The Convention on the Rights of the Child (CRC) sets international legal standards for the protection and wellbeing of children. As UNICEF recognised in their report A World Fit for Children, this convention has helped to accord political priority to children. However, ensuring that children’s human rights receive their fair share of attention and resources remains a political hurdle throughout the world.
Intercountry adoption is one such example where political will to ensure children’s rights is lacking. Intercountry adoption is where a child is taken from the country they were born in to a different country to live. The child’s birth country is called the country of origin and the country the child is taken to reside with adoptive parents is called the receiving country.
This article identifies what the CRC requires to secure the human rights of a child in the intercountry adoption process. The article then proceeds to identify some areas for law reform.
Article 21 of CRC requirements
Apart from requiring that intercountry adoption be an option of last resort, article 21 of CRC requires that the best interests of the child be taken into account. This means that the rights of the child to be adopted are more important than the rights of the adoptive parents. Sometimes the interests of both parents and the child can both be met. For example, securing a family for an abandoned child is always preferable to a child living in an institution of any kind. This has been recognised by the Committee on the Rights of the Child in many of their concluding observation reports. The result is the child secures a home and adoptive parents secure a child.
However, in considering a child’s best interests, importance must be placed on their culture. UNICEF’s A World Fit for Children Report identified that countries should “promote the physical, psychological, spiritual, social, emotional, cognitive and cultural development of children as a matter of national and global priority.” This requires that cultural factors be considered. The Bringing them Home report on the Stolen Generation in Australia identified the difficulty children experience when their cultural links are severed, coupled with the difficulty children experience acquiring cultural knowledge and connections in later years. The importance of cultural factors applies equally to intercountry adoption. Cultural factors must therefore be taken into account in determining the best interests of a child.
Adoption placements must be determined based on identifying the best possible parents for the child.
This is partly why the Committee noted that an adopted child has the right to know his or her original identity. However a child subject to intercountry adoption, does not have the right to retain citizenship of their country of origin. Nor does the child have the right to retain contact with family members. Indeed there is no requirement that the child even learns the language of their country of origin or retains any other cultural links.
Aside from cultural factors, meeting the best interest of the child being considered pre-adoption, requires that children who are the most likely to remain in institutions in their country of origin be prioritised for intercountry adoption. This means children who are disabled, older or infected with HIV should be accorded priority for intercountry adoption. But these are not the children celebrities are adopting.
Prospective adoptive parents, celebrities and others, want healthy babies. While it is acknowledged that many prospective parents may not have adequate resources to deal with a higher needs infant, parents need to understand that intercountry adoption, as a measure of last resort, burdened by an assessment of the best interests of the child, places the needs of the child to be adopted above parental rights. It is this parental rights mindset that needs to change in the intercountry adoption area. The rights of the child must be prioritised.
The need for the mindset to be changed is being tackled by the Committee on the Rights of the Child in their concluding observations. For example, New Zealand has been criticised by the Committee for not ensuring that children adopted into New Zealand maintain their original first names. Similarly, political considerations are irrelevant. Recently for example the Australian Government announced that the South Korean children available for adoption presently would be allocated equitably through the states and territories of Australia. This action fails to secure the best interests of these children because the priority should be on finding them the best home, no matter which state it’s in.
Adoption placements must be determined based on identifying the best possible parents for the child. If the parental rights mindset is to change those disabled, older children and those with health needs will have to be the most likely to be adopted overseas. It is these children who will genuinely have their best interests met by an intercountry adoption. This is because intercountry adoption will be their only remaining opportunity to secure a loving family environment.
It is disappointing that the Committee on the Rights of the Child has not directly addressed the importance of retaining cultural identity and links to a country of origin in any of their concluding observations. This issue needs to be prioritised by this United Nations Committee. Despite this it is interesting that a country such as Belarus requires that adopted children maintain contact with their native land and relatives. This approach should be adopted internationally and in Australia as an approach designed to secure the best interests of the child.
Are children available for adoption really abandoned?
With low birth registration in many countries of origin there is no guarantee that biological parents are in fact consenting to an adoption. For example in India 46 per cent of children are not registered and in Nicaragua 40 per cent of children are not registered at birth. This makes it hard to ensure that authorities are in fact dealing with relinquishing parents as opposed to persons fraudulently representing they are the parents of a child.
Unreliable birth information makes it all the more difficult to test and verify whether the child is legitimately abandoned. This in turn makes children prime targets in such countries for trafficking and the sale of children for adoption.
Is intercountry adoption really the option of last resort?
There is evidence that intercountry adoption is not an option of last resort. Countries of origin must do more to explore local foster families and adoptive families before the child is adopted overseas. To ensure that intercountry adoption is a last resort measure, countries of origin need to work on their domestic adoption and alternative family care systems. Where domestic adoption law is lacking, intercountry adoptions will also lack protections for the children being adopted. Reforming all adoption laws in countries of origin requires adequate resourcing.
