International Adoption Serves Children’s Best Interests and Most Basic Human Rights
Human beings need parental care for a prolonged period to survive physically and to develop mentally and emotionally. Even the best institutions fail to provide the care that infants and young children need (Bartholet, 2007a, p. 346 and n. 25, pp. 347–348).
International law makes central the child’s human right to grow up in a family. The CRC preamble describes the family as ‘the natural environment for the growth and well-being of … children’. The CRC and the Hague Convention on Intercountry Adoption include in their preambles that ‘the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding’.
The CRC also requires that member states give children who cannot be raised by their original parents adequate substitute care, and protect children against the conditions characteristic of institutional care. It says that an unparented child ‘shall be entitled to special protection and assistance’, ‘alternative care’ (Article 20) and ‘such protection and care as is necessary for his or her well-being’ (Article 3). It says that ‘every child has the inherent right to life’ and to ‘survival and development’ (Article 6). It grants children affirmative rights to health, a standard of living adequate for appropriate development, and education (Articles 24, 27 and 28). It requires states to ‘protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation’ (Article 19). It provides that ‘no child shall be subjected to torture or other cruel, inhuman or degrading treatment’, or ‘deprived of his or her liberty unlawfully or arbitrarily’ (Article 37).
Accordingly, core human rights principles give children the right to true family care. Unparented children have a right to be placed in international adoption if that is where true families are available. They have a right to be liberated from the conditions characterizing orphanages, street life and most foster care (Bartholet, 2007b; Dillon, 2003; Wardle, 2005, pp. 353–360).
Courts have recognized these principles in decisions involving international adoption. The Supreme Court of India found a right to international adoption despite the absence of statutory recognition of such adoption, relying on international human rights law and related provisions in the Indian Constitution. It reasoned:
[C]hildren need special protection because of their tender age and physique, mental immaturity and incapacity … [T]hat is why there is a growing realization in every part of the globe that children must be brought up … under the tender care and attention of parents.
Every child has a right to love and be loved and to grow up in an atmosphere of love and affection and of moral and material security and this is possible only if the child is brought up in a family …
[I]f for any reason it is not possible for the biological parents or other near relative to look after the child … the next best alternative would be to find adoptive parents.
[I]f it is not possible to provide them in India decent family life where they can grow up under the loving care and attention of parents … there is no reason why such children should not be … given in adoption to foreign parents (Lakshmi Kant Pandey v. Union of India, 1984, pp. 474, 476).
The Malawi High Court, in upholding Madonna’s first adoption despite the residence requirement read by some to forbid international adoption, also relied on international human rights law, both the CRC and the African Charter on the Rights and Welfare of the Children. It granted her adoption of David Banda based on finding that Madonna offered the true home that was unavailable in Malawi:
[A] lot of children are in dire situation of material deprivation characterized by poverty, lack of access to essential nutrition, lack of access to education, lack of access to proper sanitation and lack of access to adequate health care. This is the inescapable reality in Malawi as in most third world countries. And to argue that we will soon find adequate solutions for all our deprived children is to assert a shameless and insolent lie.
The infant in the instant case was among our many materially deprived children whose only remaining parent was forced, because of his circumstances, to place him at an orphanage … In seeking to adopt … petitioners are not therefore in the way of any permanent domestic solution for the infant (Adoption case No. 2, 2008, p. 16).
The Malawi Supreme Court of Appeal granting Madonna’s second adoption, involving ‘Mercy’ James, relied similarly on human rights law:
We do not think that … inter country adoption is a last resort alternative … [T]here are only two options. She can either stay in Kondanani Orphanage and have no family life at all or she can be adopted by the Appellant and grow in a family … In our Judgment the welfare of infant CJ will be better taken care of by having her adopted by the foreign parent rather than for her to grow up in an orphanage where she will have no family life, no love and affection of parents (in Re: CJ A Female Infant, 2009, pp. 24–25).
The Constitutional Court of South Africa stated, in approving an international adoption, that the CRC ‘seems to accept the notion that “[e]nsuring that a child grows up in a loving, permanent home is the ultimate form of care a country can bestow upon a child”, even if that result is achieved through an inter-country adoption’ (A. D. & Another v. D. W. & Others, 2008, p. 200).
International adoption is about placing tens of thousands of infants and young children who need homes with people who want to provide them. There are many millions of children worldwide who need homes because they have been orphaned, abandoned or removed. Almost all are destined to live either in orphanages or on the streets if they are not adopted internationally. Estimates indicate that there are 143 million orphaned children (Joint UN Programme, 2004, p. 7), over 8 million living in orphanages (Secretary-General, 2006, p. 16) and some 100 million street children with no available caregivers (Bartholet, 2007b, pp. 182–183; Mitchell, 2009).
