredited agencies is strengthening in Europe and in some
sending countries. In the Netherlands, applicants must use one
of six organizations that have been licensed by the government
to mediate in adoption.49 In Denmark and Norway all
intercountry adoptions are arranged through agencies which are
members of Euradopt.50 Private adoptions are permitted in
Sweden but they have to be approved by the National Board for
Intercountry Adoptions and account for only seven percent of
the total number of adoptions in the country.51 In the UK only
licensed adoption agencies can place children for adoption.52
Attitudes amongst adoption specialists and government officials
inhibited the development of agencies providing a full service in
intercountry adoption,53 but four voluntary agencies have now
been approved to provide advice and undertake assessments.54
Local authorities are required to provide assessments and
support to applicants for overseas adoption,55 and it is an
offense to arrange a private home study report56 or to bring a

49 A. Duikerken and H. Geerts, "Awareness Required: the Information and

Preparation Course on Intercountry Adoption in the Netherlands" in P. Selman,
ed., p. 371.
50 K. Sterky, "Maintaining Standards: the Role of Euradopt," in P. Selman, ed.,
p. 398.
51 G. Andersson, "Intercountry Adoption in Sweden," in P. Selman, ed., p. 355.
52 Before the Adoption (intercountry aspects) Act 2000, regulation was avoided
by making placements outside the UK; for example, in the country of origin, or
at an overseas airport, see below n. 57 and accompanying text.
53 J. Masson, "The 1999 Reform of Intercountry Adoption in the United
Kingdom: New solutions and Old Problems," F.L.Q. (2000) p. 221.
54 M. Brennan, "Creating a Framework: a View from the Centre," in P. Selman,
ed., p. 192.
55 Adoption (Intercountry Aspects) Act 1999, s. 9; Adoption Act 1976, s.l;
Adoption of Children bill cl. 2, 106.
56 Adoption Act 1976, s.l 1(3A) added by Adoption (Intercountry aspects) Act
1999.

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Journal of International Affairs

child to the UK for adoption without complying with the formal

procedures.57
India only permits adoptions to be arranged through
agencies. British applicants may, however, travel to India and
apply directly to an Indian adoption agency providing they have
obtained the necessary approval from their local authority and
the Department of Health. The placement is then made in India
but the adoption must be finalized in the UK.
In addition to provisions about consents and payments,58
the Hague Convention seeks to prevent abuse by prohibiting
contact between the prospective adopters and the child's parents
before the child has been declared adoptable, consents have
been given and the adopters have been approved.59 Exceptions
are allowed for in-family adoptions, where it is impractical to
forbid it. Where professional agencies oversee adoption
arrangements, pre-adoption meetings between parents and
prospective adopters can meet the parents' need to know who
will raise their child and allay the fears of both parties.60
However, pre-identification in intercountry adoption has been
associated with improper pressure on parents to consent and
child trafficking.61 There is no restriction on contact by an
intermediary, even though the risks of pressure may be greater
where substantial fees can be earned by facilitating an adoption.
Even where abuse is clear and there are evidence that a
child has been purchased, concern for the well being of the child
may lead the breach to be disregarded. In Britain, payments are
strictly regulated. It is a criminal offence to make, offer or
receive any payment for adoption of a child except to a licensed

57 Adoption (Intercountry aspects) Act 1999, s. 14.

58 Hague Convention, arts 4,32.
59 Hague Convention, articles 4, 29, 32; The Euradopt Ethical Code similarly
excludes direct contact between the prospective adopters and the parents;
Euradopt, Ethical Code, article 3.
60 Such meetings are an accepted part of adoption practice in the UK including
in contested cases. See M. Rybum, "Contact after contested adoptions,"
Adoption and Fostering 14, 4 p. 35; J. Castle, et al., "Infant adoption in
England," Adoption and Fostering 24, 4, p. 48.
61 DCI; Parra-Aranguren Report, para. 495.

