THE SALE OF CHILDREN AND ILLEGAL

NIGEL CANTWELL THE SALE OF CHILDREN AND ILLEGAL ADOPTION

COLOPHON © Terre des Hommes Netherlands, 2017

The sale of children and illegal adoption November 2017

Author: Nigel Cantwell Layout: Nettl Den Haag Cover photo: Terre des Hommes

This publication has been made in assignment of Terre des Hommes in cooperation with Defence for Children-ECPAT The Netherlands.

Terre des Hommes Netherlands Zoutmanstraat 42-44, 2518 GS Den Haag The Netherlands Tel: +31 (70) 3105000 E-mail: [email protected] Website: www.tdh.nl

Nigel Cantwell is an international consultant on protection. He first became concerned about illegalities in intercountry adoption in the 1980s when he was working with Defence for Children International (DCI) and coordinating the inputs of the NGO Group on the Convention on the Rights of the Child into the drafting of that treaty. Since then, he has undertaken assessment missions on adoption systems in a wide range of countries and he has authored many articles on the protection of children’s rights in alternative care and adoption.

Terre des Hommes Netherlands prevents child exploitation, removes children from exploitative situations and ensures children can develop in a safe environment. Terre des Hommes works towards a world where all children have a decent life and can grow up to be independent adults. A world in which children are no longer exploited. Terre des Hommes will continue its work until this is accomplished.

1 4.B.ii. Moratoria imposed by receiving countries 36 TABLE OF CONTENTS 4.C. Current conditions for a “perfect storm” in intercountry adoption 39 4.C.i. “Demand” and “supply” 39 4.C.ii. Agencies fighting for survival 40 4.C.iii. Increasing fees and cost 40 ACKNOWLEDGEMENTS 5 4.C.iv. Priority to children with “special needs” 40 ABOUT THE AUTHOR 6 4.C.v. Recourse to non-Hague countries of origin 41 ABBREVIATIONS 7 PART 5: RECOGNISING AND TACKLING THE “ENABLING ENVIRONMENT” 42 PART 1: INTRODUCTION TO THE STUDY 8 FOR ILLEGAL 1.A. Background and purpose of this study 8 5.A. Factors increasing general vulnerability 43 1.B. Methodology 9 5.B. Sale or illegal adoption in armed conflict and natural disasters 45 1.C. Concepts and scope of the study 9 5.C. Enabling factors that exacerbate illegal intercountry adoptions 47 1.C.i. “Adoption”, “illegal adoption” and “illicit practices” 9 5.C.i. Initiatives taken and pressure exerted by actors in 47 1.C.ii. ”Sale of children” and “illegal adoptions” 10 receiving countries 1.C.iii. Scope and focus of the study 11 5.C.ii. Recourse to non-Hague States of origin 49 5.C.iii. Relationships between care facilities and adoption agencies 51 PART 2: THE INTERNATIONAL LEGAL FRAMEWORK 14 5.C.iv. Financial transactions in “legal” intercountry adoptions 52 2.A. International instruments 14 5.C.iv.a. Payments to an official body in the guise of 52 2.A.i. Adoption standards 14 “development” or “humanitarian” aid 2.A.ii. Standards criminalising specific illicit activities 14 5.C.iv.b. Payments to a residential facility for the care 55 which lead to illegal adoptions of the child awaiting adoption or as general 2.B. Key principles governing adoption 16 support for that facility 2.B.i. Best interests of the child as the paramount consideration 16 5.C.iv.c. Payments to professionals involved in the 58 2.B.i.a. Best interests of the child and 17 adoption process, whether by law or by “necessity” 2.B.i.b. Best interests of the child once an illegal adoption 18 5.C.iv.d. Payments that are known to be required but are 58 has been completed not codified 2.B.ii. Subsidiarity principle 19 2.B.iii. Prohibition of improper financial or other gain 20 PART 6: KEY FINDINGS 60 >> Box 1: Methods used to secure illegal adoptions << 22 INTRODUCTION 60 6.A. Financial incentives 60 PART 3: ILLEGAL DOMESTIC ADOPTIONS 24 6.B. Mal-functioning alternative care systems 61 3.A. Background to the systematic sale or illegal domestic adoption of children 24 6.C. Lack of effective control of the adoption process 62 3.B. Illegal domestic adoptions as part of large scale past abuses 25 6.C.i. Prohibition of unsupervised/direct adoptions 62 3.B.i. Ideologically-motivated illegal adoptions 26 (“adoptions individuelles”) 3.B.ii. Moral attitudes leading to illegal adoptions 26 6.C.ii. Inadequate vetting and monitoring of accredited 63 3.B.iii. “Culturally”-motivated illegal adoptions 27 bodies (agencies) 3.B.iv. Responding to large-scale abuses of domestic adoption 28 6.C.iii. Failure to restrict the number of adoption agencies working 65 3.C. Current manifestations of illegal domestic adoption 29 in or with a given State of origin 6.C.iv. Unlimited numbers of ‘approved’ prospective adopters 66 PART 4: ILLEGAL INTERCOUNTRY ADOPTIONS 32 6.C.v. Unrestricted transmission of applications to adopt to sending 68 4.A. Background to the systematic sale or illegal intercountry adoption of children 32 countries 4.B. Moratoria: indications of failure to prevent illegal intercountry adoptions 34 6.C.v.a. Setting quotas: the wrong response 69 4.B.i. Moratoria imposed by countries of origin 34 6.C.vi. Allowing rapid increases in the number of adoptions 69

2 3 from a country of origin 6.C.vii. Allowing methods that avoid the ‘normal’ adoption procedure 70 ACKNOWLEDGEMENTS 6.C.vii.a “Expatriate” adoptions 70 6.C.vii.b. “Relative” adoptions 71 6.C.vii.c. Adoption via legal guardianship 71 6.C.vii.d. Converting kafala guardianship into an adoption 72 This study is based on a research paper at UNICEF Country Offices in Bulgaria, developed at the request of the UN Special Kazakhstan and Kyrgyzstan responded to PART 7: RECOMMENDATIONS TO REDRESS ILLEGAL ADOPTIONS 74 Rapporteur on the Sale of Children, Child requests for information. All their inputs 7.A. Respond to violations 74 Prostitution and Child Pornography, Maud de were highly significant for developing the 7.A.i. Reporting and referral 74 Boer Buquicchio. study. 7.A.ii. Investigations, prosecutions, sanctions and redress for 74 victims Together with Nekane Lavin and Dorian I am especially grateful to the group of 7.A.ii.a. The impact of investigations, prosecutions and 74 Hall, members of her support team at experts who, at the kind invitation of Ton sanctions the Office of the High Commissioner Liefaard, UNICEF Chair of Children’s 7.A.ii.b. Searching for identity, roots and the truth 77 for (OHCHR), she Rights at the University of Leiden, came 7.B. International and transnational cooperation 77 provided much appreciated guidance and together in October 2016 to review the 7.B.i. Global 77 feedback throughout the preparation and preliminary draft and findings: Bernadette 7.B.ii. North-North 78 finalisation of the research paper. Abejo, Claire Achmad, Laura Martinez- 7.B.iii. North-South 78 Mora, Carolina Pimentel, David Smolin 7.B.iv. South-South 79 Among those who made special efforts and Hans van Loon. Their comments and to provide information for the paper suggestions were extremely helpful for PART 8: CONCLUDING REMARKS 80 were Maria Doré, then chairperson of finalising the study. EurAdopt, as well as officials at Central REFERENCES 82 Authorities in Australia, Belgium (French Finally, I have much appreciated the Community), Canada (Québec), Finland, support and interest from Terre des France, Germany, Ireland, Netherlands, Hommes Netherlands, notably through Sweden, Switzerland and the USA. the organisation’s Child Rights Officer, Similarly, Child Protection Specialists Aysel Sabahoglu.

4 5 ABOUT THE AUTHOR ABBREVIATIONS

Nigel Cantwell first became concerned about illegalities in intercountry adoption in AAB Accredited Adoption Body the 1980s when he was working with Defence for Children International (DCI) and CRIA Child Rights Impact Assessment coordinating the inputs of the NGO Group on the Convention on the Rights of the Child CRC Convention on the Rights of into the drafting of that treaty. As of 1990 he represented DCI in the drafting sessions of the Child what would become the 1993 Hague Convention on intercountry adoption. It was in that DCI Defence for Children same year that serious concerns about adoptions from Romania began to be expressed International and, at the request of UNICEF and with a colleague from International Social Service (ISS) DRC Democratic Republic of Congo he undertook a first mission to that country designed to assist the Authorities to respond HCCH Hague Conference on Private to the situation. Since then, and in addition to returning to Romania many times as a International Law consultant on this issue, he has undertaken assessment missions on adoption systems HTG Haitian Gourde in a wide range of countries, at the request of UNICEF and often as a consultant for ISS, ICTJ International Centre for including: Albania, Armenia, Azerbaijan, Ghana, Guatemala, Haiti, India, Kazakhstan, Transitional Justice Kyrgyzstan, Moldova, Sierra Leone and Vietnam, as well as Ukraine for the OSCE. He has ISS International Social Service been UNICEF delegate to all meetings to date of the Special Commission on the practical MFoF Law and Parental Support operation of the 1993 Hague Convention, as well as to expert groups on specific aspects Authority of Sweden of the topic convened by the Hague Conference on Private International Law. He has MIA The Swedish Intercountry authored many articles on the protection of children’s rights in alternative care and Adoptions Authority adoption, including “Adoption and children: a human rights perspective” (2011), an Issue OHCHR Office of the High Paper published by the Council of Europe’s Commissioner for Human Rights. His most Commissioner for Human Rights recent major publication on the question is “The best interests of the child in intercountry OPSC Optional Protocol to the adoption” (2014) published by the UNICEF Office of Research. Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography OSCE Organisation for Security and Co-operation in Europe TDH Terre des Hommes UNICEF United Children’s Fund UNMIL United Nations Mission in Liberia UNRIC United Nations Regional Information Centre

6 7 PART 1: 1.B. METHODOLOGY given issue should consequently not be interpreted as reflecting its relative INTRODUCTION TO THE STUDY The study is essentially grounded in: achievements or weaknesses with regard to that issue or on a wider child protection • an analytical review of problems and plan. issues relating to “illegal adoptions” 1.A. BACKGROUND AND including the problem of the adoption of recorded in existing literature PURPOSE OF THIS children for commercial purposes.” (academic papers, reports from various 1.C. CONCEPTS AND STUDY governmental and non-governmental SCOPE OF THE STUDY When it renewed this mandate in sources and, to a limited extent and Illicit practices in relation to the 2008, the UN Human Rights Council where necessary, media sources); The study responds to the broad adoption of children have been a serious (Resolution 7/13) gave a more precise interpretation of “sale of children” concern for many decades, particularly – orientation for its objectives, viz.: “to • responses to questions posed in short established in the mandate of the Special though not solely – with regard to those continue the analysis of the root causes surveys developed specifically for Rapporteur, as noted in section I above, involving the transfer of children abroad of the sale of children, child prostitution this study and addressed in particular which includes but also goes beyond (intercountry adoption). The 1980s saw and child pornography, addressing all to the Central Authorities of 12 selected acts explicitly covered in the Optional a phenomenal increase in allegations the contributing factors, especially the receiving countries and to European Protocol to the Convention on the Rights of malpractice and the realisation that demand factor” and “to identify and make accredited adoption bodies (AABs, of the Child on the sale of children, child the legal and human rights framework concrete recommendations on combating more commonly known as “adoption prostitution and child pornography for intercountry adoption was wholly and preventing new patterns of sale of agencies”) that are members of the (OPSC) (see 1.C.ii). inadequate to prevent children being children.” EurAdopt umbrella body; “legally adopted” as a result of illegalities The key elements of that mandate in at various stages in the adoption process. In 2016, the current UN Special • experience from field assessments on this regard involve the analysis of the Rapporteur on the sale of children, child alternative care and adoption systems root causes of the sale of children for These concerns came to inspire in prostitution and child pornography, Maud carried out by the author in a dozen adoption and the factors that enable the particular the emphasis, in international de Boer Buquicchio, commissioned a countries on all continents, particularly phenomenon to persist. The explicit standards, on protecting the rights of research paper on “illegal adoptions”, both though not solely since 2005, as well as mention in the mandate of the need to children for whom intercountry adoption domestic and intercountry, to inform the relevant literature he has produced or address “demand factors” is significant. might be envisaged or is already under thematic report on this subject that she to which he has contributed. It demonstrates the importance to be way. This is the clear thrust of the 1989 would be presenting to the 34th session of attached to approaching the question of Convention on the Rights of the Child the Human Rights Council in March 2017. This methodology implies that the “sale” more especially from the standpoint (CRC) (Art 21) and of the 1993 Hague The present publication is an adapted considerations in this study are based of “purchase” - or procurement – and the Convention that was developed to set version of that research paper. Its main more especially on concrete examples profiteering that this implies. The scope in place procedures and mechanisms focus is on illegal intercountry adoptions. of the issues involved. This means that and focus of this study fully reflects that designed to achieve the levels and forms of It seeks to pinpoint in particular the certain countries where experience has perspective. protection prescribed in the CRC. systemic factors that create the conditions been particularly fraught are unavoidably in which illegal adoptions can thrive and mentioned more frequently than others. 1.C.i. It was in that context that the mandate of a to propose effective responses on the Reference to specific countries is therefore “ADOPTION”, “ILLEGAL ADOPTION” Special Rapporteur was originally created part of all actors, with special attention to indicative and exemplary: the intention is AND “ILLICIT PRACTICES” by the UN Commission on Human Rights preventive approaches. not to single out countries as such but to The predominant form of adoption in 1990 (Resolution 1990/68) “to consider highlight problems that their experience – called “full adoption” – involves a matters relating to the sale of children, has exposed. The fact that a country is, judicial or otherwise legalised decision child prostitution and child pornography, or is not, mentioned in relation to any permanently transferring filiation

