Saturday, December 26, 2009

Non-Hague Countries, Adoption & Child Trafficking

Last month, Australia's Attorney General expressed concern that the Ethiopia-Australia adoption program did not comply with the Hague Convention on Intercountry Adoption:
DESPERATE families seeking to adopt children from overseas have been dealt a blow after the Attorney-General's Department halted Australia's largest international adoption program.

Frustrated adoption groups claim steps taken by the Rudd Government to free up adoption processes have instead buried it under another layer of red tape.

Australia has an average 300 international adoptions a year, the largest number, about 40, from Ethiopia. But the program has been suspended amid fears a request for payments to help needy children left behind breaks international laws on child trafficking.

A spokesman for the Attorney-General's Department said: "The apparent link between the provision of financial assistance and the referral of children for adoption
is inconsistent with our understanding of our obligations under the Hague Convention."
It's an interesting point, because what Australia is concerned about, it seems, is NOT individual PAPs being asked to donate by orphanages (though that would be a problem under the Hague Convention if the adoption was CONDITIONED on the donation), or the recent reports out of Ethiopia of adoption corruption, but that the Ethiopian government has requested that the Australian government provide community development aid as a condition to continue adoption placements to Australia:

A key reason for the suspension is a new requirement of the Ethiopian Government that the program enter into a formal agreement to provide community development assistance. The Australian program has previously been exempt from the requirement to provide financial/material assistance because of its unique Government-to-Government arrangement. We have recently been advised that this exemption can no longer continue.

The Hague Convention is full of language designed at avoiding "the sale of, or traffic in children." Money in exchange for consent to adopt is violative of the Convention. It further says in resounding terms, "No one shall derive improper financial or other gain from an activity related to an intercountry adoption." (BTW, proper financial gain includes payment of reasonable expenses for the care of children prior to adoption, and reasonable payment for adoption services.) So as between two countries who have signed the Hague Convention, I'd think the Ethiopian proposal quite problematic.

But Ethiopia is not a signatory to the Hague Convention, so there is no requirement that it follow the convention. And the convention itself creates procedures to be followed BETWEEN convention states, not between a convention state like Australia or the U.S. and a non-convention state like Ethiopia. One could argue that payments to Ethiopia from Australia or the U.S., even when made in order to make children available for adoption to these countries, would not violate the Hague Convention on intercountry adoption. And though the Convention of the Rights of the Child has similar language to the Hague concerning financial gain in adoption, the U.S. (and the good folks of Somalia -- good company, huh?) has not signed the CRC.

So when Australia or the U.S. deal with adoptions from non-Hague countries, is there any requirement to avoid child trafficking, the sale of children? It sounds like other countries which do adoptions from Ethiopia have been paying development aid as a condition of allowing adoptions, since the Australian reporting says Australia has been getting an exemption from the development aid for adoption scheme. So while these other countries may not be violating the Hague Convention, is there anything else to be concerned with?

The U.S. signed the U.N. Protocol to Prevent, Suppress & Punish Trafficking in Persons, Especially Women & Children in 2005, and it binds receiving countries as well as sending countries to cooperate to prevent trafficking. "Trafficking in persons" includes “the recruitment, transportation, transfer, harbouring or receipt of persons, by means of . . . the giving or receiving of payments or benefits to achieve the consent of a person having control over another person." But that treaty deals mostly with cooperation in criminalization of transnational trafficking. Beyond that, there's language about each country agreeing to strengthen internal policies and legislation to combat trafficking. But the language seems to require the U.S. to avoid complicity in trafficking of children, doesn't it? And giving development aid to the Ethiopian government "to achieve the consent" of Ethiopia, which clearly has "control over" children in its orphanages, clearly fits the definition of "trafficking in persons."

But the trafficking protocol prevents buying and selling of persons for purposes of exploitation: "Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs." Hmmm, interesting, isn't it, that buying and selling children, on its own, is not trafficking -- only buying and selling for purposes of exploitation. And there's disagreement, of course, about whether buying and selling children for adoption is exploitation.

An Ethiopian website reports on the decision of Australia to suspend the adoption program, and quotes one person as calling the Ethiopian government's cash for kids program "modern-day slavery," and some have argued that adoption in general is like slavery. I don't think, though, that governments, including the U.S., would be convinced that adoption = slavery = exploitation. I think it would be easier to make the argument that conditioning adoption on the provision of money that is not related to the expenses of adoption -- whether the condition is imposed by individuals or institutions or governments -- is child trafficking and exploitative.

Australia's other treaty obligations (it is a signatory to the Convention on the Rights of the Child and the anti-trafficking Protocol) may justify its stance on Ethiopia's request for aid as a condition to allow adoptions to Australia, but I'm not sure that the Hague Convention does. And that strikes me as a fault with the Hague Convention, not with Australia's position that conditioning an adoption program on governmental payments is problematic. Perhaps it is time to take another step forward in ending adoption corruption and require Hague countries to only do adoptions with other Hague countries.

1 comment:

theberberediaries said...

This is so complex, thanks for the information about the treaties. Australia had what was seen by many as a model for international adoption due to its high level of government involvement and lack of the for-profit (well, they don't see themselves that way but they do pretty much function as such) agencies that we have in the US. I suspect that the US can distance themselves a bit further from this "developmental aid" because it's being provided by non-government entities, adoption agencies, while in Australia the money would need to come directly from the government. There's no good solution to the adoption + aid dilemma.