This again highlights the need for political will to guarantee the human rights of children are secured. The question also arises as to why receiving countries can’t themselves examine whether a child is adoptable as part of the adoption process. This is why creative solutions across borders are required to address, secure and deliver human rights to children who are adopted overseas. This will place less pressure on poorer countries from where children are often adopted.
This requires that receiving countries make their own enquiries as to whether a child is genuinely adoptable and satisfy themselves that in light of the particular circumstances of the child, including the inability to find a local placement for the child, it is in the child’s best interests for an intercountry adoption to proceed.
Does the Hague Convention provide additional protections?
The Hague Convention despite being designed to create additional structure and protection for children in the intercountry adoption area, has failed. This is because the Hague Convention has failed to ensure no financial gain is derived from intercountry adoptions. This means agencies can set reasonable costs to process an adoption overseas. This creates a market for children. It does this by introducing uncertainty as to what “reasonable” costs are and allows for the manipulation of the intention of article 21 of the CRC.
The Committee has also identified there is evidence of undue payments to foreign adoption agencies and of children being sold for adoptive purposes. Accredited agencies should be required to itemise expenditure related to the adoption, with the account reviewable by the central authority responsible for adoptions in the state. Whether the costs incurred in the proceedings are reasonable is another matter an independent child representative could address in the process of formalising the adoption order. All adoptions should go through the courts and be subject to judicial review.
However, it is unrealistic to expect developing countries, usually countries of origin, to regulate agencies processing adoptions when these countries often have limited, if any, social service programs developed to support and assist families within their countries. For instance China is unlikely for domestic policy reasons to restrict the flow of children from their country to western countries.
The way forward
The registration of all children at birth must be urgently addressed. This is an underlying problem that will continue to frustrate and undermine intercountry adoptions until it is addressed. This requires free and accessible birth registration worldwide. It also requires political will to allocate sufficient resources to ensure this occurs.
Another key feature for reform must be the appointment of an independent child’s representative who is tasked to represent the child in the adoption process. The role of the independent representative would be to ensure that the rights of prospective adoptive parents are secondary to the child’s. For example, this could involve making sure no local family was available to adopt the child in the country of origin and ensuring that the adoptive parents are open to maintaining the child’s cultural links.
Part of ensuring the best interests of a child is met would require ensuring that cultural links are preserved along with cultural identity.
This would require that the independent child’s representative be able to examine and participate in court proceedings in both the country of origin and the receiving country to secure the best interests of the child. This would also enable adoption authorities in both countries of origin and receiving countries to jointly approve of prospective adoptive parents as the best possible match for the child available for adoption. It is recognised this would be a costly, time consuming and logistically difficult task. However, if governments are serious about securing the best interests of children, it should be done.
Allowing a legal practitioner as an independent child representative to appear in courts in countries of origin and receiving countries would allow such a specialist to make inquiries into the circumstances around the adoption generally. Such a specialist would be required to be a human rights specialist with expertise in children’s rights and the international environment in which intercountry adoption arises.
In practical terms receiving countries would need to assume the burden of the costs related to such an initiative. Thus the burden for the associated costs would fall on the prospective adoptive parents. This initiative could be funded through a reallocation of money already paid by prospective parents in receiving countries. In particular, if the Hague Convention was amended to not allow adoption agencies to make a profit from intercountry adoptions, the money could be spent on ensuring the intercountry adoption was one of genuine last resort.
Part of ensuring the best interests of a child is met would require ensuring that cultural links are preserved along with cultural identity. This should not be optional as it presently is.
It goes without saying that children themselves, providing they are capable of expressing a view, have a say in any adoption proceedings. The difficulty here is that many children adopted overseas are babies. There is therefore a strong case for listening to the view and obtaining feedback from children who have themselves been through the intercountry adoption process.
Clearly post-adoption reports should be routinely completed where the child is regularly visited and provided with an opportunity to express how things are going. Countries of origin and receiving countries have a responsibility to ensure that a child’s best interests are being met. If governments are going to allow intercountry adoptions to take place they should check that the child’s interests continue to be met. The child should also know that there is a possibility for change to result from these meetings – they are not simply a box to tick. The child must be actively listened to.
There is no doubt that in order to secure the best interests of the child as the primary consideration, countries need to be creative and look beyond their own borders and assist countries of origin regulate adoption.
Yvette Cehtel graduated from the University of Tasmania with a Bachelor of Laws in 1995 and is presently a Monash University Master of Laws student specialising in human rights. Yvette is currently employed with the Tasmanian Aboriginal Centre, is a Legal Aid Commissioner and is on the Women’s Legal Service Management Collective. Yvette has previously worked for: the Crown Law Office in New Zealand, as an Adviser to a Tasmanian Attorney General, as a Lawyer, and as a Judges Associate to a Tasmanian Supreme Court Judge.