8 9 from a child’s birth family to that of the authority, are the outcome of “illicit where the child in question is unduly 1.C.iii. adopting parents, and cutting all ties practices”. This latter term refers to acts inducted into and “transferred” through SCOPE AND FOCUS OF THE STUDY with the birth family. 1 The contemporary that violate the rights of the child and/ the system with the aim of securing a The study concentrates more especially view of adoption is as one of a range of or contravene recognised international legalised adoption despite the illicit on illegal intercountry adoptions. possible measures available to public safeguards. Such practices may occur at practices involved. While illegal domestic (national) and child protection systems.2 It is designed any stage of the adoption process: from intercountry adoptions share some to cater to children whose birth family the separation of the child from his/her While the sale of children and trafficking characteristics, most differ as a direct or will never be able to care for them in caregiver up to and including the actual in children are clearly related as indirect consequence of the cross-border the future because of, in particular, granting of the adoption order itself. “illicit practices”, they are dealt with as factor and are consequently subject to death, abandonment, relinquishment or They range from abduction, coercion and distinct phenomena in international distinct international law provisions. withdrawal of parental responsibility. misrepresentation to the falsification of law. The two elements common to both Illicit practices would also appear to be The decision to grant an adoption order documents, sale, trafficking, or otherwise concepts are the “transfer” of a child far less common – though by no means is to be grounded notably in assessments fraudulent methods to facilitate an and the role played by financial or other absent – in domestic adoptions than at the carried out by child protection and adoption, regardless of the benefit benefits in securing that transfer. The intercountry level. social work professionals. Among the obtained (financial gain or other).4 key element that distinguishes “sale” requirements for decision-making are: an from “trafficking”, according to the way In this study, the transactions involved attestation of the child’s legal and psycho- 1.C.ii. the latter is dealt with in the principal in the sale of children and related illicit social adoptability (including free and ”SALE OF CHILDREN” AND “ILLEGAL international instrument on the question, practices are approached, more especially, informed consent of primary caregivers); ADOPTIONS” is the fact that the end purpose of the from a “procurement” angle. This means an assessment and determination of the Illicit practices that result in illegal latter is to be “exploitation” whereas no that the emphasis is placed more on the child’s best interests; and the certified adoptions thus include “sale of children”, condition of purpose is set for acts that “purchase” side of the transaction.6 Taking fitness of the prospective adopters to care which is itself intimately linked with constitute sale.5 this angle enables us to view the issues at for that particular child. those other practices. According to stake as revolving more around responses OPSC, 2(a), “sale of children” means any The sale of children for illegal adoptions to the “pull factor” of demand than simply A domestic adoption is one carried out act or transaction whereby a child is exists almost solely because there is a level to tackle criminal acts in the context of an between adoptive parents and a child transferred by any person or group of of effective demand (see “Demand and otherwise purportedly functional system who are “habitually resident” in a given persons to another for remuneration supply” under 4.C.i. below) for bringing that is “fit for purpose”. In other words, country, even if they are of different or any other consideration. In line with a child into a family that far outstrips the basic problem is not one of how to nationalities. An intercountry adoption OPSC, 3.1.a.ii, this is to include, but by the “natural” supply of children for further tighten up laws and regulations, occurs when the adoptive parents no means be limited to: “[i]mproperly whom this has been deemed to constitute improve processes and increase effective are “habitually resident” in a country inducing consent, as an intermediary, for an appropriate, necessary and legally- repression of criminal activity in other than that of the child (and intend the adoption of a child […] in violation of justifiable response. As a result, and as countries of origin. The basic problem is transferring the child to that country), applicable international legal instruments is well-documented, children become that children who do not or should not even if they are of the same nationality. on adoption.” By logical extension, this to all intents and purposes a desirable need to be adopted, in-country or abroad, can be taken also to mean deliberately commodity in themselves. have been and are being brought into the For the purposes of this study and avoiding or preventing necessary consents adoption process through a wide range of consonant with HCCH terminology,3 being given. But the ramifications of the “illegal adoptions” are consequently those concept clearly go far beyond issues of 5 The 2000 (Palermo) Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children uses that, while having been legalised by the consent: they concern all subsequent the following definition of trafficking in persons: “the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power competent judicial or administrative phases of a normal adoption procedure or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control of another person, for the purpose of exploitation…”. 6 The working definition of "sale of children" adopted by a previous Special Rapporteur on the sale of children, child 1 Virtually all adoptions involving illicit practices are “full”, either as of the initial adoption order or, in the case of a minority prostitution and child pornography was "the transfer of a child from one party (including biological parents, guardians and of intercountry adoptions, as a result of transformation once the child is in the receiving country. institutions) to another, for whatever purpose, in exchange for financial or other reward or compensation." (Report submitted 2 In the USA in particular, however, the decision-making and facilitation roles of actors in the private sector remain significant by Mr. Vitit Muntarbhorn, Special Rapporteur, in accordance with Commission on Human Rights resolution 1993/82, (http:// or even preponderant vis-à-vis the “public” system. See, for example Smolin (2013). www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/E.CN.4.1994.84.E n?Opendocument), However, this must not be read as 3 HCCH (2008): “Illegal adoption: an adoption resulting from abuses, such as abduction, the sale of, traffic in, and other illegal implying that the original provider of the child necessarily receives “compensation”. That provider may be the victim of or illicit activities against children.” coercion, manipulation or fraud to enable the procurer to secure financial benefit through the subsequent onward “sale” of 4 Definition based notably on HCCH (2012b) the child.

10 11 unethical, illicit or outright criminal ways Certain acts and measures are International Law – has therefore decided purely in response to demand. deliberately excluded from the scope of to broach the problem of surrogacy this study. through the possible development of Indeed, the primary focus of this study completely separate norms and principles concerns systemic violations of the child’s This is the case for the practice of kafala to those governing adoption (HCCH, 2017). right to be protected from being sold as of Islamic Law, which is a distinct part of the adoption process. Individual form of alternative care for a child, as Recourse to commercial surrogacy and isolated instances of the sale of evidenced by its explicit mention in the arrangements is nonetheless closely children are obviously to be combatted CRC (article 20(3)), and is not covered linked to the subject-matter of this study forcefully through law enforcement and by the 1993 Hague Convention. The only in two ways: its growth in recent years the criminal justice system. However, exception to this exclusion relates to is in part the result of the decreasing the most significant and by far the most “intercountry adoptions” resulting from availability of “adoptable” children troubling aspects of the sale of children as the transformation of a kafala decision (especially babies and toddlers) and it affects adoption are engendered by the in the child’s country of origin into an it can constitute a form of sale of legislation, policies and actions of States adoption order in the receiving country children, especially (but not only) in concerned. For various reasons that are (see “Converting kafala guardianship into countries where regulation is inadequate, reviewed in this study, States may variously an adoption” under 6.C.vii.d. below). inappropriate or non-existent. ignore, consciously fail to address, tolerate, condone, promote or even require practices Also excluded from this study are most In that regard, Smolin (2016) argues that create the conditions in which the sale acts involving the illegal movement of that the claim that procreation through of children flourishes. children across borders, albeit with the surrogacy is somehow a “right” stated or purported purpose of securing undermines international norms on the The study also takes account of responses their adoption in another country, when sale of children: “Nations that wish to to allegations of prior illegality, whether no such order is made. It therefore does accommodate the practice of surrogacy, brought to light later by the adoptee, the not cover situations such as the much domestic or international, are bound adoptive parents, the first parents or a publicised transfer of children from Haiti under international law to prohibit the third party. to the Dominican Republic by a non-State sale of children and hence must regulate group following the 2010 earthquake, or surrogacy practice to the degree necessary The study makes no attempt to estimate the “Arche de Noé” affair of 2007 when an to avoid the illicit sale of children” (p. 265). overall numbers or proportions of illegal attempt was made to move 103 children adoptions, either at country or global from Chad to France for subsequent Finally, an important concern that bridges level. As for any illicit or clandestine adoption. In contrast, when such acts the gap between surrogacy and adoption activity, reliable figures as to its incidence result in an adoption order actually being stems from cases where application is are notoriously difficult to establish. In the made – such as in the case of some 40 made to adopt a child born as a result of specific case of illegal adoption, moreover, Rwandan children transferred to Italy surrogacy arrangements. These might be the outcome of the illicit activities following the 1994 genocide – they fall construed as attempts to legitimise the sale involved is the same “legalised status” as within the scope of this study. of children through commercial surrogacy, that of adoptions carried out with due and the HCCH Special Commission has probity. Once that status is conferred, Surrogacy arrangements also fall outside clearly stated that it is “inappropriate” it becomes extremely difficult, or even the scope of this study. The phenomenon to use the 1993 Hague Convention to impossible, in a comprehensive manner is clearly distinct from adoption in both regularise international surrogacy and after the event, to investigate which its nature and its ramifications. The (HCCH, 2010a, p. 4). cases were justified and which may have international community – including involved illicit activity. the Hague Conference on Private