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 Judith Masson

adoption agency for "expenses reasonably incurred."62 Court

orders cannot be made where there has been an illegal
payment.63 However, the High Court has asserted its power to
approve adoptions where arrangements have been made for
payment on the basis that the welfare of the child requires it.64
Without adoption, the child's status and immigration rights
may be uncertain; the importance of securing the child's
relationship to the only carer he or she knows is regarded as
overriding the need to maintain the integrity of adoption
processes.65

The Subsidiarity Principle

The subsidiarity principle is the key to making intercoun

adoption a service for children rather than for prospec
adopters. It prioritizes care of the child in the family of or
before all other arrangements and relegates intercoun
adoption by unrelated carers behind appropriate care in
child's home state. Although the principal of subsidiarity
been accepted since the 1986 UN Declaration,66 differ
instruments have given other emphases to intercount
adoptions.
The 1986 Declaration clearly prioritized care by the child's
parents, but made no apparent distinction between other forms
of substitute care, including institutional care. Articles 21 of the
UN Convention on the Rights of the Child prioritizes care in
the child's state of origin over intercountry arrangements and

62 Adoption Act 1976, s.57; Adoption and Children bill 2001, cl. 78.
63 Adoption Act 1976, s. 24(2). This provision is not included in the proposed
bill
64 Adoption Act 1976, s.57(3); Re A. (Adoption Placement) 2 F.L.R. (1988) p.
133; Re MW (adoption: surrogacy) 2 F.L.R. (1995) p. 759.
65 J. Masson, "The 1999 Reform of Intercountry Adoption in the United
Kingdom: New Solutions and Old Problems," F.L.Q. (2000) p. 233.
66 UN 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, articles 3 and 4.

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qualifies other care with the term "suitable." "States Parties ...
shall recognize that intercountry adoption may be considered as
an alternative means of the 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."67 The
Euradopt code is similar but more direct. The organization
considering intercountry adoption for a child "must be satisfied
that no other satisfactory solution" could be found in the child's
country of origin.68 The European Parliament resolution
emphasizes the right of the abandoned child to be adopted and
discounts institutional care. It also restricts intercountry
adoption to cases "where it is impossible—even if appropriate
means and economic assistance is provided—for the child to
remain in its family of origin ... or a foster family in the same
country."69
The Hague Convention, whilst giving priority to the child's
family, recognizes "that intercountry adoption may offer the
advantage of a permanent family to a child for whom a suitable
family cannot be found in the country of origin."70 In doing so it
appears to prefer any family to an institution, and adoption
overseas to a family in the child's own country whose suitability
may be in doubt.71 Prioritizing families over institutions accords
with understandings about young children's developmental
needs and reflects understandable concern about the quality of
institutional care in many, but not all, sending countries. This
policy is more controversial when applied to older children who
may not want, or be able to cope with, the emotional demands
of family life.72 Older children also face greater difficulties in
adjusting to a new culture and language and they may present

67UNCRC, art. 21(b).

68 Euradopt, Ethical Rules, art. 4.
69 A4-0392/1996 paras. C and G.
70 Hague Convention, Preamble, paras. 2 and 3.
71 This was intentional. See Parra-Aranguren, para. 46.
72 Some young people in state care in the UK prefer residential placements to
foster care. See C. Harrison, "Young People, Being in Care and Identity," in J.
Masson, et al., Lost and Found (Brookfield, VT: Arena, 1999) pp. 65-103.

