International Adoption Laws: a Comparative Analysis
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International Adoption Law: A Comparative Analysis A1NDREW C. BROWN* I. Introduction Over the past decade, the number of international adoptions to the United States has increased, reaching a peak of 22,884 adoptions in 2004.' International adoption has also become increasingly visible over the years due to the trend amongst high-profile celebri- ties of adopting children from Third World countries. 2 Although the coverage of these celebrity adoptions makes the process of international adoption seem relatively quick and easy, this is certainly not the case for either the celebrity or the majority of "regular" families seeking to adopt from other countries. Families who wish to adopt a child from another country face a number of unique legal challenges that are often in a state of flux due to frequent (and often unpredictable) changes in internal governance and relation- ships between nations. Foremost among the challenges faced by prospective adoptive families is navigating the various laws with which they must comply. In order for an American family to adopt a child from another country, that family must comply with three sets of laws: (1) U.S. Federal law, (2) the laws of the child's home country, and (3) the laws of the state in which the family resides. 3 Given the wide range of state adoption laws, this paper will focus solely on U.S. federal law and international law, but it should be kept in mind that the legal status of any international adoption is also dependent upon state law.4 U.S. laws * Andrew C. Brown was selected by the International Law Review Association of the SMU Dedman School of Law as the recipient of the 2008-2009 Quill & Torch Award for outstanding student scholarship in emerging topics in international law. Mr. Brown was born in Macon, Georgia, holds a Bachelor of Arts degree in Political Science from Baylor University, and is a 2010 J.D. candidate at the SMU Dedman School of Law. He would like to thank his cousin and her husband whose experience with international adoption inspired this article. 1. U.S. Dep't of State, Total Adoptions to the United States, http://adoption.state.gov/news/to- tal.chart.htnl (last visited Jan. 3, 2009). 2. Vicki Peterson, InternationalAdoptions: Celebrities vs. Real People, WASH. PosT, Oct. 26, 2006, available at http://www.washingtonpost.comn/wp-dyn/content/discussion/2006/10/26/DI2006102600640.htrnl. 3. U.S. Dep't of State, How to Adopt, http://adoption.state.gov/about/how.htrnl (last visited Dec. 28, 2009). 4. Any individual interested in adopting internationally should first determine whether or not they are eligible to adopt under the laws of the state in which they reside. For example, certain states, like California, 1338 THE INTERNATIONAL LAWYER regarding international adoption are now subject to "The Hague Convention on the Pro- tection of Children and Co-operation in Respect of Intercountry Adoption (Hague Adop- tion Convention), which entered into force in the United States in April 2008.5 I will begin by examining the provisions of this landmark international agreement and its effects on the laws of international adoptions. Then, by way of illustration, I will compare and contrast the adoption laws of China, a country that is party to The Hague Adoption Con- vention, and Russia, a country that is not party to the Convention.6 Both China and Russia were in the top five for countries U.S. families adopted from during Fiscal Year 2008. 7 This comparison will show that, although the Hague Adoption Convention is a necessary tool by which the international community can provide for the well-being of adopted children and prevent many abuses that have plagued international adoptions, it still has some significant weaknesses that must be worked out if it is to truly be effective. II. The Hague Adoption Convention A. HISTORY OF THE CONVENTION The Hague Adoption Convention was concluded on May 29, 1993. The work on the agreement, however, had been ongoing since it was first proposed by the Sixteenth Ses- sion of the Hague Conference on Private International Law (HCCH) in 1988.8 It was at the conclusion of this session of the conference, which meets every four years, when the members recommended that the agenda for the seventeenth session should include "the preparation of a convention on the adoption of children coming from abroad." 