12 13 parents against their will, except when The 1993 Hague Convention is more PART 2: THE INTERNATIONAL competent authorities determine that comprehensive and its Articles 8 and 32 such separation is necessary for the set out detailed prohibitions in relation LEGAL FRAMEWORK best interests of the child; to improper financial or other gain and • Art 12: the right of a child who is practices contrary to the Convention. capable of forming his or her own views to express those views freely in The emphasis placed on improper all matters affecting the child financial or other gain in international 2.A. INTERNATIONAL The 1993 Hague Convention builds on this [and] in particular to be provided the legal instruments indicates that INSTRUMENTS rights framework in order to “establish opportunity to be heard in any judicial corruption at any stage of the whole safeguards to ensure that intercountry and administrative proceedings process, including with a view to 2.A.i. adoptions take place in the best interests affecting the child. obtaining consent or to bypassing it, not ADOPTION STANDARDS of the child and with respect for his or only violates the best interest of the child The Convention on the Rights of the her fundamental rights as recognised In addition, account should be taken of but can lead or be linked to serious crimes Child provides in Article 20 that “a child in international law”. The safeguards CRC Art 39: the State’s obligation to take such as the abduction, sale or trafficking of temporarily or permanently deprived are designed, inter alia, to prevent the all appropriate measures to promote the a child. of his or her family environment, or abduction, sale and or trafficking of physical and psychological recovery and in whose own best interests cannot be children. social reintegration of a child victim of any It can be noted that the now defunct allowed to remain in that environment, form of neglect, exploitation or abuse… Working Group on Contemporary Forms shall be entitled to special protection and 2.A.ii. of Slavery considered sale of children assistance provided by the State.” The care STANDARDS CRIMINALISING The Optional Protocol to the Convention and illegal adoption as a modern-day envisaged in the Convention can include, SPECIFIC ILLICIT ACTIVITIES WHICH on the Rights of the Child on the sale of form of slavery. This is particularly inter alia, foster placement, kafala of LEAD TO ILLEGAL ADOPTIONS children, child prostitution and child significant because the interpretative Islamic law, adoption or placement in a The child’s right to be protected from sale pornography (OPSC) provides in Article notes on Article 3 of the 2000 (Palermo) “suitable” institution. and illegal adoptions is abundantly clear 3 that States must “ensure that all persons Protocol to Prevent, Suppress and Punish from the Convention on the Rights of the involved in the adoption of a child act in Trafficking in Persons, Especially Women CRC Article 21 establishes the best Child itself (notably arts. 21 and 35). conformity with applicable international and Children state that illegal adoption interest of the child as the paramount That said, illegal adoptions jeopardise legal instruments.” In the context of falls within the scope of the Protocol consideration in all matters related to respect for – and often quite simply violate intercountry adoption, this clearly when it amounts to a practice similar to adoption. It further requires “that the – other relevant provisions in the treaty. includes CRC Article 21, mentioned above, slavery. Furthermore, the Supplementary adoption of a child is authorized only by These include: which prohibits improper financial gain Convention on the Abolition of Slavery, competent authorities […], in accordance for those involved in it. the Slave Trade, and Institutions and with applicable law and procedures”, “that • Art 7.1: the right of the child, as far as Practices Similar to Slavery defines slavery the adoption is permissible in view of the possible, to know and be cared for by The OPSC also provides in Article 3 that as “the status or condition of a person over child's status concerning parents, relatives his or her parents; in the context of the sale of children whom any or all of the powers attaching to and legal guardians and that, if required, • Art 8: the right of the child to preserve “improperly inducing consent, as an the right of ownership are exercised” and the persons concerned have given their his or her identity, including intermediary, for the adoption of a child the slave trade means and includes “all informed consent to the adoption”. In nationality, name and family relations in violation of applicable international acts of disposal by sale or exchange of a respect to intercountry adoption, the without unlawful interference and, if legal instruments on adoption” must person acquired with a view to being sold Convention stipulates that the latter illegally deprived of some or all be criminalised both domestically and or exchanged”. should only take place if no suitable elements of his or her identity, to have transnationally. national alternative care solution can be that identity re-established;7 found, and notably prohibits improper Art 9.1: the right of the child • 7 In the context of this study, it is particularly worthwhile recalling the origins of this article. It stems from a proposal that the financial gain for those involved. not to be separated from his or her delegation of Argentina submitted to the Working Group drafting the Convention in 1985, precisely in the light of the illegal adoptions that had affected many children of the “disappeared” in that country during the military dictatorship, 1976-1983 (see also 2.B.i.b. below)

14 15 2.B. KEY PRINCIPLES taken for the “well-being” of the child. As protection services in most countries of family as demonstrating that the best GOVERNING ADOPTION such, in the field of adoption it was used origin are already severely under-resourced interests of that child justify adoption to justify, among other things, what we and over-stretched. In practice, therefore, abroad. A typical example is: “[children] As is the case for all situations, the would now see as egregious violations of the feasibility of a best-interests assessment are available for entire panoply of the human rights of children’s rights, including mass domestic prior to each adoption is anything but for many reasons. This is most often due children must be taken into account in programmes of “forced adoption”. guaranteed. As a result, and to the extent to their birth inability to parent adoption decisions, in the prevention that best interests are considered at all, based on poverty. Poverty worldwide of illegal adoptions and in responding While today decisions based on best they risk continuing to be viewed from a creates the need for international to allegations of illicit practices. In the interests are to be made in principle dangerously subjective standpoint. adoption, but it is not the only reason” sphere of intercountry adoption, the within the limits set by all other rights (Children’s House International, n.d.). additional procedural safeguards set out in the CRC, there is still cause for serious The “vagueness” or flexibility of the in the 1993 Hague Convention provide concern over the manner in which this concept of best interests is of course Smolin (2007) notes that removing the vital means and grounds for ensuring the notion is used, abused and manipulated. deliberate and understandable: to take children of poor parents “exploits the probity of the measure. The concern is particularly great as account of a wide range of situations and, vulnerability of those deprived of their regards intercountry adoption, and this importantly, of different perceptions that basic human right to an adequate standard At the same time, there are three key for a number of reasons. will prevail according to the socio-cultural of living, and uses this deprivation of rights principles and norms contained in the context in which those interests are being as justification for further deprivation of relevant international instruments that The first stems from the enhanced assessed. This poses special problems in rights: the rights of parents to retain the underline the decision-making and importance given to the best interests of the sphere of intercountry adoptions where care and custody of their children”(p. 437). protections to be respected as regards the child in relation to adoption, where two, usually very different, socio-cultural adoption: best interests of the child; the it is to be “the paramount consideration”, contexts “meet”. While actors in a receiving The CRC reaffirms that children subsidiarity principle; and the prohibition not just “a primary consideration”, in country may believe that formal adoption themselves have the right to an adequate of improper gain. While they are key, all decision-making. It is obviously not by one of its citizens represents the best standard of living, and their parents to however, all three are still the subject of the fact that the child’s situation, needs interests of a given child, that child’s family support to that end (article 18(2)). But debate, to a greater or lesser degree, as and wishes must take precedence over and community, and their representatives, in addition to calls for family poverty to their interpretation and consequent the interests of any other party that is may hold a very different view. Clearly no longer to be viewed as constituting implementation. This section attempts to contested or doubted. The problem lies in it is the responsibility of the country of grounds for adoption,9 the 2009 analyse and clarify – if not resolve – the placing an essentially undefined principle, origin to determine whether or not it is Guidelines for the Alternative Care of contentious issues involved in each, with with no established criteria or procedure in the best interests of one of its children Children, take an uncompromising stand special reference to their implications for for determining those “best interests”, as to be adopted abroad but in practice, as on this question for the first time in an combating illegal adoptions. the prime condition to be satisfied if an underlined at a Pan-African Conference international instrument, stating: adoption is to take place. on Intercountry Adoption in 2012, the 2.B.i. influence of receiving countries on a Financial and material poverty, or BEST INTERESTS OF THE CHILD AS To some extent, the problem was alleviated child’s “adoptability” undeniably holds conditions directly and uniquely THE PARAMOUNT CONSIDERATION8 by the Committee on the Rights of the sway in many instances (ACPF, 2012a). imputable to such poverty, should never The concept of the “best interests of Child’s 2013 General Comment on the best be the only justification for the removal of the child” pre-dates by several decades interests of the child, which proposes a 2.B.i.a. a child from parental care, for receiving the granting of the full range of human “Child Rights Impact Assessment” (CRIA) BEST INTERESTS OF THE CHILD a child into alternative care, or for rights to children through the CRC. In to inform decisions (Committee on the AND POVERTY preventing his/her reintegration, but the pre-CRC era, it served as the basic Rights of the Child, 2013b). However, a A good indication of that influence – and should be seen as a signal for the need to criterion – however vague, subjective and fully-fledged best-interests assessment its highly questionable foundations – lies provide appropriate support to the family dependent on prevailing attitudes – for exercise requires substantial and in the abundant reference by receiving (UN General Assembly, 2010, p. 4). determining what measures should be qualified human resources, whereas child country actors to the “poverty” of a child’s

8 For a full discussion on the concept and its application to intercountry adoption, see Cantwell (2014). 9 See for example Fuentes et al. (2012), p. 20, and Committee on the Rights of the Child (2005), para. 54(c).

16 17 Clearly, the reasoning behind this or foreign families, and were traced only anxieties they may have on learning of First, they prioritise enabling children provision makes it even less acceptable to several years later, applying this principle the possibility that illicit practices were to remain in, or return to, their family, countenance the definitive severance of led to case-by-case consideration of involved in their adoption. with any necessary support, before ties and removal of a child from a family the most appropriate course of action. envisaging their temporary or permanent for adoption on the sole grounds of that Necessarily, this involved counselling and The second kind is used more commonly placement elsewhere. It is important to family’s poverty and invoking “the best consulting with the child to ascertain his by competent authorities and other bodies emphasise that the term “family” covers interests of the child” as the motive. As or her wishes. In some cases, for example, that are reluctant to carry out or assist not just parental care but also kinship is so often the case, there is a deliberate this led to the child remaining in the care the investigation of historical, large-scale arrangements. or naïve confusion made here between of the adoptive family but having cases of alleged illegal adoptions. Here, “best interests” and the idea that a child with members of the family of origin. the argument put forward often maintains Second, they privilege family-based care will inevitably be “better off” in less that, at the time of the alleged malpractice, settings over residential placements straightened material circumstances. The danger, however, is that the “best the adoption was considered to be in the should alternative care arrangements be interests” of young children who have child’s best interests. demonstrably necessary. Where there is Successfully invoking “best interests” been victims of illegal intercountry deemed to be no possibility for the child considerations on the grounds of poverty adoptions will almost automatically In the above instances where there is an ever to return to the care of his or her has created fertile ground for the sale be seen to dictate that the child should attitude of “let sleeping dogs lie”, the family, adoption may be envisaged in of children and illegal adoptions. If remain with the adoptive parents, even underlying message is that there are appropriate cases. financially vulnerable parents are when the latter played a conscious role mitigating circumstances surrounding persuaded that the best interests of in the illegal process. The Dutch Central illicit acts designed to ensure adoption Third, and of special note in the context their child means that he or she must be Authority states that, “[w]hen an illicit because adoption is a positive practice of this study, the “subsidiarity principle” relinquished, and prospective adopters practice really has been identified, the that, in the end, will be in the best serves as one basis for deciding whether simultaneously convince themselves that Child Protection Board will weigh what interests of the child. Clearly, efforts or not intercountry adoption is necessary they are somehow “saving” that same is in the best interests of the child: to stay to respond to and combat illegal and “in the best interests of” a child, as child, the basic conditions are assured for with his/her ‘adoptive parents’ despite adoptions cannot take account of such an opposed to any appropriate in-country stimulating and enabling the procurement their illegal actions, or being placed with approach.11 solution that can be made available. of children for adoption. a foster family, [even if] the ‘adoptive Intercountry adoption should only be parents’ can be good parents” (Dutch 2.B.ii. approved if “the child cannot be placed in 2.B.i.b. Central Authority, 2016).10 SUBSIDIARITY PRINCIPLE a foster or adoptive family or cannot in BEST INTERESTS OF THE CHILD ONCE AN The “subsidiarity principle” is invoked any suitable manner be cared for in the ILLEGAL ADOPTION HAS BEEN COMPLETED It is also worth noting that “best- to determine the order in which child’s country of origin.” (UN CRC, 1989, Reference to the best interests of children interests”-based arguments are sometimes consideration is to be given to various art. 21(b)). Consideration of intercountry who are known to have been adopted put forward to justify non-intervention possibilities for caring for a child when adoption possibilities is thus to be illegally, or regarding whom illegal when allegations of illegal adoptions are his or her family is unable or unwilling “subsidiary” to appropriate forms of in- adoption is feared, takes place in two main made. These are of two main kinds. to do so, or when the child’s effective country care, which need to be envisaged contexts. protection is deemed to require removal and examined first. The first comes into play when concerns from its care. While international First, and constructively, the principle that illegal adoptions have taken place – standards do not make explicit reference It is important to note that the subsidiarity of the best interests of the child must especially from a specific named country to this principle, they enshrine it principle is to be applied in conjunction underpin decisions on the child’s future of origin – are raised publicly. It is then implicitly in three different and with that of the best interests of the child when illegality has been established. sometimes argued by adoptive parents in important ways. and, of course, against the background of In the case of the children of the particular that “the best interests” of the the child’s overall human rights. Worthy of “disappeared” in Argentina and who children who have been adopted from 11 Note that Australia’s 2013 National Apology for Forced Adoptions recognised “the policies and practices that forced the were placed for adoption with national that country will be jeopardised by the separation of mothers from their babies”; a system that “subjected [mothers] to manipulation, mistreatment and malpractice”; the fact that mothers were “denied knowledge of [their] rights, which meant [they] could not provide informed consent”; and “practices that were unethical, dishonest and in many cases illegal”. It did not attempt to justify any of these acts by referring 10 The Central Authority also notes that “the Public Prosecutor will investigate whether punishment is possible/desirable.” to the best interests of the child.