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 Judith Masson

problems which adoptive parents are unable to accept.73 Despite

the subsidiarity principle, intercountry adoption may take
priority over care when the mother is herself a child. For
example, in the Philippines, pregnant girls taken into state care
because of sexual abuse cannot keep their babies with them. If
relatives are unable to provide care, the Department of Social
Welfare may approve intercountry adoption plans.
The subsidiarity principle is only meaningful if
organizations considering the appropriateness of adoption can
access services to support care in the child's family or facilitate
other arrangements within the state of origin. Such services are
only likely to be available to public authorities or organizations
that are not narrowly focussed on adoption work. Intermediaries
in the adoption business are poorly placed to find and promote
alternatives. The subsidiarity principle should mean that
children who can most readily be cared for in the state of
origin—those with good health and without disabilities—remain
there. However, healthy babies are also the ones most likely to
be sought after by prospective adoptive parents overseas, and
therefore tend to be the focus of attention of intermediaries.
If intercountry adoption is to take its place as an option of
last resort for the care of children who cannot receive suitable
care, far more will need to be done in states of origin to prevent
abandonment, to develop a range of child care services and to
improve the quality of institutional care. Organizations that
work narrowly in the field of intercountry adoption are in a poor
position to do this. The use of quotas for adoption is essentially
arbitrary and would not ensure that it was used appropriately.
Rather, those engaged in intercountry adoption work should be
under an obligation to reduce the need for intercountry
adoption by developing services in the country of the child's
origin to support families, provide substitute care and encourage

73 Preliminary findings from a longitudinal study of Romanian children adopted

in England suggests that those over the age of two at placement had lower
cognitive scores and were more likely to show attachment disorder at six years.
See M. Rutter, et al., "Recovery and Deficit Following Profound Early
Deprivation," in P. Selman, ed., supra note 3, pp. 107-125.

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Journal of International Affairs

the integration of orphans into the community. Agencies

working in all these areas should be monitored with the
expectation that they show year to year improvements in this
work. Financial support and expert assistance should be found
from the international community and should never be limited
only to support for intercountry adoption. At present, priority
needs to be given in many sending countries to ameliorating
institutional care in order to ensure the development of children
placed in these institutions. In-country family placement is more
likely to be available for healthy, well-developed children, but
resources will be required to create or increase programs for their
care.

Best Chance Adoptions

Research into both domestic and intercountry adoption

last 25 years has provided a good foundation for recogniz
challenges that adoption poses for children and their
parents, and what can be done to overcome them.7
knowledge about adoption is restricted to practitio
those with direct experience; would-be adopters need
more before they decide whether they want to adopt
emphasis on meeting the child's needs makes it par
important that prospective adoptive parents can focu
children for whom intercountry adoption is sought, n
their ideal child. Also, prospective adoptive parents nee
proper consideration to the impact on each adopted chi
him or her time to settle before arranging further adopti

74 For a discussion of adoption research see J. Triseliotis, J. Shirem

Hundleby, Adoption: Theory, Policy and Practice (London: Cassell
Parker, Adoption: Messages from Research (Chichester: Wiley, 19
Selman.

75 A recent study in England found that 90 percent of those inquiring about

intercountry adoption decided against an application: C. Harnott, "Developing
Services for Intercountry Adoption," in P. Selman, ed., supra note 3, p. 242.

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 Judith Masson

Lack of information on procedures in the UK has also been

associated with failing to follow the official procedures.76 In
Western Europe, organizations of adopters have been an
important source of information and advice on intercountry
adoption.77 Adoption agencies there go beyond simply providing
information; they also provide formal preparation classes. In the
UK, such classes have been a usual part of the assessment
process in domestic adoption for some time and, in keeping with
the principle of equivalence in standards for all adoptions,78 are
now being extended to intercountry adoption.79 In the
Netherlands, attendance at six, three-hour preparation classes is
mandatory for those seeking intercountry adoption.80 As the
impact of institutionalization on children is recognized and
intercountry adoption develops to include children with special
needs, the preparation of adoptive parents becomes an
important part of ensuring that applicants can successfully care
for the child placed with them.
Written information and preparation classes are not the
only way for the would-be adoptive parents to develop
knowledge and understanding about intercountry adoption.
Public authorities and agencies in some sending countries
require adopters to visit and collect the child personally.81 A
member of the Philippines Intercountry Adoption Board
explains that this as an important part of understanding the
child's cultural background.82 Such arrangements can help to
ensure a more sensitive transfer for the child, who might

76 Masson, p. 228.
77 Andersson; Duinkerken and Gerts; J. Fleming, "Oasis: the Overseas Adoption
and Information Service," in P. Selman, ed..
78 BAAF, Policy Statement on Intercountry Adoption (1998); Department of
Health, Guide to Intercountry Adoption Practice and Procedures (1997) para.
2.4.

