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
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 Intercountry Adoption: A
Global Problem or a Global
Solution?
BY JUDITH SSON

”The US is unique amongst developed states in

preferring private adoption, a position that I€atz
associates with the American bias towards market
mechanisms and preference for individttdl autonomy
Over state regulation.

doption involves the legal, permanent transfer of a child

from thebirth parent or parents to new 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.' In doing so it accepts that

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 oflnternational Affairs

intercountry adoption can and should be regulated, rejecting

both the alternatives of a free marlcet 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 trafficlcing 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 l‹nown 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 altruistic

response to the plight of war orphans and the abandoned
children of servicemen in World War II, the I€orean War and
the Vietnam War. It now involves the transfer of more than
30,000 children each year from over 50 countries.' With few
exceptions, children move from poor countries to wealthy ones.’

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).
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.
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

142
 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.’ 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.
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, Half a Million Women (New York: Penguin, 1992).

143
 Journal oflnternational Affairs

international frameworlc for arranging and formalizing these

adoptions and to prevent abuses.‘ 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.' 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.’ The following month, China began the process of joining
the Convention by signing it at the Special Session in the
Hague.' 0 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 taslc.
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.
' The U.K. has signified its intention to ratify and passed the Adoption
(Intercountry aspects) Act 1999 but has not fully implemented this new law.
9
Intercountry Adoption Act of 2000, 106th Cong., H.R. 2909.
" Report and Conclusions of the Special Commission (28 November/1
December 2000), para. 6.

144
 Judith Masson

specialists have facilitated the flow of ideas within Europe

through Euradopt conferences and between the US, the UIF
New Zealand and Australia.' 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. 2
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
relected 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
UI(, often medical staff or church ministers acted as

i
' For example, BAAF (British Agencies for Adoption and Fostering, the British
umbrella group for adoption agencies) regularly invites U.S. adoption experts to
give seminars in the U.K. Similarly, Dr Murray Rybum disseminated New
Zealand experience in open adoption in Australia and the U.K.
'2 UN Convention on the Rights of the Child, article 21(c). Only Somalia and the
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. l 15-
133. In the UK, BAAF has endorsed equivalence in its 1998 police statement on
intercountry adoption. For further details contact www.BAAF.org.uk.

145
Journal oflnternational Affairs

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

In many countries, the development of professional adoption
specialists, worming in licensed adoption agencies, led to
controls on intermediaries.' 3 The US is unique amongst
developed states in preferring private adoption, a position that
IRtz associates with the American bias towards marlcet
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 UIF, 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 lcnown 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." 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 UIF, the Children Act
of 1975 has allowed adopted adults to obtain details about their

i
' 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.
'4 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.
" M. Rybum, “Secrecy and Openness in Adoption - an Historical Perspective”
Social Policy and Administration, 29 (1995) pp. 150-168.

146
 Judith Masson

birth family.' 6 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. I’ 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. 1’ 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 UIF." The British Adoption Project showed that
placements could be found for such children in white families,
and trans-racial adoption developed. 2° 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
i6
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 a1., Supporting Adoption - Reframing the Approach (trade paper,
May 1999); Social Services Inspectorate, ’Moving goalposts’ A study of post-
adoption contact in the North ofEngland (1995) Department of Health.
" The proposed new law for England and Wales, the Adoption of children bill
2001, c1.2(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).
i9
For a discussion of the ideological issues see P. Hayes, “The Ideological
Attack on Transracial Adoption,” /ni 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).
2
' 0. Gill, and B. Jackson, Adoption and Race (New York: St. Martins, 1983).
The British Adoption Project ran from 1965 to 1969.

147
Journal oflnternational Affairs

importance of children’s ethnic, cultural and religious identity

but also valuing 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.2'

THE CONTESTED NATURE OF INTERCOUNTRY OPTION

Three value positions can be identified in discussions about

intercountry adoption: abolitionists, pragmatists and promoters.