UNICEF and other critics of international adoption say that only a small percentage of orphanage children are true orphans, with both parents dead, and only these should be eligible for adoption. But those whose parents are not dead have either been removed for maltreatment or abandoned. The overwhelming majority have no meaningful relationship with their parents, and no likelihood of ever returning home.
UNICEF and others also say that most orphanage children are older and suffer disabilities, whereas prospective adopters prefer healthy infants. But many infants are placed in orphanages. It is restrictive adoption policies and destructive orphanage conditions that produce so many older children with disabilities. And while prospective adopters generally prefer healthy infants, many will adopt older children with disabilities.
At its peak in 2004, international adoption placed some 45,000 children. This is a small number by comparison to those in need. But the lives of those placed are radically transformed for the better. And the number could easily be multiplied many times if we developed policies facilitating rather than restricting placement. Surveys show significant percentages of adults in economically privileged countries interested in adopting. Some 9.9 million of ‘ever married’ women in the US alone have considered adoption, and only 1 per cent of these now adopt in a given year (Wardle, 2005, pp. 345–346).
The extreme contrast between the homes international adoption offers and orphanage or street life should make unnecessary any debate as to what best serves children. Most orphanages are terrible places, where children learn not to cry because crying brings no response. A recent article describes a typical institution for children under three in Bulgaria:
It is the smell that [first] assaults you – filthy nappies, unwashed babies, rotting flesh. Then you are hit by the silence, an eerie, unnatural silence, the silence of babies who have given up hope of ever being consoled, cuddled or comforted. It is the dreadful quiet of starving, neglected, unloved children waiting to die … The children in this particular wing have no human contact. They are fed lying on their backs, and have their nappies changed only when there happens to be a supply of new ones. Not one single word is uttered to them, so none of them is able to talk. This is how they live, and this is how they die (Monckton, 2009).
Studies document how destructive even the better orphanages are, producing lifelong damage even for many of those eventually adopted. Developmental psychologists explain how essential nurturing human interaction is for infants to develop normally. The new science of early brain development demonstrates in dramatic color slides how different the brains of children raised for two years in an orphanage look as compared to the brains of children raised with parents (Bartholet, 2007a, pp. 346–348). The World Health Organization recommends that even ‘when high-quality institutions are used as an emergency measure … the length of stay should be no more than 3 months’ (Browne et al., 2004, p. 11). Street children often die early, and those who live suffer maltreatment, disease, exploitation for sex, labor and child soldiering, and trafficking for these purposes (Wardle, 2005, pp. 325–331).
International adoption provides the only hope for a loving and nurturing home for most children in need. And studies show that international adoption works well for children. Those placed in early infancy do essentially as well as non-adopted children. Those placed after suffering terrible damage from wartime trauma or orphanage life are helped to overcome deficits, with many able to live normal lives.
The expenses for international adoption are paid by adoptive parents. Neither sending nor receiving countries need divert significant resources to finance such adoption. Sending countries are also relieved of the costs of institutionalization for all those placed, freeing up resources to serve the needs of others. Moreover, international adoption produces significant additional resources for poor countries and their people. Adoptive parents pay fees to agencies and orphanages, some of which go to improve orphanage conditions. China charges an orphanage fee for each adoption of $3,000–5,000. Given the 7,900 children adopted into the US from China in 2005, and assuming the minimum $3,000 fee, this meant $23,700,000 to improve orphanage conditions (Bartholet, 2007b, pp. 184–185).
International adoption also triggers significant voluntary contributions by individuals and agencies to improve conditions in sending countries. And the exposure international adoption brings creates new consciousness about these countries’ problems, and thus the potential for a wide range of helpful action by individuals and governments (Bartholet, 2007a, pp. 350–352).
One example among thousands of the productive interaction between international adoption and broader reform is the work of Dr Jane Aronson, whose understanding of the problems suffered by orphanage children began with her work as a pediatrician for international adoptive families. Dr Aronson has worked on her own and with adoptive parent Angelina Jolie to develop and fund organizations that serve the needs of more than 10,000 children worldwide, building foster care and improving orphanage conditions. Her ‘Orphan Rangers’ provides visits to orphanage children who would otherwise experience no loving human contact (Worldwide Orphans Foundation, 2009).
The Malawi Supreme Court that approved Madonna’s second adoption recognized the interaction between her two adoptions and the many millions of dollars she had donated to improve conditions for other poor children in Malawi. It noted, in concluding that she satisfied Malawi’s residence requirement:
Appellant is not a mere sojourner in this country but has a targeted long term presence aimed at ameliorating the lives of more disadvantaged children in Malawi … [S]he is not here only to adopt infant CJ but to also implement her long term ideas of investing in the improvement of more children’s lives (in Re: CJ A Female Infant, 2009, p. 23).