79 Harnott; C. Hesslegrave, "The Role of Accredited Bodies in Preparation and

Assessment," in P. Selman, ed., pp. 276-289.
80 Duinkerken and Gerts, p. 374.
81 New South Wales Law Reform Commission, Research Report No 6,
Intercountry Adoption and Parent Support Groups (1996).
82 Sedfrey Candelaria, personal communication.

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Journal of International Affairs

otherwise travel across the world to an unknown destination in

the company of a complete stranger.
Increased awareness about the needs of children in sending
countries has been associated with the development of agency
programs to support children in their own countries and to place
children with special needs rather than babies via intercountry
adoption.83 In some sending countries—notably India—agencies
licensed for intercountry adoption are required to provide a wide
range of in-country services, including adoption. The Central
Adoption Resource Centre (CARA), the body responsible for
licensing Indian Agencies and endorsing agency's adoption
recommendations, sets a quota requiring at least 50 percent of
children in an agency's care to be placed for domestic
adoption.84 While the number of Indian children placed in
intercountry adoption has remained fairly constant, domestic
adoption has increased four-fold.85
Agencies in receiving countries need to be aware of the
general conditions for children in sending countries as well as
their culture, laws and practice. It is unrealistic for agencies to
work in more than a few countries if they are to have a detailed
knowledge of and good working relationship with sending
countries and the relevant agencies involved. Similarly, agencies
in sending countries need to be aware of the conditions in the
countries where children are being sent. Where strong links are
made between agencies and countries, adopters and children are
more likely to be able to share their experiences with others.
This can alleviate the isolation that people adopted outside their
country of origin can feel.86
Many of those who have been adopted want to have
information about their birth families. This is crucial to their
identity and should be protected as part of their identity under

83 Andersson, p. 355; Fleming, p. 236.

84 A. Damodaran, and N. Mehta, "Child Adoption in India" in P. Selman, ed., p.
411.

85 Ibid., p. 417.
86 J.S. Sjoren, "A Ghost in My Own Country," Adoption and Fostering 20, 2
(1996) pp. 32-35; S. Jardine, "In Whose Interests?" in P. Selman, ed., p. 488.

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 Judith Masson

Article 8 of the UN Convention on the Rights of the Child. In

intercountry adoption, the child's right to an identity, which
includes their birth identity, can be difficult to satisfy because of
the limited information available where children are abandoned,
the reluctance to disclose information, and the less developed
administrative systems (for example, for birth registration). The
extreme stigma associated with a birth outside of marriage,
which frequently ensures that children are available for
adoption, restricts the information that is given by mothers and
makes privacy crucial to their safety. Consequently, adoption
laws in many sending countries guarantee secrecy. The Inter
American Adoption Convention allows only the passing of non
identifying information but the Hague Convention has gone
much further in seeking to make information available for
adopted people without creating barriers that might make states
of origin unwilling to ratify.87
Under the Hague Convention, the central authorities in a
sending country must collect information about the child's
background and transfer it to the central authority in the
receiving state.88 Both must preserve this information. No time
limit is imposed so it is a matter for each state to decide for how
long information will be kept.89 Access to the information
(which may be via a representative) is determined by the law of
the state holding it.90 This appears to ensure equal treatment for
all adoptees within a state, but, in practice, for the reasons
discussed above, intercountry adoptees are unlikely to find out
about their origins. If information is kept indefinitely, the
possibility remains that laws will be liberalized and access will be
permitted, as occurred in England and Wales in 1976.91 Again,
it is the attitudes and practices of those arranging adoptions that

87 Inter-American Convention on Conflict of Laws Concerning the Adoption of

Minors (1984) article 7.
88 Hague Convention, article 16.
89Art. 30(1); Parra-Aranguren, para. 511.
90 Hague Convention, art. 30(2).
91 Children Act 1975, s.26. People adopted before 1976 are required to attend
counselling before they can access their birth records.