Abolitionists have focused on the negative impact that

intercountry adoption can have on child welfare systems in
sending countries, despite the relatively small numbers of
children involved. They stress that intercountry adoption diverts
professional resources (social worlcers, lawyers and courts) from
the needs of many children to service a few foreign applicants.
Abolitionists argue that if the money spent on adopted children
was applied to children’s services in sending countries, the lives
of large numbers of children could be improved. 22 Abolitionists
portray intercountry adoption as undermining the development
of better local services, particularly if local adopters are
measured against the material standards of foreigners. 2' They are
concerned about the neo-colonialism and ethno-centricity
inherent in decisions whereby children are adopted “in their best
interests” from poor, emerging states into rich, powerful

2
' Department of Health, Children Act 1989 Regulations and Guidance, Vol. 3
(1991) paras. 2.40-2.42; D.H. Circular CI(96)4, Adoption, (1996) paras. 13-15;
D.H. Circular LAC(98)20, Adoption. Achieving the Right Balance (1998).
Department of Health circulars are available from www.dh.gov.uk.
22
J. Triseliotis, “Intercountry Adoption: Global Trade or Global Gift?” Adoption
and Fostering, 24:2 (2000) pp. 45-54; D. Ngabonziza, “Moral and Political
Issues Facing Relinquishing Countries” Adoption and Fostering, 15:4 (1991)
pp. 75-80.
2
' S. Hoelgaard, “Cultural Determinants of Adoption Policy: a Colombian Case
Study,” 12 Int J Law, Pol and Fam (1996) pp. 202-241.

148
 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.”' 4 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

2
’ D. Kirton, “Intercountry Adoption in the UK Towards an Ethical Foreign
Policy?” in P. Selman, pp. 66-85, 74.

149
Journal oflnternational 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 trafficlcing. 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. 2’

2
’ 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).
" 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.

150
 Judith Masson

ELIMINATING ABUSES

The goal of eliminating abduction, sale and trafficking takes a

narrow approach to abuses and applies only the lowest
standards for the protection of children, parents and intending
adopters. It does not ensure that each party is treated with
respect, or that any adoption achieved best meets the needs
of the child. The Hague Convention only works against abuses
indirectly; it is not an international criminal code. 2' It expects
that observance of the Convention “will bring about the
avoidance of such abuses. 29 The enactment and enforcement of
laws regulating adoption is a matter for the competent
authorities in each contracting state. The central authority must
be notified of any breach and has responsibility for talking all
appropriate action, for example informing other central
authorities.’0 If a sending country is concerned about poor
standards in a particular receiving state it could refuse to
accredit agencies seeking to send children to that state.
Similarly, a receiving state could refuse to accredit agencies
arranging adoptions from a particular sending state. States that
have ratified the Convention do not have to apply it in their
dealings with non-contracting states and are not precluded from
receiving children from them, even when they are aware that
the standards of practice are unacceptably low or that abuse is
rife.
Where would-be adopters have avoided official procedures
because of ignorance or complexity, the availability of good
information and clear procedures is likely to increase
compliance. This is the approach taken most recently by the
Department of Health in the United Ifingdom. It supported the
development of a telephone helpline and provides a website
which details the procedures to be followed and the payments

2
' see Parra-Aranguren, paras. 52-55.
29
Parra-Aranguren, para. 52.
' 0 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.

151
Journal oflnternational Affairs

required by those seelcing to adopt from 23 countries that have

provided children for adoption in the UIF. 3'
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 world
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.3' Also, without such income, orphanages may not be
able to maintain even basic standards. Even limits on reasonable
expenses may not help applicants lcnow 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 worlcing to

' 1 www.dh.gov.uk/adoption; see also G. Haworth, “Overseas Adoption

Helpline” in P. Selman, ed., supra note 3, pp. 217-231.
' 2 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 ofIndia, 2 Indian Supreme Court Reports 795
(1984).
33
UN Declaration on Social and Legal Principles, A/41/898, art. 20.