18 19 special concern about potential disregard 2.B.iii. form of “contributions demanded by the until problems are pervasive (often for subsidiarity is the adoption abroad PROHIBITION OF IMPROPER State of origin” as well as “unreasonable” resulting in scandal at the global level, of babies and toddlers, which has been a FINANCIAL OR OTHER GAIN costs, development aid, expenses and fees including in the media) before addressing prevalent phenomenon from a number Interestingly, the explicit prohibition charged. They may allow third parties them” (HCCH, 2015b, p. 3). of countries of origin with experience of of “improper financial gain” in the CRC – e.g. intermediaries, lawyers and care illegal adoptions. A report issued by the applies only to intercountry adoption facilities – to charge what “the market” What is less commonly underscored, Swedish Central Authority, for example, (CRC, 1989, art. 21(d)). According to the will bear, and in some cases they act as and that the present study will therefore states that “In situations where very HCCH, improper financial or other gain direct channels for securing and passing focus on more particularly, is how young children are subject to intercountry (1993 Hague Convention, arts. 8 and on “unreasonable” sums, particularly to the authorities of countries involved adoption, [the Central Authority] finds 32(1)) refers to “an amount of money or residential centres. in intercountry adoptions, whether it reasonable to question whether there other material gain that is not justifiable countries of origin or receiving countries, has been sufficient time to investigate the because it is not in accordance with The authorities of receiving States become actively enable improper financial gain child's background and the possibilities of ethical practices and standards, including complicit in such “improper financial to take place and, in many instances, national adoption” (Swedish Intercountry national and international legislation, gain” by acquiescing to these demands are very directly implicated in turning Adoptions Authority, 2015, p. 41). and/or is not reasonable in relation to the in order to ensure that their citizens can intercountry adoption into what the service rendered. The usual meaning of access children for adoption from that HCCH terms “a market around adoption” There has also been debate over the extent improper is dishonest or morally wrong” country. As noted by the HCCH: (HCCH, 2014c, p. 15). to which the subsidiarity principle is (HCCH, 2012c, p. 2). The HCCH states that, respected by countries that receive foreign “[i]n the area of intercountry adoption, “The problems surrounding the adoptees yet send considerable numbers improper financial or other gain [often] financial aspects of intercountry of their own children for adoption abroad. results in […] improper influence on adoption, including those arising from A notable example here is the USA.12 decisions regarding a child’s adoption” contributions, co-operation projects Certain European receiving countries have (HCCH, 2014c, p. 2). and donations, directly affect children, expressed concerns about the way, and the biological families and prospective reasons why, the children in question enter The question of improper financial gain adoptive parents, as well as the reputation the intercountry adoption channel: the has usually been looked on in terms of and of intercountry adoption US Central Authority itself states that “the preventing actors involved in the adoption as an option among the possibilities majority involves ” (US Department process from profiting unduly from their for alternative care. Improper financial of State, 2014a, p. 7), despite the high level interventions. Essentially, this may result or other gain is often linked with, in of unsatisfied “demand” within the USA for either from their charging unduly high particular, the procurement of children such children. rates for legitimate and necessary services for adoption. In its worst form, this may they provide or from providing services involve the abduction, the sale of, or traffic The problem of special relevance for the grounded in illicit or criminal activities. in children for intercountry adoption, present study relates to the deliberate especially where the safeguards of the by-passing of the subsidiarity principle in This is however only part of the problem. [1993 Hague] Convention are not in place” order to procure children for intercountry Governments of some States of origin (HCCH, 2015b, p.1). adoption due to the financial rewards themselves also take advantage of that this can generate. It is therefore itself intercountry adoption to secure funds – The HCCH also deplores the fact that one element in the third key principle usually from prospective adopters and/or “[m]any States have a reactive approach examined here, regarding improper agencies – that are unrelated to services to financial malpractice and abuse in financial gain. provided for the adoption, e.g. in the intercountry adoption and tend to wait

12 There is, however, disturbingly poor data on numbers of “outgoing” adoptions from the USA, with only voluntary reporting to 12 There is, however, disturbingly poor data on numbers of “outgoing” adoptions from the USA, with only voluntary reporting to the US Central Authority. Thus, the latter’s 2014 Annual Report “only addresses outgoing adoption reported to the Department. the US Central Authority. Thus, the latter’s 2014 Annual Report “only addresses outgoing adoption reported to the Department. We suspect that a number of outgoing adoptions have not been reported […]” Grounds for that “suspicion” are clear: for We suspect that a number of outgoing adoptions have not been reported […]” Grounds for that “suspicion” are clear: for example, a total of 96 such cases were reported in 2014, whereas Canada alone records 123 adoptions from the US that year. example, a total of 96 such cases were reported in 2014, whereas Canada alone records 123 adoptions from the US that year.

20 21 BOX 1: • Active “recruitment” into residential care destined to result in adoption METHODS USED TO SECURE ILLEGAL ADOPTIONS abroad; • Transfer or removal from an alternative care setting without consent There are innumerable ways in which a child for whom adoption was not (tantamount to abduction); envisaged, required and/or legally foreseeable becomes “adoptable” and • Fraud, such as misrepresentation of identity and obtaining children from “available” to prospective parents. They range from abduction and production biological families through false representations; to procurement and laundering. Two or more may be used in combination • / falsification of documents; in any given case. They invariably involve “improper financial gain” at the • Bypassing consent by falsely ensuring that the child is designated as very least. “abandoned”; • Child laundering,14 whereby children are obtained illicitly by force, fraud The following is a non-exclusive but already disturbingly long list of methods or funds, false documents of adoptability are created, and the child is then employed to procure children for intercountry adoption.13 Some apply processed for intercountry adoption; to domestic adoptions as well. Documented examples of most feature at • Bypassing the matching system in order to enable prospective adopters appropriate points in subsequent parts of this study. They include: to select a child; this may involve, for example, requiring or accepting payments in return for giving access to a “special listing” of children • Abducting babies by a variety of methods, including organised kidnapping, considered for adoption, or processing without question a “request” made for the purpose of placing them for adoption; by prospective adopters or their agency; • Remunerated , with the agreed outcome being the child’s • “Reserving” certain adoptable children for intercountry rather than placement for adoption (also known as “baby farming”); domestic adoption or other appropriate domestic solutions for their care; • Ultimatum (e.g. provision of pre-natal care on condition of surrendering • Providing false information to prospective adopters, e.g. regarding the the child for adoption); child’s status or age, or the process to be followed and costs involved; • Falsely informing the mother that her baby was stillborn or died shortly • Bypassing the intercountry adoption process, e.g. by removing a child from after birth, thereby enabling the baby to be introduced into the adoption the state of origin through guardianship arrangements or other means; system; • Securing decisions by bribery (including the obtention of unjustified • Identifying vulnerable mothers - from poor families, marginalised ethnic attestations of handicap or serious illness to ensure placement for minorities, unwed or single - and inducing them to give up their babies intercountry rather than domestic adoption, pronouncement of (consent obtained by fraud or duress). Pressure may be exerted before the adoptability, consent of facility director, a matching decision by the birth, at the maternity clinic or hospital, or in the adoption agency, which competent person or body, the agreement of a judge to waive certain may house the mother until delivery; prescribed conditions for foreign adopters or simply to issue the adoption • Improper payments or gifts to family members, intermediaries, officials, or order without question…). others; • Other improper inducements to obtain the consent of the biological parents or family; • Providing misleading information to the biological parent(s) on the consequences of adoption to obtain their consent. This includes assuring them, or allowing them to believe, that they will be able to maintain links with, or receive news of, the child after the adoption, or that the child will return on reaching adulthood; • “Prospecting” for children by visiting villages/communities and suggesting that families in difficulty give up a child for adoption; 13 This non-exclusive listing is a compilation of methods identified by HCCH and/or ISS, as well as those brought to light as a result of field assessments. 14 This concept was first used by Smolin (2010).

22 23 numbered 2,303, compared with 344 cases the reference point today should PART 3: intercountry adoptions, although only 26 no doubt rather be standards governing of these concerned children were already intercountry adoptions. The details of ILLEGAL DOMESTIC ADOPTIONS in the alternative care system (HCCH, such “safeguards and standards” for 2013b). In that year, Bulgaria carried out domestic adoption are not homogenised 705 domestic adoptions from its care or codified internationally, moreover, system while 407 of its children were making it more difficult to determine framework of family and child protection adopted abroad (HCCH, 2014a), and the which are to be reproved. That said, and 3.A. BACKGROUND TO THE and welfare” (Van Loon, 1993, p. 215). corresponding figures for the Dominican while there is considerably less easily SYSTEMATIC SALE OR Republic were 34 and 21 (HCCH, 2013a). accessible information regarding illicit ILLEGAL DOMESTIC At the present time, national policies Although its 2009 figure for intercountry practices in domestic adoption, this ADOPTION OF CHILDREN towards adoption differ greatly, as do laws adoption (1,600) outstrips that for section looks briefly at two forms of illegal and regulations governing requirements domestic adoption (1,153), Colombia also domestic adoptions: Adoption as a domestic practice has a and procedures. Thus, for example, makes significant use of the measure long history which has seen considerable adoption of children from the care system (HCCH, 2009), and Peru showed a similar • Historical cases that have on-going variations in its forms and purpose, has been very actively encouraged in characteristic (145 intercountry adoptions importance for determining the nature both in time and in space – including recent years in England where, between for 101 domestic) (HCCH, 2010b). and effectiveness of responses to mass periods when in fact only adults could be April 2014 and March 2015, fully 5,330 violations of the domestic adoption adopted. As recorded by Van Loon (1993), children were adopted from that system In many other countries of origin, in system. however, it was in the USA in 1851 that full (Adoption UK, 2017). This compares with contrast, domestic adoption is rare. Thus, • Current practices that require review adoption of children was first recognised France, with a larger population, where while Madagascar carried out 20 domestic and appropriate action. in a domestic legislation. Legalised full just 894 “wards of the State” were placed adoptions in 2015, 16 of those were intra- adoption took the best part of a century for adoption in 2013 (Enfance & Familles familial and it processed 76 intercountry to be accepted elsewhere – e.g. England in d’Adoption, 2016). In Germany, while adoptions that same year (HCCH, 2015a). 3.B. ILLEGAL DOMESTIC 1926 (though initially without conferring 3,793 domestic adoptions were carried Indeed, in most countries of sub-Saharan ADOPTIONS AS PART inheritance rights) and France in 1939. out in that same year, some 70% of these Africa, and many in Asia, legalised full OF LARGE SCALE PAST These then colonial powers introduced the concerned intra-familial/step-parent adoption remains almost unknown and ABUSES measure into many countries under their adoptions (HCCH, 2014b). The total figure often alien to the community’s outlook control. Uruguay was the first country for domestic adoptions in Switzerland in on family and , although there Historical cases of large-scale programmes in Latin America to legislate on full 2014 was only 160, but even then 80% of are indications of a latent demand for of forced adoption during the 20th adoption, in 1945. Portugal only did so in these were intra-familial (HCCH, 2014d). adoptable children in some. century, carried out under deliberate State 1966 (Van Loon, 1993). policies or with the complicity of the State, Similar wide differences apply to domestic Domestic adoptions, and problems related are still of direct current relevance. Several Adoption was at first – and indeed remains adoptions in countries that also send to them, have generally been given far less decades on, many victims of such abuses so in many communities today – a secret significant numbers of children for attention than intercountry adoptions. It are still seeking to trace family ties and affair, with adopters and adoptees being adoption abroad, although regrettably seems to have been assumed that, without demanding redress. States’ commitment the subject of societal discrimination. few make the relevant statistics readily the cross-border factor, probity can be to ensuring such transitional justice has Original documents were thus destroyed, available. quite easily ensured. This approach is varied considerably, in terms of both making it difficult now to ascertain the reflected in the pre-Hague CRC (Art timely responsiveness and the efficacy of extent to which practices that would Some such countries have a relatively 21(c)) which enjoins States to “ensure the measures proposed. currently be termed “illicit” may have robust domestic adoption programme that the child concerned by intercountry been involved. According to Van Loon, involving higher numbers of children adoption enjoys safeguards and standards Three main types of context can be it was only as of the 1960s that adoption than those adopted abroad. Thus, in equivalent to those existing in the case identified in which States developed began to be seen, policy-wise, “within the 2013, domestic adoptions in Thailand of national adoption,” whereas in many policies and programmes for the removal