Adoption Abuses Do Not Justify Limiting International Adoption
Adoption abuses exist, as abuses exist in every area. But there is no persuasive evidence that adoption abuses are extensive.
Nor is there reason to think they would be extensive. Critics claim that adoption facilitators wrongfully take babies by paying money to induce birth parents to surrender, and even by kidnapping. The sad truth is that even if some are guilty of such crimes – and these are crimes everywhere – there is no real need to buy or kidnap children, since there are so many millions of desperate, impoverished birth parents incapable of caring for their children, and so many millions of orphaned and abandoned children. Law reform designed to facilitate lawful adoption would do much to reduce such abuses as do exist. The Hague Conference Report providing the rationale for the Hague Convention on Intercountry Adoption made this very point, finding that difficulties in accomplishing adoption created pressure for corrupt practices that would not exist in more effective systems facilitating adoption (Hague Conference on Private International Law, 1990, p. 188).
Better enforcement of laws prohibiting adoption abuses is the obvious additional answer. When parents violate laws prohibiting child maltreatment, we do not shut down the system that sends newborns home with their parents. We call for better enforcement of laws prohibiting maltreatment.
International adoption critics argue that it is naive to think adoption laws can be enforced in certain countries, given corruption and limited governance capacities. But even if adoption abuses occur on more than an occasional basis, and even if eliminating them would be hard, shutting down international adoption is wrong. Zero tolerance for adoption abuses may sound good but it will hurt children. The evils involved in such abuses must be weighed against the far more significant evils involved in denying children homes.
The situation in Guatemala is illustrative. Claims that adoption intermediaries were paying birth mothers helped shut down international adoption. But there is no good evidence that these mothers were induced by money to surrender children they would otherwise have kept. Given their desperate poverty and limited access to birth control, virtually all mothers given payments would likely have surrendered regardless. There is no terrible evil in a poor birth parent who would in any event surrender a child being given funds that will help her survive. Shutting down international adoption programs in Guatemala deprives thousands of children per year of the chance to grow up in nurturing homes. That is an evil that should count for more.
Baby buying is generally not treated as a serious evil in non-adoption contexts. Commercial surrogacy is the institution in which true baby buying takes place systematically. Surrogacy contracts specify that the woman who provides pregnancy, childbirth services and often her egg will receive money in exchange for turning over the baby, and terminating her parental rights. Commercial surrogacy is flourishing in the US and many other countries, and international commercial surrogacy is spreading rapidly, as prospective parents turn to poor countries for inexpensive surrogacy services. Some countries that have severely limited international adoption are now engaged in a rapidly expanding international surrogacy business. Private lawyers who used to arrange international adoption from Guatemala are now earning a living arranging for Guatemalan women to get pregnant in order to surrender for a fee their babies and their parenting rights. India, which has significantly restricted international adoption, including by requiring that 50 per cent of all adoptions be in-country (Dohle, 2008, p. 131), is on the verge of regularizing a booming international surrogacy business through facilitating legislation (Gentleman, 2008; Smerdon, 2008, p. 15). Russia, which has also significantly restricted international adoption, is enthusiastically embracing international surrogacy (Lee, 2009, p. 284). UNICEF and other critics of alleged baby buying in the adoption context are interestingly silent about international surrogacy.
Concepts of Nationalism and Heritage Do Not Justify Limiting International Adoption
International adoption critics treat children as necessarily ‘belonging’ to their countries of birth. They defer to national governments as having important rights at stake, and accord overwhelming significance to the often arbitrary lines separating countries. This translates into policy preferences for virtually all in-country options as compared to out-of-country adoption, and into mandatory holding periods which delay and often entirely deny such adoption.
But children’s fundamental human rights to grow up in a nurturing family should trump nation-state rights to hold on to children. Moreover, keeping unparented children in their countries of origin does nothing to actually strengthen the economic and political situation of those countries. It is simply a symbolic way for the powerless to stand up to the powerful, for countries formerly victimized by colonialism to make an anti-colonialist statement. And it exploits the least powerful of all, the children of the poorest groups in these countries. Ironically these are often the children of the indigenous groups that were the primary victims of colonialism, while the rulers who decide to hold on to these children are often the descendants of the colonial invaders.
International adoption critics say they promote in-country solutions because this serves children’s heritage rights. But this is retrograde thinking which ill-serves children’s real needs. Children are not defined in some essentialist way by the particular spot where they were born. Science provides no basis for believing that children are better off if raised in their community of origin (Bartholet, 2007a, pp. 360–361). Nor does common sense. Was Barack Obama, the biological son of a father born in Kenya and a mother born in Kansas, deprived of his heritage by being raised in Hawaii and Indonesia? Was he deprived or enriched by virtue of his complex national, racial and ethnic heritage? His testimony, as revealed in books and speeches, indicates that he feels enriched and empowered to act more effectively.*
We live in a world increasingly defined by globalization, with adults eager to cross national boundaries for economic and other opportunities. Some 1.6 million per year immigrate to the US alone, and immigrants constitute 12.5 per cent of the US population.