152
 Judith Masson

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

Similarly the Hague Convention requires central authorities in
each State to talce “all appropriate measures to prevent improper
financial gain 5 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. 3’ 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 risk” and the Committee on the Rights of
the Child has been particularly concerned about them.4’
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. 4’ Following a report
that most countries permitted adoptions not arranged through
agencies ,4° the Special Commission accepted “a

3
‘ Euradopt, Ethical Code (1993) arts 20, 21.
” 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. lla.
3
' A4-0392/l996, para H.
39
Intercountry Adoption, Innocenti Digest, No 4 (1998) pp.7-8.
’0 For example, see Committee on the Rights of the Child, Summary record of
the l68th Meeting Paraguay.
l
Hague Convention, art. 32.
42
Defence for Children International, Independent Intercountry Adoptions
(1991). These adoptions are sometimes known as “private” adoptions.

153
 Journal oflnternational Affairs

reasonable compromise ”’ 3 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. 4’ Thus the success of
the Convention—wide application—may be its ultimate failure
if it facilitates rislcy, 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.’7 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. 4’
Such distinctions may

" Parra-Aranguren, para. 373.

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

154
 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. 4’ In Denmark and Norway all intercountry
adoptions are arranged through agencies which are members of
Euradopt. 0 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. 5' In the UIF 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 ,’3 but four voluntary agencies have now
been approved to provide advice and undertake assessments. 5’
Local authorities are required to provide assessments and
support to applicants for overseas adoption," and it is an
offense to arrange a private home study report 56 or to bring a

’9 A. Duikerken and H. Geerts, “Awareness Required: the Information and

Preparation Course on Intercountry Adoption in the Netherlands” in P. Selman,
ed., p. 371.
" K. Sterky, “Maintaining Standards: the Role of Euradopt,” in P. Selman, ed.,
p. 398.
" 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.
" J. Masson, “The 1999 Reform of Intercountry Adoption in the United
Kingdom: New solutions and Old Problems,” F.L.Q. (2000) p. 221.
" M. Brennan, “Creating a Framework: a View from the Centre,” in P.
Selman, ed., p. 192.
” Adoption (Intercountry Aspects) Act 1999, s. 9; Adoption Act 1976, s.l;
Adoption of Children bill c1. 2, 106.
’6 Adoption Act 1976, s.l1(3A) added by Adoption (Intercountry aspects) Act
1999.

155
Journal ofInternational Affairs

child to the UIF 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 UIF.
In addition to provisions about consents and payments, 5’
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.” 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 how who
will raise their child and allay the fears of both parties. 6’
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

’7 Adoption (Intercountry aspects) Act 1999, s.14.

5
' Hague Convention, aRs 4,32.
' 9 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.
6
' Such meetings are an accepted part of adoption practice in the UK
including in contested cases. See M. Ryburn, “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.
1
DCI; Parra-Aranguren Report, para. 495.
 Judith Masson

adoption agency for “expenses reasonably incurred. 62 Court

orders cannot be made where there has been an illegal
payment.6’ 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.‘4
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 lcnows is regarded as
overriding the need to maintain the integrity of adoption
processes. 6’

THE SUBSIDIARITr PRINCIPLE

The subsidiarity principle is the key to making intercountry

adoption a service for children rather than for prospective
adopters. It prioritizes care of the child in the family of origin
before all other arrangements and relegates intercountry adoption
by unrelated carers behind appropriate care in the child’s home
state. Although the principal of subsidiarity has been accepted
since the 1986 UN Dec1aration ,‘6 different instruments have given
other emphases to intercountry 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
“ 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.
" J. Masson, “The 1999 Reform of Intercountry Adoption in ae United
Kingdom: New Solutions and Old Problems,” F.L.Q. (2000) p. 233.
6
‘ 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.

157
Journal oflnternational Affairs

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.”” 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.6' 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
co untrys 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.”” 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.” 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.’2 Older children also face greater difficulties in
adjusting to a new culture and language and they may present

‘7 UN CRC, art. 21(b).

6
' Euradopt, Ethical Rules, art. 4.
‘9 A4-0392/1996 paras. C and G.
’O Hague Convention, Preamble, paras. 2 and 3.
7
' This was intentional. See Parra-Aranguren, para. 46.
’2 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 a1., Lost and Found (Brookfield, VT: Arena, 1999) pp. 65-103.

158
 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 world. 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
world 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

7
' 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.