9 The Permanent Bureau of the HCCH noted that the "dramatic increase in international adop- tions which [sic] had occurred in many countries since the late 1960s" had resulted in a "worldwide phenomenon" of the extensive migration of children over long distances and between vastly different societies and cultures.'0 This increased migration of children brought to the forefront many different and challenging legal issues that most countries were ill-equipped to handle at the time. Thus, it was recommended that the HCCH make the issue of international adoptions a priority for the seventeenth session in order to en- sure the protection of the children being adopted. In order to address the various issues raised by international adoptions, the HCCH focused on four main requirements. First, the HCCH recognized the "need for the estab- permit adoptions by same-sex couples while others, like Utah, remain resistant to adoptions by same-sex couples. Thus, the legal status of an international adoption by a same-sex couple that resides in a state that forbids such adoptions may be challenged. See, Lambda Legal, In Your State, http://www.lambdalegal.org/ our-work/states (last visited Dec. 28, 2009). 5. U.S. Dep't of State, Hague Convention Overview, http://adoption.state.gov/hague/overview.html (last visited Nov. 16, 2008). 6. U.S. Dep't of State, Convention Countries, http://adoption.state.gov/hague/overview/countries.hnl (last visited Jan. 12, 2009). 7. Total Adoptions to the United States, supra note 1. 8. Hans Van Loon, Hague Convention of 29 May 1993 on Protection of Children and Cooperation in Respect of Intercountry Adoption, TuE INTL. J. OF CHILDREN'S RIGHTS 3: 463-468 (1995). 9. Explanatory Report on the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1 57, 1994, available at http://hcch.e-vision.nl/upload/expl33e.pdf [hereinafter Ex- planatory Report]. 10. Id. VOL. 43, NO. 3 INTERNATIONAL ADOPTION LAW 1339 lishment of legally binding standards which [sic] should be observed in connection with intercountry adoption.""i Such a common set of standards would aid countries in answer- ing vital questions such as how to identify situations in which an international adoption is appropriate, and what law should govern the arrangement. 12 The second requirement identified by the HCCH was the need to establish a system of supervision to ensure that the standards of the Convention were followed and that would be able to prevent adop- tions that may not be in the best interest of the child or that were secured through fraud or bribery. 13 This requirement recognizes the ongoing abuse of "child trafficking" in connection with international adoptions. According to the United Nations Children's Fund (UNICEF), nearly 1.2 million children are trafficked each year for various pur- poses. 14 In addition to being trafficked for labor or sexual exploitation, many of these children are being "sold" outside of official adoption channels. 15 The third and fourth requirements recognize the need for the establishment of effective channels of communi- cation and the encouragement of cooperation between countries of origin and destination 16 in international adoptions. Under the Hague Adoption Convention, each "Contracting State" (that is, the coun- tries party to an adoption) is required to appoint a "Central Authority" to oversee the process and determine that the provisions of the Convention are followed. 17 In the United States, the Department of State is the Central Authority.ls As such, the State Department is charged with a number of tasks, which include working with U.S. embas- sies and host governments on issues relating to adoptions, providing timely information to prospective adoptive families, and overseeing the international adoption process. 19 Al- though the need for such a supervisory authority is apparent, the effectiveness of the su- pervision is less clear given that the majority of the illicit sales of children occur behind the "faqade of legitimate adoptions." 20 Thus, while the Hague Adoption Convention may cut down on the number of illegal baby sales that occur in Convention countries, such 11. Id. 12. Id. 13. Id. 14. UNICEF, Child Protection from Violence, Exploitation, and Abuse: Child Trafficking, http:// www.unicef.org/protection/index-exploitation.html (last visited Jan. 25, 2008). 15. Greece, which is not a signatory to the Hague Adoption Convention, is becoming increasingly popular as a source of private adoptions for people who are unable to adopt children through official channels. Kit- santonis and Brunwasser explain that the lack of regulations in Greece concerning private adoptions has allowed an illicit adoption network to develop in that country where prospective adoptive parents can simply purchase children from their birth parents. According to Greek authorities, the most desirable babies are fetching prices upwards of $30,000. The sales often occur through brokers who arrange the deals and take a significant cut of the price paid by the adoptive parents. Since these transactions are, by their nature, illegal, the brokers often cheat the birth parents out of their portion of the selling price. Perhaps more disturbing are the reports of mothers who are forced to sell their children in order to satisfy previously owed debts. See Niki Kitsantonis & Matthew Brunwasser, Baby Trafficking is Thriving in Greece, INT'L HERALD TmiBuNE, Dec.