In this world it would be laughable to argue that adults should be prevented from leaving their country of birth so they could enjoy their heritage rights. It would be thought outrageous for nations to hold on to adults behind walled boundaries because they constitute ‘precious resources’. Heritage and state sovereignty claims can only be made in the international adoption context because children are involved, and children are peculiarly incapable of protesting. Truly honoring children’s rights would require abandoning such talk, treating children as full members of the global community and responding to their most fundamental needs.
It is understandable that UNICEF and others promote nation-state rights to hold on to children, and that many countries demand these rights. UNICEF was created in a post-colonial era that placed high value on nationalism. Countries emerging from colonialist oppression can easily see adoptions by foreigners as a modern version of colonialist exploitation.
Also, international law contains ‘subsidiarity’ provisions which accord states sovereignty rights over their human child resources. The CRC and the Hague Convention allow countries to deny adoption altogether. The CRC prefers in-country options that include foster and other ‘suitable’ care to out-of-country adoption (Article 21(B)). The Hague Convention prefers in-country to out-of-country adoption (Preamble; Article 4).
Interestingly the first major international recognition of the rights of the child showed no such deference to state sovereignty, but made child rights truly primary. The 1924 Declaration of the Rights of the Child provided simply:
[M]en and women of all nations, recognizing that mankind owes to the child the best that it has to give, declare and accept it as their duty that, beyond and above all considerations of race, nationality or creed:
I. The Child must be given the means requisite for its normal development, both materially and spiritually;
II. The child that is hungry must be fed; the child that is sick must be helped; … and the orphan and the waif must be sheltered and succoured;
III. The child must be the first to receive relief in times of distress;
The CRC and Hague Convention subsidiarity provisions provide the primary basis for arguments that anti-international adoption positions are consistent with children’s human rights. But these subsidiarity provisions are inconsistent with the core principles endorsed in these same Conventions and elsewhere in human rights law, principles making the child’s best interest primary and recognizing the child’s right to grow up in a nurturing family as fundamental.
Courts in several international adoption cases have confronted this inconsistency, and concluded that the best interests principle and the child’s right to family trump the subsidiarity provisions. Two South African decisions found that regulations prohibiting out-of-country adoption violated international human rights law and the South African Constitution’s children’s rights guarantees (Minister of Welfare and Population Development v. Fitzpatrick and Others, 2000;3A. D. & Another v. D. W. & Others, 2008). They found that ‘the subsidiarity principle itself must be seen as subsidiary’ to the principle making the child’s best interest paramount (A. D. & Another v. D. W. & Others, 2008, p. 204).4
The Malawi decisions approving Madonna’s adoptions similarly found that the best interests principle trumped subsidiarity provisions under international human rights law. In approving Madonna’s second adoption despite Malawi’s residency requirement, the court stated:
Colonialism and colonial outposts in their original format are things of the past. A new international legal order has taken root. Globalization and the global village with all its legal ramifications is now what preoccupies legal minds … Residence … is no longer tied to the notion of permanence … [A] man may have more than one place in which he resides … We do not think that … inter country adoption is a last resort alternative … [B]y her lifestyle [Madonna] is herself a child of the world (in Re: CJ A Female Infant, 2009, pp. 21, 24, 26).
The original understanding of subsidiarity has been perverted by those who use it to oppose international adoption. Subsidiarity is designed to serve individual human rights, not promote state sovereignty. Subsidiarity requires that children be brought up if possible in their first community, their family of origin, because the child’s most fundamental needs are served in a family. If children cannot be brought up in that family, subsidiarity demands they be placed in another family to enjoy that same sense of intimate community (Carozza, 2003, p. 38).
The US has taken important steps to jettison old ideas that children ‘belong’ to their groups of origin. The federal Multiethnic Placement Act5 rejected the idea that black children belonged to the black community, and so should be kept in black foster or adoptive families, in preference to trans-racial placement. The Act vindicates children’s rights to be placed in the earliest available permanent nurturing home, regardless of race. The Adoption and Safe Families Act6 rejected the idea that children belonged to their birth parents regardless of fitness to parent. The Act vindicates children’s rights to be raised in a permanent nurturing home, reducing the priority on family preservation, limiting time in foster care and expediting adoptive placement. There is also increasing support in the US for the idea that children have a constitutional right to nurturing parenting, and thus to adoption when it represents the route to such parenting (Dwyer, 2009; Woodhouse, 2005; in Re John Doe and James Doe, 2008). 7