159
Journal oflnternational Affairs

the integration of orphans into the community. Agencies

worlcing in all these areas should be monitored with the
expectation that they show year to year improvements in this
world. 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 OPTIONS

Research into both domestic and intercountry adoption over the

last 25 years has provided a good foundation for recognizing the
challenges that adoption poses for children and their adoptive
parents, and what can be done to overcome them.74 Much
lmowledge about adoption is restricted to practitioners and
those with direct experience; would-be adopters need to know
more before they decide whether they want to adopt. 75 The
emphasis on meeting the child’s needs malces it particularly
important that prospective adoptive parents can focus on the
children for whom intercountry adoption is sought, not just on
their ideal child. Also, prospective adoptive parents need to give
proper consideration to the impact on each adopted child, giving
him or her time to settle before arranging further adoptions.

7
’ For a discussion of adoption research see J. Triseliotis, J. Shireman, and
M. Hundleby, Adoption. Theory, Policy and Practice (London: Cassell,
1997); R. Parker, Adoption. Messages from Research (Chichester: Wiley,
1999); and P. Selman.
7
' 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.

160
 Judith Masson

Laclc of information on procedures in the UI( 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. 7’ Adoption agencies there go beyond simply
providing information; they also provide formal preparation
classes. In the UIF, 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 ,7' are now being extended to intercountry adoption. 7’
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." A
member of the Philippines Intercountry Adoption Board
explains that this as an important part of understanding the
child’s cultural background.’° Such arrangements can help to
ensure a more sensitive transfer for the child, who might

’6 Masson, p. 228.
77
Andersson; Duinkerken and Gerts; J. Fleming, “Oasis: the Overseas Adoption
and Information Service,” in P. Selman, ed..
7
' BAAF, Policy Statement on Intercountry Adoption (1998); Department of
Health, Guide to Intercountry Adoption Practice and Procedures (1997) para.
2.4.
’9 Harnott; C. Hesslegrave, “The Role of Accredited Bodies in Preparation and
Assessment,” in P. Selman, ed., pp. 276-289.
' 0 Duinkerken and Gerts, p. 374.
" New South Wales Law Reform Commission, Research Report No 6,
Intercountry Adoption and Parent Support Groups 1996).
' 2 Sedfrey Candelaria, personal communication.

161
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.’3 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. 8’
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
lmowledge of and good worlcing 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.'6
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

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

" A. Damodaran, and N. Mehta, “Child Adoption in India” in P. Selman,
ed., p. 411.
' s Ibid., p. 417.
" 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.

162
 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. ' 7
Under the Hague Convention, the central authorities in a
sending country must collect information about the child’s
baclcground and transfer it to the central authority in the
receiving state." 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." Access to the information
(which may be via a representative) is determined by the law of
the state holding it." 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 I 976. 9’ Again, it
is the attitudes and practices of those arranging adoptions that

'7 Inter-American Convention on Conflict of Laws Concerning the Adoption of

Minors (1984) article 7.
" Hague Convention, article 16.
' 9Art. 30(1); Parra-Aranguren, para. 511.
“ 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.

163
Journal oflnternational 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.’ 2 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 intercountry

adoption and provides for its implementation through central
authorities. The speed and scale of ratifications by both
countries of origin and receiving countries suggests that the
Convention will be a major influence on intercountry adoption
practice. The suitability and success of arrangements for the
adoption of individual children is dependent on the assessment,
preparation and support of prospective adopters and the
children who are placed with them. By allowing this work to be
undertaken by intermediaries for profit, the Convention risks
the continuation and institutionalization of adult-centered
adoption practices.

’2 Sterky, p. 403; Andersson, p. 362.

164
 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 staying
power to make such a commitment, nor is it easy to ensure that
others will take on this work if they close. Adoption overseas is
only one option to improve the care of children. The best
arrangements can only be made for individual children if those
worlcing for their future can access a range of services, not just
adoption. Organizations working on intercountry adoption need
the capacity to develop sponsorship and other programs in
states of origin or to world in partnership with others providing
such services.
Past and current practice strongly suggests that good
practice is more lilcely 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 talce responsibility for this world than
individuals. Agencies are not a panacea; they too have been
associated with poor practice. However, placing agencies in
competition with marlcet operators is lilcely 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

165
Journal ofInternational 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.

166