Wednesday, October 28, 2009

Cash, Consent, and the Hague Convention

It’s been known for a while (click here to see what Brian Stuy says on the issue) that some Chinese orphanages have “incentive programs” – programs where cash payments are made to birth parents who bring a child to the orphanage or to an intermediary who pays cash to the birth parents and then brings the child to the orphanage and receives a payment from the orphanage. As one China-born adoptive parent (who disagrees pretty violently with everything that Brian Stuy says!) said recently in reference to "the age old debate about finders fees for orphans," the practice has been in China since way before there was any IA program. There may be disagreement over how many orphanages are involved in incentive programs, but little doubt that orphanages are.

Some argue that these payments are a good thing – it prevents babies from being abandoned in unsafe conditions where they may become ill or die before they are found. They further argue that it is the One Child Policy that is inducing birth parents to give the child to the orphanage or an intermediary, not the cash payments. Some argue that it is reasonable for the orphanage to pay cash to finders to compensate them for their inconvenience and expense in bringing the child in.

But others argue that these cash payments to birth parents may be inducing them to relinquish children they might have otherwise raised – not all children born in violation of the One Child Policy are abandoned or relinquished, and what looks like very little money to us could in fact induce relinquishment in China. And, they argue, payments to intermediaries encourages those intermediaries to acquire children in improper and/or illegal ways. We’ve heard of finders for orphanages seeking out babies by contacting hospitals, doctors, midwives, and by seeking out pregnant women by word of mouth. As intermediaries systematically make it known that they are in the market for children, the quid pro quo aspects of intentionally paying money for children seems unmistakable. And there is always the concern that children will be kidnapped and turned over to an orphanage in exchange for a finder’s fee.

Since there are differing opinions, and offering my opinion wouldn't further the debate in any way, I want to focus on something I do know a little about -- the requirements of the Hague Convention on Intercountry Adoption that might be relevant here. I've done some research, so to the extent that legal interpretations are "opinions," mine is an informed opinion!

Article 8 provides that sending and receiving countries shall take all appropriate measures to prevent improper financial or other gain in connection with an adoption and to deter all practices contrary to the objects of the Convention. One of the objects of the Convention, according to Article 1 is to ensure that safeguards are respected to prevent the abduction, the sale of, or traffic in children.

In addition to that kind of fluff language, the Convention requires specific safeguards. Article 4 provides that before a child can be placed for international adoption, the sending country must:

a) have established that the child is adoptable;


c) have ensured that

(1) the persons, institutions and authorities whose consent is necessary for adoption, have been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin,

(2) such persons, institutions and authorities have given their consent freely, in the required legal form, and expressed or evidenced in writing,

(3) the consents have not been induced by payment or compensation of any kind.

First of all, the sending country has to make sure the child is adoptable. In China, this has been done by showing that the child was abandoned and the birth parents were searched for and not found. This wouldn’t be all that different from how it would work in the U.S. for an abandoned baby – a birth parent’s parental rights can be terminated on the grounds of abandonment, freeing a child for adoption.

But with the “incentive program” orphanages, abandonment isn’t what’s happening. The child was not abandoned at all – either the child was brought to the orphanage by the birth family or was given to an intermediary with the understanding that the intermediary would take the child to care for it or to take it to the orphanage. These are not acts of abandonment. In the U.S., if a person were to leave their child with a responsible adult, it wouldn’t be abandonment. Neither would relinquishing a child for adoption be abandonment. So it would seem China needs to prove the child is adoptable for some reason other than abandonment, and that reason would be a consented-to relinquishment.

The Hague Convention has some pretty stringent requirements for a consented-to relinquishment. The birth parents – “persons whose consent is necessary for an adoption” – have to be counseled appropriately and have to be duly informed of the effects of their consent, including the fact that their consent terminates their legal status as parents. Those consents have to be freely given, and must be in writing. And the consents cannot have been induced by payment or compensation of any kind.

The Hague Convention makes it the sending country’s duty to prove these points before a child can be adopted internationally. The Central Authority overseeing adoptions must complete at least a brief investigation into the motives of those placing the child up for adoption to satisfy this requirement. Thus, China would need to investigate each case where money changed hands to make sure that the child would have been abandoned or turned over to the orphanage even if money had not changed hands. If there is evidence of the birth parents receiving money to the extent that it may affect the decision to give consent, the Convention is violated if that adoption is approved.

If children are truly being abandoned, as we once thought was the exclusive way to place a child for adoption in China, these issues with the Hague Convention are not present. That’s probably why China maintains the fiction that this is what’s happening, going to the extent of making up abandonment stories for children in the orphanage (falsifying records is another violation of the Hague Convention, of course).

But China also seems to be moving toward another system for placing children for adoption, a typical system of birth parent relinquishment. But that system falls woefully short of the requirements of the Convention. Birth parents are not likely to be appropriately counseled by the intermediaries looking to find babies for the orphanages. We have no evidence that birth parents coming to the orphanage – or being approached by intermediaries – are consenting IN WRITING to the relinquishment and adoption. And we know that money is changing hands, and the burden is on the sending country to investigate and prove that the money is not what induced the consent. China has done no investigations, because it continues to claim that children in the orphanages are there because their birth parents abandoned them.

I think there is little doubt that China’s use of incentive programs converts the method of placement from abandonment to relinquishment. And those relinquishments are made in circumstances that clearly violate the Hague Convention on a number of fronts. They are not in writing, no counseling has been given to give assurance that relinquishments are voluntary, and there's no one investigating whether relinquishments are induced by money.

On the plus side, if families are already coming to orphanages to relinquish a child, it wouldn't take that much retooling for China to develop a relinquishment-based system that would benefit children in making the possibility of birth parent information and contact possible. First step, get the money out of it.


travelmom and more said...

The one issue with this line of reasoning is that I think local orphanages are creating incentive programs not CCAA, which to the best of my understanding does not tolerate incentives. Furthermore, I believe it is illegal to give a child up for adoption in China so the legal system would have to address the contradictions in their desire to limit population while allowing relinquishments of children for adoption.

malinda said...


The Hague Convention makes the Central Authority (CCAA) responsible for the actions of the SWIs in recruiting children for adoption. Also, Brian Stuy has offered some information that the CCAA is now allowing incentive programs so long as the SWIs don't pay more than 1000 yuan.

Yes, Chinese law doesn't allow for voluntary relinquishment on the face of it, but they have created a de facto system where there are incentive programs. I noticed it also in the article about Family Planning officials in Guizhou taking children who were over-quota -- a grandparent said he was asked to put his thumbprint on a piece of paper giving up his rights in the child. Sounds like a relinquishment to me!

Michele R H said...

According to Dr. Jane Liedtke parents in China can legally "sign-over" a child to state custody but this is recorded as their one child and they will not be given permission to have another. Since most children abandoned are not the first children born, families resort to abandonment because they can't legally sign over a child that should not have been born in the first place.

malinda said...

Michele --

That's right, but it's also a little more complicated. They can sign over a child to Family Planning, and it has the consequence you've named. But signing over the child to an orphanage under an incentive program doesn't usually get cmmunicated to Family Planning.

Signing over to Family Planning also means you can't try for a boy if your second (relinquished) child is a girl. Another reason to sign over to the orphanage instead of Family Planning.