24 25 of children en masse from the care of their grandchildren – some 120 have been Senate - Community Affairs References of enquiry which submitted a report in mothers. The first concerns attempts located to date. The democratic regime Committee, 2012). After decades of May 2015 describing the various ways in by the State to suppress opposition, that followed the dictatorship was quick effort by non-governmental bodies, a which illegal adoptions were carried out in meaning that babies and young children to recognise the need to preserve and re- National Apology for Forced Adoptions that period, involving a range of scenarios, were removed from the care of parents establish children’s identity – in 1984 it was adopted by the Senate and House of from “organised abandonment” to “forced considered to be unsuitable on ideological proposed the basis of what was Representatives in 2013. adoptions”, sometimes involving the sale grounds. The second is a “moral” to become Article 8 of the CRC, and in of the babies. The report points to the response to the situation of children 1987 it set up the National Database of Non-governmental bodies in Ireland direct implication of religious institutions born out of wedlock and whose mothers Genetic Data. have been waging a long battle with the and adoption services, as well as medical were therefore deemed unfit to care for authorities to investigate the forced and staff and civil servants. On 24 November them. The third involves the removal of Under the Francoist regime in Spain illegal adoption of children of unmarried 2015, the Flemish Parliament apologised children on “cultural” grounds, targeting (1939-1975), “babies born to members of mothers that took place as of the 1950s, for its tardiness in investigating the ethnic minority communities and more the opposition were abducted and given and to facilitate access to records. issue. On the same day, Flemish bishops especially First Nations. to families loyal to Franco. Many people According to the Adoption Rights Alliance, publicly recognised the role of religious were involved in this ideological – and adoption agencies and mother-and-baby institutions in the practice, which the It seems unlikely, but by no means later purely lucrative – business: doctors, homes run by religious orders, as well as Secretary General of the Conference impossible, that similar initiatives be midwives, the Church and public officials” the adoption authorities themselves, were of Belgian Bishops was reportedly still carried out in the future. The main issue (Baglietto, Cantwell & Dambach, 2016, among those complicit in the scheme. Up denying one year previously, declaring at stake today for these historical cases, p. 29). The number of cases is unknown; to 10,000 children may have been involved that that the adoptions were not “forced” therefore, is the way that States have estimates vary from 30,000 to 300,000 – a government official has spoken of “at but a “choice” made by the mothers. subsequently reacted to demands that they cases. An effective response to identify least several thousand illegally adopted Consequent to the findings of the enquiry, respond effectively to the documented or victims and trace families was hindered by people; we might never know the total the Flemish Authorities announced that alleged rights violations that had occurred. the 1997 Amnesty Law of 15 October 1977 number because of the lack of a paper a DNA databank was being set up with The following gives a brief overview of which essentially created impunity for trail” (Adoption Rights Alliance, 2015, a view to creating a “filiation centre” selected historical cases according to the these crimes for a long period. However, p. 2). It is claimed that some 2,000 of to assist those seeking to trace their typology set out above. non-governmental efforts finally led to them were illegally adopted abroad, more biological parents or children (D’Yvoire, the establishment of a DNA database of especially to the USA. It was only in 2015 2015; Vaillant, 2015). 3.B.i. parents searching for their children, and that an investigatory commission was IDEOLOGICALLY-MOTIVATED ILLEGAL the government has now put in place set up, although there are concerns that 3.B.iii. ADOPTIONS a dedicated “information service” for its terms of reference (Mother and Baby “CULTURALLY”-MOTIVATED ILLEGAL During the military dictatorship in parents and children who believe they Homes Commission of Investigation, ADOPTIONS Argentina (1976-1983), an estimated were victims of the practice. 2015) may be too limited to capture most The so-called “” took place 500 babies of political opponents of the alleged illegal acts (Sentinel Human in Canada between 1960 and the mid- were “disappeared”, labelled “NN” 3.B.ii. Rights Defenders, 2015). 1980s. It involved the mass adoption of (ningún nombre = “nameless”) and MORAL ATTITUDES LEADING TO aboriginal children into non-aboriginal placed for adoption with sympathisers ILLEGAL ADOPTIONS Similar concerns have been raised in families, which was acknowledged to of the government, in some cases in An estimated 130,000 babies born to Belgium (Flemish Community) where have stripped children of their culture neighbouring countries. Already in 1977, unwed mothers in Australia were abruptly a group of victims set up an association, and identities. In many cases, children the grandmothers of these children removed from their care shortly after birth “Mater Matuta”, in 2014, claiming that up were forcibly removed from their homes formed an association to protest the (the “clean break” approach) and placed to 30,000 births in Belgium between the and communities without the knowledge phenomenon and search for the children; for adoption throughout the third quarter 1950s and the 1980s may have resulted or consent of families. According to this group was the forerunner of the of the 20th Century. This corresponded in illegal adoptions. At the end of 2014, Origins Canada, the Department of Indian Abuelas de Plaza de Mayo association which to a government policy sanctioned the Flemish Minister for the Family Affairs has records of 11,132 status Indian is still active in tracing illegally adopted by churches and charities (Australian established a parliamentary commission children adopted between the years of

26 27 1960 and 1990, but it is believed that the reputation is not damaged, especially if 3.C. CURRENT MANIFES- baby in return for her medical expenses real number may be as high as 20,000 collusion of the State was involved. TATIONS OF ILLEGAL and other costs being paid. After the (Indigenous Adoptees, 2017). In June DOMESTIC ADOPTION birth, the mother allegedly declares to the 2015, Manitoba became the first Canadian From a transitional justice perspective, civil registry office that the “client” is the Province to apologise for this practice. in the aftermath of all major historical Over and above criminal acts committed biological father and then relinquishes At the time of writing, a class action cases of abuses committed on a systematic by individuals or groups, the significant custody of the child in court. According to lawsuit at federal level regarding loss of basis within different contexts, victims issue in relation to current concerns about the report, only a quarter of the adoptions cultural identity as an actionable wrong, have worked together to secure States’ illegal domestic adoptions – as indeed in Poland in 2005 were mediated by first launched in 2010, is due to be heard recognition of their right to see the about intercountry adoptions – revolves adoption centres, because the “legal” (Sixties Scoop, 2017). perpetrators punished, to know the around the extent to which the competent process is considered too long and too truth, to receive reparations and to be authorities are prepared to tackle the demanding. The report quotes the Polish 3.B.iv. guaranteed that this will not be repeated “enabling environment” for such acts as Commissioner for Children’s Rights as RESPONDING TO LARGE-SCALE (ICTJ, 2017). well as to respond appropriately when criticising the law allowing the biological ABUSES OF DOMESTIC ADOPTION they occur. Six very different examples mother to search for potential adopters, These examples of historical cases of According to the International Centre are given here to illustrate very different which “encourages the development of systematic illegal domestic adoptions for Transitional Justice (ICTJ), “because facets of this question. underground adoption through online ads demonstrate that governments and systemic human rights violations affect and illegal mediators” (“Illegal Adoptions relevant governmental bodies have not just the direct victims, but society Nanou (2011) conducted a study on the in Poland”, 2013). tended to resist for many years – as a whole, in addition to satisfying situation in Greece, where domestic sometimes decades – attempts to secure these obligations, States have duties to adoption can be processed through state In , UNRIC has reported that there the investigation of concerns over the guarantee that the violations will not recur, institutions or by private agreement. is a “thriving black market in children”, State’s complicity by commission or and therefore, a special duty to reform The long delays involved in the “public” some of whom are “bought or kidnapped” omission, as well as consequent demands institutions that were either involved in process allegedly incite prospective and then sold to that in for reparation and for facilitated or incapable of preventing the abuses” adopters to choose the private route turn put them up for adoption, either opportunities to search for origins. Unless (ICTJ, 2017). In the case of intercountry where, according to the study, “financial domestically or abroad. The report notes there is recognition of general human adoptions, this obligation concerns both gain and exchange are commonplace.” The that, in 2011, 370 persons were arrested rights violations under a previous regime countries of origin and receiving countries. study contends that “the legal framework in relation to this black market, thereby (as in the case of Argentina), only with Recognition, reconciliation and the fight concerning private adoptions is weak avoiding 89 children being sold. The the passage of time do governments against impunity not only contribute to and allows for practices that are not only solution to the problem of reducing seem to feel able to distance themselves regaining trust between groups and state barely legal but also even immoral. The demand for abducted children was seen sufficiently from the actions – or inaction institutions but also, crucially, help victims de-facto operation of a kind of adoption to lie in obliging adopters to go through – of their predecessors and thus possibly to deal with the past and States to pursue market, with clear vested financial official channels, without proof of which to envisage effective responses. effective responses in the search of origins, interests for professionals as well as for they would be denied recognition as reunification, identity, etc. birth parents represents a ‘dark side’ of legal guardians (United Nations Regional When still in existence and operation, this process. Large sums of money paid to Information Centre for Western Europe, non-State organisations, institutions and Any attempt to deal with massive professionals encourage corruption.” The n.d.). agencies allegedly involved in historical abuses and systematic practices from a study suggests that corrupt practices have cases have usually demonstrated resistance, transitional justice perspective must aim become endemic in the Greek adoption Responding to questions from the fearing that acknowledgement of past to end and combat the structures that system and to some extent are normalised Committee on the Rights of the Child in failures could compromise their future. allowed this practice to start in the first and accepted at all levels (Nanou, 2011). 2007, the representative of France referred In some cases they have had sufficient place, by sending a strong message to to a case where Bulgarian mothers had individual or collective influence to all victims, perpetrators and society in A 2013 report concerning Poland noted been paid by French intermediaries and persuade the authorities not to act, or to general that this type of abuses will never that it is legal for a pregnant woman to adoptive parents to adopt their children. act in a way that will ensure that their again be tolerated. advertise the fact that she will give up her He noted that, in this case, “22 babies

28 29 had been sold in a fraudulent adoption of domestic adoption by individuals who scheme. The lead members of the criminal were not enrolled in the central database network that had organized the sale of for adoption (General Prosecutor’s Office the babies had been imprisoned, and of the Republic of Kazakhstan, n.d.). the families that had bought the babies According to UNICEF, 44 cases of the sale in question had also received symbolic of children were recorded as crimes against sentences. The judges had decided to leave children (UNICEF Kazakhstan, 2016). the babies in the custody of their adoptive families, following an investigation into These examples of current situations of each child’s circumstances and well-being” concern show the diversity of potential (Committee on the Rights of the Child, problems that may need to be tackled in 2007, para. 32). This case exemplifies relation to illegal domestic adoptions, the difficulty of responding to illegal from the system itself to the inadequate adoptions after the event, when “the best implementation of that system. They also interests of the child” may seem to dictate demonstrate the complexity of responding that the “legality” of the “illegality” simply appropriately to honour the human be reaffirmed. rights of the child after the event. With some exceptions, States globally have In the USA, the issue of the “rehoming” of so far demonstrated reluctance to react adopted children has raised concerns in adequately to those criminal acts that are recent years. According to a memorandum uncovered, and appear to have paid little issued by the federal Children’s Bureau, attention to countering the “enabling “rehoming” involves initiatives taken environment” provided by certain systems by adoptive families “to ‘advertise’ and or by lacunae in the practical operation of facilitate placements of their [adopted] otherwise potentially positive systems. children with nonrelative strangers […] outside the purview of the courts or public States that recognise and/or permit child welfare agencies” (Administration adoption should ensure that there is a for Children and Families, 2014, p. 1). single recognised process for completing The memorandum does not seek to have an adoption and should in particular the act itself outlawed, no doubt because prohibit independent (“private”) the practice is in fact akin to a normal adoptions. “private adoption” (which at some point will have to pass through a protective Adoptees and first (birth) parents judicial procedure) which is acceptable in expressing concerns about the the USA. At the same time, this practice circumstances of an adoption should reportedly does not usually involve any benefit from a procedure and system that significant financial transaction. enables their concerns to be duly heard and examined. This procedure and system As a final example, in 2014, the Office of should provide for ultimate redress and the General Prosecutor of Kazakhstan reparation, where appropriate. revealed that children were being sold from maternity wards into adoption by Kazakh nationals. It reported 457 cases