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Journal of International Affairs

are likely to determine the amount and quality of information

provided.
European agencies have been instrumental in providing
post adoption support to intercountry adoption families. As well
as providing telephone counselling, Nordic agencies have
established groups for children from different countries,
arranged visits to children's countries of origin and assisted
young adoptees to take part in summer camps in their adoptive
or original country with groups of other adopted people.92 All
these activities can help adoptees and their families keep hold of
and value their special identity. Self-help groups can arrange
such programs, without the intervention of agencies. However,
it is more difficult to make contact with and offer services to
parents and children when the adoptions have been arranged
independently. Far more needs to be done. Although adopted
children can be given a window into their cultural heritage,
unless they also acquire the language of their birth mother, their
access to that heritage and to members of their birth community
is severely restricted.

Conclusion

The Hague Convention sets out a framework for interc

adoption and provides for its implementation through c
authorities. The speed and scale of ratifications b
countries of origin and receiving countries suggests th
Convention will be a major influence on intercountry ad
practice. The suitability and success of arrangements f
adoption of individual children is dependent on the asses
preparation and support of prospective adopters an
children who are placed with them. By allowing this wor
undertaken by intermediaries for profit, the Conventio
the continuation and institutionalization of adult-centered
adoption practices.

; Sterky, p. 403; Andersson, p. 362.

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 Judith Masson

Improving intercountry adoption and ensuring that it plays

its proper role among all child welfare solutions is dependent on
both an adequate legal framework and adoption professionals
who can center the interests of the child. Organizations working
in adoption need to make a long-term commitment to the
children whose adoptions they arrange, the adults who adopt
them and the parents who relinquish them. Adoption is a
process that has life-long implications; those directly effected
may need support many years after the change of legal status
has been finalized. Individual intermediaries and small
organizations are unlikely to have the resources or the s
power to make such a commitment, nor is it easy to ensure
others will take on this work if they close. Adoption ove
only one option to improve the care of children. Th
arrangements can only be made for individual children i
working for their future can access a range of services, not
adoption. Organizations working on intercountry adoptio
the capacity to develop sponsorship and other progr
states of origin or to work in partnership with others prov
such services.

Past and current practice strongly suggests that good

practice is more likely to be achieved by public bodies and well
regulated non-profit agencies than by intermediaries in the
business of adoption. It is the need to ensure good practice
where adoption is only one of a number of options and the
support of adoption without limit of time that makes agencies
more appropriate to take responsibility for this work than
individuals. Agencies are not a panacea; they too have been
associated with poor practice. However, placing agencies in
competition with market operators is likely to reduce rather
than raise standards to the detriment of children, birth parents
and would-be adopters. Increasing the demand for adoption, by
increasing the number of people who arrange adoptions, or
allowing profit to motivate their work, does not increase the
number of children for whom adoption overseas is the best
solution. There is no evidence that higher charges for adoption
reflect greater preparation of adopters or support following

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 Journal of International Affairs

adoption. Rather, it appears that higher fees may be charged by

those who can satisfy the applicants' needs, particularly
applicants rejected by other agencies.
Accreditation standards are crucial. Their acceptance by
agencies and their monitoring by competent authorities can
ensure that children, biological parents and prospective adopters
are treated with respect and that the needs of the child are given
the highest priority. Both sending and receiving countries can be
more thorough if they have only relatively few organizations to
accredit. It is also important that all those involved in arranging
intercountry adoption are clear about their responsibilities and
the procedures that they should follow. Clarity about
responsibilities and defined procedures can help eliminate delays
and make abuses easier to detect. Bilateral arrangements
between countries where good understandings develop between
accredited bodies and central authorities may make this easier to
achieve. However, high standards of practice will remain heavily
dependent on the ethos of those providing intercountry
adoption services. Children's well-being is dependent on their
understanding of children's needs and the agencies' willingness
to work for them in the face of demands from parents, would-be
adopters, child care organizations and governments. Φ

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