Monday, November 29, 2010

Intercountry Adoption, Child Laundering & the Hague

At the St. John's adoption conference I attended in October, Professor of Law David Smolin was one of the keynote speakers.  He talked about corruption in international adoption, asking a very important question -- is the problem one of a few bad actors or is there something systemic wrong with international adoption?

He concluded that the problem was systemic, that international adoptions went wrong even when well-intentioned, honest and reputable agencies sought to do ethical international adoptions.  The problem, he said, was money.  What the West sees as small amounts of money -- paid to birth parents, foreign "facilitators," orphanage directors, government officials -- are huge amounts of money in most sending countries.  With rich-nation demand for children and profit-seeking motives in sending countries, international adoption as currently practiced leads to child laundering, which "involves obtaining children illicitly through force, fraud, or financial inducement; providing false paperwork which identifies such illicitly obtained children as legally abandoned or relinquished 'orphans'; and offering or placing these socalled 'orphans' for adoption."

In this important law review article, CHILD LAUNDERING AND THE HAGUE CONVENTION ON INTERCOUNTRY ADOPTION: THE FUTURE AND PAST OF INTERCOUNTRY ADOPTION, Professor Smolin considers whether the Hague Convention can lead to needed reforms in international adoption.  He provides very interesting information about the negotiations leading up to the passage of the treaty; noting that the treaty negotiations happened against the backdrop of a report about adoption corruption by Hans Van Loon, Smolin says the U.S. position seemed less concerned about corruption:
The goals of the United States during the negotiations appeared somewhat distinct from that of Mr. van Loon. Thus, while Peter Pfund, the head delegate for the United States, acknowledged that the Hague Convention was created in the shadow of reports about child trafficking in the intercountry adoption system, these anti-trafficking concerns apparently were far less central to Mr. Pfund and the United States than they had been to Hans van Loon and other nations. Indeed, it seems likely that the United States was focused, as a receiving nation, on maintaining access to children for intercountry adoption, and on protecting the role of private agencies and individuals as independent participants in intercountry adoption.
The Hague Convention that resulted, then, had child laundering as a central concern, but approached it indirectly by leaving it to each country to implement enforcement through its Central Authority (the State Department for the U.S.).  It is not surprising, then, that Smolin concludes, "Seventeen years after the creation of the Hague Convention, the Convention thus far has failed to meet its goals."  He believes it is too early to declare the convention a complete failure, though, because the U.S., one of the largest players in international adoption, has only been a part of the Hague Convention for a very short time.

Professor Smolin suggests to following reforms to allow the Hague Convention to fulfill its promise of ethical international adoption free from corruption:
(1) Strict limitations on fees and donations related to intercountry adoption must be created and vigorously enforced by both sending and receiving countries. All financial aspects of intercountry adoption must be both limited and made fully transparent.

(2) Receiving nations must recognize that they cannot simply outsource their own responsibilities for intercountry adoption to sending nations, due to limited government capacities, lack of political will, and corruption issues in many sending countries. Thus, receiving nations must be willing to seriously investigate the critical steps occurring in sending countries, including especially the processes by which children are obtained and labeled as eligible for intercountry adoption.

* * *

(3) Specific cases of child laundering and child trafficking in the intercountry adoption system must be investigated in a manner analogous to an airplane crash. Such situations are tragic, but create opportunities to learn what has gone wrong, and what can be done to avert future disasters. The current tendency to
essentially privatize such wrongdoing as simply a problem for adoption triad members, without significant government investigation and involvement, must end.

(4) Hague receiving countries, including particularly the United States, must apply equally vigorous regulatory and investigative approaches to adoptions from both Hague and non-Hague countries. While intercountry adoptions from non-Hague countries may still be permissible, receiving countries should be equally vigilant with regard to all intercountry adoptions. Otherwise, even if the Convention eventually proves effective, a two-tier system will develop in which agencies are constantly opening up adoptions in non-Hague countries in order to escape increased safeguards. The current approach by the United States of only applying increased regulatory safeguards to adoptions from Hague countries seems nonsensical and should be discontinued.
This is an important article, and I recommend that you read it in its entirety.  There's a great compilation of corruption scandals affecting nation after nation after nation, consideration of the lessons to be learned from these scandals, helpful historical background on the Hague Convention, and analysis of whether recent declines in international adoption can be blamed on the Hague Convention (Smolin concludes not).

FYI, Professor Smolin in an adoptive parent.  You can read part of his story here.

1 comment:

Reena said...

I understand what Smolin says about the $$ actually paid to the sending country being relatively small by US standards and a lot for that country.

Most people who have not adopted from China do not realize that the the bulk of the cost to adopt from China goes to the adoption agency based in the US and the cost of the trip. Very little of the total amount actually goes to the orphanage or the Chinese government-- albeit still quite a bit by their standards.

We have adopted twice from China-- our first was pre-Hague and the second time after. I didn't really notice much of a change--the child abuse checks in all states of residence was the biggest change for us.

It seems the paperwork has to be reviewed both before the dossier is sent and more paperwork after TA (I think that is how it worked).

The orhpanage donation fee did increase, but I don't believe that had anything to do with the Hague. This fee had not changed since adoptions from China Started back in the 90's (I think).

The Hague requires the Adoption Agencies to lay out the costs for APs-- but there is still a wide array of fees depending on which agency chosen.