30 31 large amounts of money...” (p. 468-9). and to improve regulation. These efforts PART 4: He continues: “The stark decline in have reflected a change in attitude on the intercountry adoptions from Guatemala part of law-makers. The first European ILLEGAL INTERCOUNTRY [as of 2008] can be attributed to the and Hague Conventions on intercountry inevitable collapse of a system broadly adoption in the Sixties focused more ADOPTIONS viewed as corrupt, money-driven, and especially on applicable law and mutual rife with child trafficking” (2010: 477). At recognition of such adoptions by the that time, this was also clearly the view contracting States, and not on tackling of the US Department of State (now its wider child protection issues (European 4.A. some cases those appointed by the courts), Central Authority) which, in March 2007, Convention on the Adoption of Children, BACKGROUND TO THE SYSTEMATIC hospitals, doctors, children’s institutes, advised that “we cannot recommend 1967; Hague Convention on , SALE OR ILLEGAL INTERCOUNTRY sometimes turned into complete ‘baby adoption from Guatemala at this time. applicable law and recognition of decrees ADOPTION OF CHILDREN farms’, and others work together to obtain . . . [A]dopting a child in a system that relating to adoptions, 1965). The draft As of the 1970s, while figures for domestic children and make profit out of the is based on a conflict of interests, that proposal for a Convention on the Rights adoptions plummeted in most European despair of parents, in particular women, is rampant with fraud, and that unduly of the Child, presented by Poland in 1979, countries,15 the steady growth in annual in difficult situations, sometimes by enriches facilitators is a very uncertain talked simply of the need to “facilitate” numbers of intercountry adoptions was deceiving them” (In: Smolin, 2010, p. 454). proposition with potential serious life- adoptions; by the time the final text of the matched by an equally steady growth long consequences” (In: Smolin, 2010, p. treaty was approved in 1989, the approach in expressions of concern about how A now well-documented16 and egregious 478). Ironically, it was in that very same had changed completely, with emphasis and why many (or most, in the case of example of this problem was that of year that adoptions from Guatemala to placed on ensuring the protection and some countries of origin) of the children Guatemala. Under the legislation in the USA peaked, at no less than 4,726 (US best interests of the child (UN CRC, 1989, concerned were coming to be adopted place, certification of the “abandonment” Department of State, 2016c). art. 21). Similarly, and building on the CRC, abroad. From the Vietnam “baby-lift” in of a child was subject to a lengthy court the 1993 Hague Convention is essentially the mid-Seventies to the more recent procedure whereas “relinquishment” As will be discussed more widely later in directed at safeguarding the rights of recognition of systemic and serious could simply be announced to, and the present study, this response of the US the child and preventing abduction, sale irregularities underlying adoptions from certified by, a notary public who was then Department of State neatly encapsulates and trafficking – aims that are explicitly countries such as , Ethiopia, able to identify prospective adopters for two key problems in tackling illegal set out in its Article 1. Even the title of Guatemala, Haiti, Liberia and Nepal, and that child. When intercountry adoptions adoptions. First, while the receiving this Convention was changed from its via the massive rights violations that began from Guatemala, it was therefore country may acknowledge the high risk of draft version. Instead of talking only characterised many of the initiatives to this latter procedure that was privileged adopting from a given country of origin, of “cooperation”, it now reads in full: adopt from Romania and certain other (whether or not the “relinquishment” it is prepared to allow such adoptions by “Protection of Children and Cooperation “countries in transition” in the Nineties, was genuine), to such an extent that it its citizens to continue once it has issued in Respect of Intercountry Adoption”. the file of documented abuses of the was used to process 98% of all adoptions a warning in that regard. Second, receiving adoption system grew unrelentingly and from Guatemala which therefore took countries do not act in unison: all other At present (November 2017) 98 States substantially thicker every year. place outside any safeguarding procedure. major receiving countries had long before Parties, including every significant As Smolin (2010) notes, “Guatemala’s ended their cooperation with Guatemala receiving country, have ratified or The Report produced by Van Loon (1990) notary system operated through private (see “Moratoria” at 4.B.ii below), precisely acceded to the 1993 Hague Convention. in preparation for the drafting of the 1993 attorneys, who were paid US$15,000- because of such serious concerns, but the However, as the present study Hague Convention spoke of the “extensive 20,000 per adoption by United States major one among them was still processing demonstrates, this has not resolved many networks” involved in illegal adoptions adoptive parents. The rise of Guatemala adoptions from that country, alone and on of the basic problems relating to illegal at that time: “In some countries lawyers as a sending country was a classic case of a large scale, for several years more. adoptions, not least because a significant and notaries, social workers (even in an adoption system fueled by inordinately proportion of all intercountry adoptions At international level, attempts were have continued to take place outside its 15 In Switzerland, for example, they fell from over 1,000 in 1980 to 192 in 2008; and in the Netherlands from 1,209 in 1970 to 259 being made to respond to those problems regulatory framework (see “Recourse to in 1980, and then to just 25 in 2008. 16 See for example CICIG (2010).

32 33 non-Hague countries of origin” under 4.B. MORATORIA: with a view to bringing it into line with to a moratorium – and in four cases on 4.C.v. below) . INDICATIONS OF the requirements of the 1993 Hague two separate occasions (UNICEF, 2009, FAILURE TO PREVENT Convention. Thus, at the time of writing, p. 8). In all but two cases, the decision In recent years, the global adoption ILLEGAL INTER- Senegal has had a moratorium in place to was prompted by serious concerns over landscape has shifted massively. And COUNTRY ADOPTIONS that end since December 2011 following widespread illicit practices spawned by as with any major transformation, its accession to the treaty, and Benin pressure from receiving countries. At adjustment to the new – and indeed still One response to the problems resorted to suspended intercountry adoptions as least one other country in the region fluid – situation creates its own, similarly by both countries of origin and receiving of May 2014 in order to set in place (Kyrgyzstan) has taken similar steps new, challenges. Unfortunately, these do countries has been the provisional structures and procedures that will enable since that time (in 2009). Indeed, in 2005, not necessarily resolve and replace those suspension of intercountry adoptions – its accession. Romania converted its third moratorium that were already there: in many cases often known as a moratorium. – decreed in 2001 in preparation for they simply constitute at best modified Arguably, moratoria provide – at least In other cases, preparing for Hague joining the European Union because versions of pre-existing problems, at in the long run and sometimes with accession may be linked with concerns of unrelenting pressure from certain worst additional issues to be tackled in an hindsight – one of the better hard over illicit practices as the reason for receiving countries to provide children for already substantial and challenging list. indicators available of the significance imposing a moratorium. Ghana, for adoption – into a standing prohibition of of illegal intercountry adoptions as a example, decided to make preparations for intercountry adoption by non-nationals. In general, the problems and challenges phenomenon, of failure to prevent them, acceding to the 1993 Hague Convention, for effective protection have long and thus of the best interests of the child requiring a suspension of intercountry In a similar vein, the phenomenon of been identified.17 The fact that they as “the paramount consideration” having adoptions that became effective in March illegal adoptions from Argentina in nonetheless persist, however, indicates given way to other considerations when 2013. In August of that year, it was also the 1980s led that country to impose a that efforts to tackle them may not only approving intercountry adoptions. noted that “the temporary suspension of minimum 5-year residence requirement have been insufficient in their force but child adoption was to protect the interest on adopters of its children; as a result it also insufficiently comprehensive and 4.B.i. of the vulnerable” and “became necessary has not felt it necessary or appropriate strategically misdirected. MORATORIA IMPOSED BY following the discovery of a worrying to become a party to the 1993 Hague COUNTRIES OF ORIGIN trend in the adoption of children which is Convention. Paraguay, faced with the same The main emphasis of efforts to date has Not all moratoria imposed by countries detrimental to their welfare” (Ghana News phenomenon but having nonetheless been tighter regulation and standardisation of origin themselves are necessarily a Agency, 2013). ratified that treaty in 1998, decided to of procedures and mechanisms, and the reflection of widespread illicit practices. apply strictly the principle of subsidiarity integration of stricter norms in legislation. In many instances, however, countries thereafter, and since that time has This has been done, however, without In the relatively rare instances when it is of origin have deemed it impossible apparently seen no need to process any any serious attempt to change certain directed at one or more specified receiving to ensure probity in the intercountry intercountry adoptions. historical and fundamental components countries, a moratorium is invariably adoption of their children under of the system itself, and the “environment” politically motivated and therefore falls prevailing conditions and in the face of, Since the turn of the century, several in which it operates, that foster practices outside the scope of this study.18 notably, pressure from receiving countries. African countries have also felt it involving, or tantamount to, the sale of Their responses take various forms and necessary to suspend intercountry children into adoption. That is why the In most cases, countries of origin have an ostensibly temporary or longer- adoptions in order to attempt to resolve present study focuses mainly on these suspend intercountry adoptions to all term effect. serious malpractice. Lesotho did so in factors rather than on increased regulation, receiving countries. Sometimes, the 2007, for a period of 18 months, after law enforcement and the criminal justice suspension is explained solely by the To first give a historical perspective of the evidence came to light of illicit practices. system. need for revamping the system, notably significance of this issue, it can be noted The following year, Togo suspended that, during the period between 1991 and intercountry adoptions when it was

17 See also, for example, Commissioner for Human Rights (2011), prepared by this author for the Council of Europe’s 2007, no less than 10 of the 19 countries discovered that, inter alia, declarations Commissioner for Human Rights, and the Commissioner’s recommendations on the subject. 18 In such cases, a moratorium may reflect a wider diplomatic conflict. If any alleged malpractice is involved, this is invariably of origin in Central and Eastern Europe of adoptability had not been subject to limited to concerns expressed about how adopted children are faring in the receiving country – including non-compliance and Central Asia were obliged to resort adequate background checks and children with reporting requirements as to the child’s well being in the adoptive family, as well as reports of serious abuse or neglect – rather than about illicit activities prior to the adoption.

34 35 had been wrongly placed for intercountry An unusual response, but with a officially subject to moratoria imposed by in recent years. One such is Australia, adoption. In early 2009, Liberia suspended similar effect, was implemented by several receiving countries on the grounds which halted its programme already intercountry adoptions, in good part the Democratic Republic of Congo of illicit practices are Cambodia, Ethiopia, in June 2012 stating, inter alia, that it in response to a 2007 report by the UN (DRC) when it was faced with a Guatemala, Haiti and Nepal. “could no longer be confident that the Mission in the country (UNMIL) that sudden vertiginous rise in the level of program would continue to operate in a confirmed long-standing allegations intercountry adoption applications Cambodia: the USA suspended the way that protected the best interests of of illegal overseas adoptions being caused by “the uncontrolled influx of processing of adoptions from Cambodia Ethiopian children” (Australian Central carried out through orphanages, as well prospective adopters and intermediaries in December 2001, in response to Authority, 2016). Switzerland followed as to the recommendations of a Special (whether accredited or not) [into] a “numerous concerns related to fraud in suit, as of August 2014, notably in light of Commission on Adoption set up in 2008 country of origin that was insufficiently Cambodia, as well as the lack of sufficient “fraudulent practices by actors involved in (ACPF, 2012b, p. 13). prepared to manage so many intercountry local legal frameworks and other child protection, linked to the absence of adoptions (inappropriate legislation, safeguards to protect the children's best consent on the part of biological parents A more recent example from Africa is lack of organisational and human interests. […] Based on the existing issues and the falsification of documents” that of Kenya. In November 2014, the resources. Malfunctioning and illicit of fraud and irregularity in Cambodia, (Swiss Central Authority, 2016a). France Kenyan Cabinet approved “an indefinite financial dealings quickly surfaced…” the Department of State (DOS) has imposed a moratorium as of April 2016, moratorium on inter-country adoption (Direction de l’Adoption - ACC, 2015, reconfirmed the suspension of adoptions considering, “in agreement with the local of Kenyan children by foreigners.” author’s translation). While DRC courts under the Hague process in Cambodia” authorities, that the legal and ethical Its statement reportedly noted that have – intriguingly – continued to issue (US Department of State, 2009). Several security of procedures was no longer Kenyan law does not define child sale, adoption certificates, the competent other countries followed suit, including assured” (French Central Authority, 2016). child procuring, child trade and child authorities have generally refused to grant Belgium, France, Luxembourg and the laundering as part of child trafficking, exit visas to the children concerned since Netherlands. Apparently the last to do Guatemala: The Netherlands suspended which “has in effect put Kenyan children September 2013, although pressure from so was the United Kingdom in 2004, “in adoptions from Guatemala as of February at high risk as it creates a loophole for receiving countries has gradually led to response to evidence that the safeguards 2001 “because of trafficking and sale fraudulent, vested interests, masquerading more and more cases being approved as of in the Cambodian adoption system were of children” (Dutch Central Authority, through ownership of children homes, November 2015. insufficient to prevent children being 2016). The UK introduced a suspension adoption agencies and legal firms adopted without proper consents being of adoptions from Guatemala in 2007, representing children, and adopters, to 4.B.ii. given by their birth parents and improper which is still in force, citing “evidence engage in the unscrupulous business of MORATORIA IMPOSED BY RECEIVING financial gain being made by individuals demonstrating that: there are insufficient under the guise of COUNTRIES involved in the adoption process.” Among safeguards in the Guatemalan adoption charity” (Mathenge & Otiento, 2014). For their part, receiving countries may the specific areas of concern mentioned system to prevent children being adopted decide to impose moratoria on specific were “the systematic falsification of without proper consents being given For its part, Nepal – in fact already under countries of origin in the light of Cambodian official documents related and improper financial gain being made an almost complete moratorium set in evidence that systematic or widespread to the adoption of children” and “the by individuals in the adoption process. place by receiving countries – announced irregularities have been taking place. procurement of children for intercountry In particular that: there is a trade in on 26 May 2015 that, until further notice, Moratoria in such circumstances therefore adoption by facilitators, including by babies being sold for overseas adoption; it was prohibiting all adoptions, whether constitute an implicit admission of coercion and by paying birth mothers and mothers being paid, or otherwise domestic or intercountry, in order to allow their failure to ensure that intercountry to give up their children” (Department encouraged, to give up children for for the reunification of families separated adoptions take place solely in the best for Education, 2010, p. 3). All these adoption” (Department for Education, by the earthquake that had hit the country interests of the child and in conformity suspensions were still in place in 2016 2010). Switzerland also has a long- four weeks previously, and to avoid any with relevant international standards. despite Cambodia’s accession to the 1993 standing moratorium in place regarding child trafficking (Swiss Central Authority, Hague Convention in 2007. Guatemala. 2016b). From information made available, the major countries of origin from which Ethiopia: several countries have Haiti: In view of the serious and intercountry adoptions were, in 2016, suspended adoptions from Ethiopia long-standing concerns over illegal

