In her recent piece, “International Adoption: Thoughts on Human Rights Issues,” Professor Elizabeth Bartholet leaves no doubt where she stands: International adoption should be if not the preferred alternative, then at least a preferred alternative for the “millions on millions” of children in the developing world who would otherwise be doomed to living out their childhoods in damaging institutions
or on the streets. She believes that structuring legal regimes in ways that enable as many children as possible to avoid such fates should be at the core of any human rights-based discussion of international adoption.
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[S]he maintains that discourse and policy-making on international adoption are controlled by a human rights community at worst hostile to, and at best profoundly suspicious of, international adoption. Bartholet accuses this community, and particularly entities like UNICEF and the Committee on the Rights of the Child, of setting up legal, ideological, and rhetorical roadblocks to international adoption. In her view, this community’s anti-adoption attitude is based on little more than naive romanticism of “culture” and unreflective hostility toward a perceived “colonialism” deemed inherent in transferring children from the developing to the developed world. Bartholet contends that not only is this discourse blind to the pragmatic realities of suffering children, it is based on overestimates of abuses in the international adoption process.
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Like Bartholet, we are international adoptive parents, and like Bartholet, we place ourselves in the camp of those generally supportive of international adoption. Where we part company with her is in our characterization of the bigger picture. Bartholet’s position seems appealing because it relegates to the periphery of the analysis disturbing and problematic questions that should be at its core, specifically troubling practices like child-buying, coercion of vulnerable birth parents, weak regulatory structures, and profiteering. Our analysis breaks little new theoretical ground, and we do not propose programmatic solutions. Rather we identify and explore complexities that Bartholet for the most part ignores, but which are central to the viability and integrity of any international adoption process. To that end, we address the following questions: First, whether Bartholet’s claim that there are millions of adoptable children “in institutions and on the streets” has sufficient empirical support to be credible? (Part I). Second, to what extent does the private adoption agency system actually serve the needs of children, maintain the integrity of the
adoption process, and protect the rights of children, birth, and adoptive families? (Part II) To what extent do existing legal frameworks in sending countries and in the
US, specifically the Immigration and Nationality Act’s (INA) orphan provisions and the Hague Convention, provide the overlapping layers of protection against abuses that Bartholet claims exist? (Part III) To what extent does the available evidence support Bartholet’s contention that abuses like child buying, kidnapping, and coercion in international adoptions are over-estimated? (Part IV). And finally, is Bartholet correct when she argues that issues of culture, heritage, identity, and integrity of process should, in effect, be relegated to the background of any analysis of international adoption? (Part V). We contend that the available evidence, while clearly incomplete, offers virtually no support for any of Bartholet’s contentions.
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