36 37 adoptions from Haiti, a number of fraud being found regarding, in particular, 4.C. CURRENT CONDITIONS fallen. Sometimes this has led to a drastic receiving countries decided many the declaration of adoptability of children FOR A “PERFECT reduction in intercountry adoption years ago not to develop or continue being proposed for intercountry adoption. STORM” IN INTER- numbers, as in the cases of China and adoption programmes with that country. COUNTRY ADOPTION Madagascar, for example. Significantly, no Scandinavian country Other countries of origin are currently has recently had such a programme – subject to suspension by at least one As David Smolin puts it in his Foreword The downturn of worldwide intercountry Denmark had a very limited programme receiving country because of concerns to the “Grey Zones” study, “a large adoption numbers began as of 2004; (an average of 2 children per year over the probity of adoptions. proportion of intercountry adoptions from their peak of 45,383 in that year, from 2000-2004) but has processed no These include: […] arise in circumstances where there they steadily fell to just 12,000 in 2015, adoption from the country since that have been severe violations of the rights representing a drop of over 75% (Selman, time. Italy’s sole agency authorised to India: applications to adopt Indian of both children and adults, due to 2017). This sustained and massive decline process adoptions from Haiti decided to children were placed “on hold” by poverty and/or discrimination based on has progressively led to an “intercountry halt its programme in 2007 because of the Australia as of October 2010 following disability, gender, race, or ethnic group. adoption landscape” for which no one – problems, and Spain suspended Haitian allegations of complicity in illegal Thus, where children’s rights and human prospective adopters, agencies and Central adoptions that same year, citing lack of adoption practice on the part of rights are respected and successfully Authorities – was in the slightest prepared. guarantees and of a reliable competent the competent authorities, and this implemented, there are very few children That is in good part why the present authority. suspension remains in place given that the legitimately in need of adoption. Further, situation is one of high risk for illegal Australian Authorities are not yet satisfied while adoption is theoretically a means adoptions. Following a short suspension in the that safeguards to protect children to ameliorate rights deprivations and to wake of the January 2010 earthquake, the in India are functioning effectively implement the best interests of the child, It may seem paradoxical that a decline Haitian Authorities indicated that new (Australian Central Authority, 2016). as actually practiced it easily becomes in intercountry adoption numbers – and intercountry adoption applications were driven by the desire of adults for children, thus of the numerical significance and being accepted again as of April. The UK Uganda: the Netherlands suspended and by financial incentives. Thus, there overall impact of the measure – should be then indicated, in October that same year, adoptions from Uganda in June 2012 is a severe temptation to create systems cause for special concern today in terms of that it would not process adoptions from citing an inadequate relinquishment which use intercountry adoption to illicit practices. There are, however, several that country. It motivated its decision by procedure combined with an inadequate address problems such as poverty and reasons for considering that we now need noting that “the government authorities system of counselling the biological discrimination, when from a child rights to confront the multi-faceted conditions in Haiti that normally deal with child parents (Dutch Central Authority, 2016). and human rights perspective it should of a “perfect storm” as regards illegal protection and are responsible for the In addition to demonstrating that illegal be mandatory instead to remedy the adoptions – both despite and because of administration of intercountry adoptions adoptions are still very much a concern, underlying rights and equality violations” the decline in the number of children are not in a position to ensure that the the clear and very significant conclusion (Fuentes, Boéchat, & Northcott, 2012, p. 3). being adopted abroad. correct processes are being followed. There from the above is that, with the notable are indications that the disaster has made exception of the response to Nepal, A sizeable majority of significant The five following phenomena, developed a system which was already inadequate suspension decisions are unilateral, countries of origin are now parties to the in more detail later in the study, can be worse” (UK Government, n.d.)(see also uncoordinated and often belated. This 1993 Hague Convention. On acceding highlighted among those reasons. section on post disaster situations at 5.B. reflects a troubling lack of common to the treaty, and seeking to comply below). understanding or volition on the part with the obligations it sets out, these 4.C.i. of receiving countries as to what the countries generally take measures that “DEMAND” AND “SUPPLY” Nepal: In an unprecedented move, all protection of children’s human rights directly or indirectly reduce recourse Effective demand involves not major receiving countries decided, demands in the sphere of intercountry to intercountry adoption for their just harbouring a wish but having in 2010, to halt the adoption of all adoption. The ramifications of this lack children, including the more systematic simultaneously the desire, means, Nepalese children who had been declared of consensus for the sale of children and application of the subsidiarity principle. willingness and opportunity to secure “abandoned” – which was the case for other illicit practices underlying illegal As their number has grown, therefore, so something under given conditions. the vast majority – in light of widespread adoptions are discussed later in this study. the number of “adoptable” children has The demand for adoption from

38 39 abroad is increasingly inhibited in its including, with specific reference to the and other medical conditions (minor, 4.C.v. “effective” form by its final component, subject of this study, adequate responses to correctable, more severe, specified or not), RECOURSE TO NON-HAGUE “opportunity”, because of the decline in concerns over suspected illegal adoptions. age (above 5 years or an older threshold) COUNTRIES OF ORIGIN the number of “adoptable” children. That This issue is all the more important in and sibling groups (of at least two or While all major receiving countries today frustrated demand is therefore forced to relation to the increasingly prevalent three). are parties to the 1993 Hague Convention, become “latent”, but when an opportunity adoption of “children with special needs” this is not the case for all currently arises it will be expressed. (see below). Arranging the adoption In the context of the present study, the significant countries of origin. In response of these children requires appropriate only relevant consideration concerns the to the pressure created by the increasingly The increasingly limited legal “supply” professional expertise and experience possible effects of these policies on the unsatisfied expectations of prospective of children for adoption abroad sets the either within or immediately available likely incidence of illegal adoptions. This adopters, Central Authorities in a number scene for attempts in countries of origin to the agency as a vital component of that impact must not be under-estimated. Most of receiving countries have at different (though in liaison with actors in receiving agency’s task as a service provider. prospective adopters are understandably moments strengthened efforts to develop countries) to provide that missing link looking for young healthy children. When adoptions from non-Hague countries of of “opportunity”. This is a context where 4.C.iii. no such children are “available”, some origin where regulations and procedures illegal adoptions can flourish if effective INCREASING FEES AND COSTS are clearly persuaded, reasonably or not, may be less strict. action is not taken. Because of the above and for other to adopt children with “special needs”. reasons linked essentially to the As regards the remainder, however, two Although non-Hague adoptions seem 4.C.ii. growing disconnect between “supply” responses of particular concern have overall to be gradually declining as a AGENCIES FIGHTING FOR SURVIVAL and “demand”, the overall cost of an been observed as a result of incentives percentage of the total, even today they Non-State bodies have always played, intercountry adoption that agencies to “enable” intercountry adoptions by all still account for more than a third of historically and rather uniquely, a pivotal charge to prospective adopters has steadily means. the annual totals to many receiving role in this “public child protection increased – including the part thereof countries: the French-speaking region measure” (HCCH, 2012a). Most are to be disbursed in the country of origin. One such response is to provide access, of Belgium reports approximately 40%, dependent to a greater or lesser extent Some countries of origin are indeed upon payment of an additional “unofficial France 37.7%, and the USA 35.5% (Belgian on income derived from fees paid by taking advantage of the situation by fee”, to a select list of children without Central Authority, 2016; Ministère des prospective adopters. It follows that, when setting increasingly burdensome financial special needs or with other characteristics Affaires Étrangères, 2015; US Department “opportunities” for intercountry adoption conditions for adopting their children. that may correspond better to the of State, 2015b). Sweden reports a decline, those that are most dependent on desires of the prospective adopters. The proportion of “about one-third” (Swedish such fees are fighting for survival – indeed This is clearly an additional reason other is to secure a medical certificate Central Authority, 2016). Figures for several have had to disband because of the for financially-motivated actors to that unwarrantedly attests to a child’s the Netherlands, however, show a lower current context. There is a clear risk that take advantage of the system, either by “special needs” so that he or she may be percentage, with a fall from 33% in 2011 to the “survivors” may be drawn into seeking inserting a procured child into that system “prioritised” for intercountry adoption – just 23% in 2015 (Dutch Central Authority, children for their clients at (almost) all or by “cloning”, influencing or exploiting in some cases including because the child 2016). costs. The head of one adoption agency the system at various stages. will be rejected for domestic adoption on has indeed expressed his concern that the that basis. Taking advantage of arranging adoptions most professional and ethical agencies 4.C.iv. from countries that do not wish or are might be among the first to disappear PRIORITY TO CHILDREN WITH What is at stake in this regard can be unable to commit to the 1993 Hague because they would not be willing to take “SPECIAL NEEDS” illustrated by statistics for intercountry Convention clearly involves enhanced that course (Gudim, 2014). More and more countries of origin are adoptions into France for 2015: every risks in terms of illegal adoptions. giving priority for intercountry adoption single adoption from Brazil (20/20), Chile Another effect of agencies being to children designated as having “special (8/8) and Ukraine (5/5) was designated as increasingly poorly-resourced may be needs”. This terminology has different “special needs”, as were almost all from that they are unable to provide a desirable precise interpretations from one country Vietnam (98/108) (Ministère des Affaires level of professional service and support to another. It usually refers to disabilities Étrangères, 2015a, p. 19).

40 41 5.A. because they have no officialised PART 5: FACTORS INCREASING GENERAL identity. VULNERABILITY • legislation facilitating relinquishment RECOGNISING AND TACKLING Conditions in most countries of origin or abandonment render certain groups of their population It is interesting that, as noted THE “ENABLING ENVIRONMENT” particularly vulnerable to the initiatives previously, the legislation of Guatemala of those seeking to procure children for – which has a very high birth FOR ILLEGAL ADOPTIONS adoption. These conditions are many and registration rate of 97% – made the vary considerably in nature. Not all apply recognition of abandonment far more to every country of origin. The following difficult than that of relinquishment, are some key examples of conditions that leading to “relinquishment” being To the extent that they have been put in place appropriate legislation and can constitute an enabling environment the preferred channel for securing recognised at all, illicit acts leading to credible systems and procedures to satisfy for illegal adoptions. illegal adoptions (UNICEF, 2013). In illegal adoptions – such as those listed Hague requirements takes on a new light. contrast, Nepal, which has the much in Box 1 – have too often been viewed The long-standing reluctance or refusal of • vulnerability and marginalisation of lower rate of 42% (and just 36% in and treated essentially as ad hoc or some countries of origin to accede to the given groups such as ethnic minorities rural areas) makes it easier to secure a organised criminal activities committed 1993 Hague Convention similarly raises • discrimination towards single/unwed certificate of abandonment than one by individuals or groups. As a result, questions as to who may be benefitting mothers of relinquishment, so the problem of responses to widespread problems of from the non-compliant system in • vulnerability due to poverty illegal adoptions from that country these kinds have largely failed to re- place. But it also brings to the fore The Guidelines for the Alternative Care have been linked almost entirely to establish confidence in the intercountry another question: how far are receiving of Children specify that financial and false declarations of abandonment. adoption process after such problems were countries prepared to go, individually material poverty alone, or conditions • Inadequate protection system discovered. and collectively, in making their vital directly and uniquely imputable Prevention of family breakdown contribution towards eliminating the sale to poverty, can never be invoked as through, for example, formal support What has not been tackled – with of children and associated illicit practices sufficient justification for placing or systems and the promotion of informal sufficient candour, vigour and political that distort the whole purpose of adoption receiving a child in alternative care kinship care arrangements is often will, at least – is the fact that former and have plagued intercountry adoption (and logically all the more so where lacking, meaning that families in and current State policies – on both the in particular? adoption is concerned) (UN General difficulty are often easily persuaded “receiving” and “origin” sides – enable Assembly, 2010). Poverty rather than to relinquish their child. Equally, and even condone or promote these acts. The focus of responses so far has been on “orphanhood” is nonetheless still cited child protection staff are too few in In many cases, States themselves are the legislation, structures and procedures to as the main reason for which children number and under-resourced (in direct beneficiaries of “unreasonable” “contain” the problems associated with come into care and “require” adoption. terms of both salary and the means to financial conditions imposed. Moreover, current practice. From now on, it has to • lacunae in birth registration/civil conduct their work) to systematically as long as it is accepted that the cost of be the elimination of the root causes of registry systems safeguard children’s rights in relation legal adoptions is in the realm of tens of those same problems: “effective demand” In many countries of origin, birth to alternative care and adoption. These thousands of dollars, it is almost inevitable that is allowed to outstrip “natural supply”, registration rates are extremely low (e.g. problems are reflected in the words of that sums of that ilk will prove irresistible and the illogical and unusual financial Liberia 4%, Ethiopia 7%, and Uganda former EurAdopt Chairperson Maria to those willing to procure children for implications of being willing to care for a 30%) (UNICEF, 2013). Even where Doré: "Intercountry adoption may be intercountry adoption under conditions child through adoption. rates are higher (e.g. Cambodia 66%, a desirable outcome when the child better able to meet “demand”, whatever the Haiti 80%), a significant proportion protection system in the country of system and safeguards in place. This part of the study examines the factors of children – invariably those in origin is working properly" (Doré, behind those situations where illicit marginalised or underprivileged 2016). This is a telling statement on Under those conditions, the apparent practices constitute a special challenge. groups – are made even more behalf of the community of adoption inability of several countries of origin to vulnerable to sale and illicit practices agencies. It is precisely from countries

42 43 where those services are weak that multiple trips to the capital or • a poorly paid and under-resourced on adoptions, both domestic and an increasing proportion of children elsewhere. This clearly discourages civil service intercountry, in the immediate aftermath adopted abroad are coming. As a many potential domestic adopters, When civil servants – including law of emergency situations. result, there is a heightened risk that leaving the children concerned to be enforcement officials and the judiciary necessary safeguards will not be in “available” for adoption abroad. – receive poor remuneration and work There are two key reasons for this stance. place and that children will be placed • the alternative care system relies under difficult material and logistical First, children often become separated for adoption unjustifiably and through essentially on privately-run conditions, the risk of corruption from their families and communities illicit practices. residential facilities grows considerably. This can result in as a result of such events, and might • adoption is an unfamiliar practice The link between the risk of illegal “unofficial fees” for “expediting” the therefore unwarrantedly be seen as In many societies – especially, but not adoptions and the reliance on issuance of documents, for example, or “adoptable” before necessary and feasible only, in Africa and Asia – the concept privately-owned residential facilities in payments for their falsification or tracing efforts have been carried out of formal full adoption is unknown or as the only or main available form of for blindly rubber-stamping papers at and exhausted. Second, the capacity barely known in practice, even when it formal alternative care for children different steps of the adoption process, as and influence of competent authorities figures in the national legislation. The has long been demonstrated in many evidenced in many countries in the past, are frequently diminished – sometimes word “adoption” – to the extent that it countries including Cambodia, including Cambodia and Kazakhstan. severely so – in such circumstances: rule even exists in a language – may be used Ethiopia, Haiti, Liberia and Nepal. of law cannot be assured, vital documents as the equivalent of care by kith or kin. A senior official in Uganda notes, The glaring problem is that too often, even and archives may have been destroyed, This has two key ramifications. First, in for example, “a number of unethical in its “legal” form, intercountry adoption and a wide variety of largely unsupervised these societies, intercountry adoption practices linked to the establishment mediation has actually taken advantage actors may be operating. clearly cannot be made subsidiary and operation of children’s and baby’s of conditions such as these, rather than only to domestic adoption as such. homes, and the process of adoption recognising and addressing them. This The response to the devastating December Second, the definitive and total rupture [including] a deliberate recruitment of makes it all the easier for those involved 2004 tsunami seemed to confirm that of family relations that intercountry children from within the community in illicit practices to do likewise and consensus. The Authorities of the main adoption implies is inconceivable into child care institutions with thus to “melt” almost seamlessly into the affected countries immediately barred to families in these communities, so prospects of financial gain through adoption process. the cross-border movement of children. they are more easily manipulated into adoption and legal guardianship; Intergovernmental organisations such accepting or consenting to a measure and relinquishment of parental The final, and special, factor considered here as UNICEF and the HCCH joined with whose consequences they cannot fully responsibility under false/pretentious is the question of adoptions in emergency concerned non-governmental bodies grasp. circumstances” (Karooro Okurut, or post-emergency situations, and it indeed such as ISS and Save the Children in • domestic adoption is not facilitated or 2014). When the State is not the main clearly highlights how conditions of issuing strong statements against any prioritised over intercountry adoption provider or financer of alternative care, vulnerability may be used to the advantage attempt to remove children for adoption Even in countries where adoption it will likely not have the resources of illicit practices in adoption. abroad. Several receiving States made it is more familiar, there are often no to ensure necessary monitoring known that they would not process any serious attempts to promote and and inspection of the privately- applications to adopt children from the facilitate it domestically. Although the run facilities either. In Uganda, the 5.B. SALE OR ILLEGAL countries in question. fees and costs will usually be only a number of the latter rocketed from ADOPTION IN ARMED fraction of those set for intercountry just 36 in 1993 to 560 officially known CONFLICT AND Just five years later, however, reactions adoption – which itself leads to facilities in 2015, with upwards of 200 NATURAL DISASTERS to the January 2010 earthquake in children being “reserved” for the others in operation “off the radar” Haiti demonstrated the clear limits to lucrative intercountry path – they (Kyagulanyi, 2016). The problem can In recent decades, virtually unanimous willingness to maintain that consensus can still be prohibitive for almost all be compounded when facilities are – as agreement has developed in the in practice. As a result, even minimum the country’s citizens. The adoption is often the case – funded by foreign international child protection community safeguards against illegal adoptions were process may also be complicated and bodies, often with links to intercountry that a moratorium should be placed abandoned.19 burdensome, involving for example adoption. 19 For a full descriptive analysis of adoptions from post-earthquake Haiti, see: Dambach & Baglietto (2010)

44 45 When the earthquake occurred, unlike the adoption”. This was considered to be more the system in place in “normal” times features of an “enabling environment” countries affected by the tsunami, Haiti a statement to appease the international before the earthquake in no way fulfilled for illegal adoptions, described above, was already a very significant country of community than a decision with intrinsic international standards, disregarding even they are frequently thwarted by deliberate origin for intercountry adoptions. As of juridical value in Haiti. In particular, the the minimal protections it provided was acts that actually tend to reinforce that 2008, it had become, for example, by far term “process… engaged” (“processus… more than questionable. environment and magnify its enabling the most important country of origin for entamé” in the original French-language effects in favour of illicit practices. French adopters. In addition, the annual document) was vague enough to be In an earlier case, the Rwandan number of intercountry adoptions had interpreted in some quarters to include, Authorities sought the return from Italy The following are examples of such acts bucked the worldwide trend of decline for example, children deemed to be of a group of 41 children who had been which variously involve, ignore, tolerate, after 2004 (overall figures for Haiti that “adoptable” but not having been matched “evacuated”, without parental or family explicitly permit, encourage or impose year were 1,082, and rose to 1,205 in 2009). with adoptive parents, let alone with an consent, from the country in the wake practices that perpetuate or accentuate a Consequently, there were many hundreds adoption order from the court. of the 1994 genocide and were adopted context favourable to illegal adoption. of adoptions at some stage of the process by families in a northern Italian town when the earthquake struck. The second was the requirement that in 2000. It was found that the adoptions 5.C.i. the Prime Minister sign off on all had taken place without due procedures INITIATIVES TAKEN AND PRESSURE This buoyant situation is in good part intercountry adoptions. In no way being followed, and notably without the EXERTED BY ACTORS IN RECEIVING explained by the fact that, at the time, could this be seen as an effective child consent of family members (virtually COUNTRIES Haiti was not party to the 1993 Hague protection safeguard, all the more so all the children had at least one parent To the knowledge of the author, over Convention, a fact which allowed it to where hundreds of adoptions were being or close relative willing and able to look the past four decades there are no maintain an adoption system and process “submitted for approval” within a matter after them) and the Rwandan Authorities documented cases of a potential or actual that was widely recognised as, at best, of weeks of the disaster. (Human Rights Watch, 2003). State of origin spontaneously requesting wholly inadequate for preventing illegal the adoption of its children abroad – on adoptions.20 What followed was the “emergency” In light of all the above, it was therefore the contrary, many countries of origin transfer abroad of hundreds of children some consolation to see that Nepal – have expressed concern at the pressure to It was therefore against this dual whose adoptions were “expedited”, not in already the subject of a general moratorium which they have been subjected to make background of high “effective demand” the sense of the process being speeded up on intercountry adoptions imposed children available for this. It follows that and a system that had undeniably long but in that of the normal legal procedures by receiving countries – announced the development of intercountry adoption been “tolerating” illegal adoptions and safeguards being circumvented. on 26 May 2015, four weeks after the has in principle taken place solely at the that, in the immediate aftermath of the Within less than a month of the disaster, earthquake that had hit the country, that initiative of actors in receiving countries. earthquake, several receiving countries at least 450 children had been the subject it was prohibiting all adoptions, whether presented their desire to “expedite of “expedited” transfer abroad. Neither domestic or intercountry, until further One example of this, which is similar adoptions” to the severely weakened the Haitian Authorities nor those of the notice. The reasons given were to enable to the experience of many countries Haitian Authorities. While the latter set receiving countries were able to verify the reunification of families separated worldwide, is the way that intercountry conditions for intercountry adoptions the true family status of those children – by the earthquake and to avoid any child adoption began and went on to develop in that were tantamount to the temporary an essential step given the incidence of trafficking. Cambodia. suspension of “new cases”, they agreed manipulation, fraud and undue payments to two provisional measures – with, in that characterised adoptions from Haiti at In June 1987, eight years after the practice, regrettable implications. that time. 5.C. ENABLING FACTORS ousting of the Khmer Rouge regime, the The first was a presidential announcement THAT EXACERBATE Cambodian Council of Ministers issued a that “only children for whom the It will never be possible to determine what ILLEGAL INTERCOUN- decision allowing the adoption of infants intercountry adoption process had been proportion of the “expedited” adoptions TRY ADOPTIONS and children abroad (SSR, 1987). This engaged, i.e. a regular adoption procedure, resulted from the sale of children or seems to have been mainly a response may be considered for intercountry other illicit practices. However, since Whatever efforts may be made to mitigate, to requests – whatever their validity – rather than take advantage of, the various made by staff members of international 20 See for example the UK statement regarding a moratorium at 4.B.ii above.

46 47 organisations who were working in 30 children, but we refused. We are not 402 (Bureau of Consular Affairs). These for adoption in countries of origin that Cambodia and who, on ending their absolutely against intercountry adoption adoptions occurred haphazardly, were are parties to the 1993 Hague Convention, mission, wished to return home with an under appropriate conditions, but there is generally unregulated and children came actors in receiving countries seek children adopted child. reluctance to engage in it. The population into care without the protection of proper for adoption from non-Hague countries. of Cambodia has fallen to 8 million and legal procedures” (Holt International, The ramifications of such initiatives These “individual adoptions” continued we need our children for the country’s 2005, p. 4). A total of 319 went to France in terms of the risk of inducing illegal discreetly at first. In 1990, it was reported future” (Visalo, 1992, p. 24). from 1995 through 1999 (French Central adoptions are considerable and serious. that “the intercountry adoption of Authority, 2016). children is now apparently being allowed According to the Cambodian Authorities, - INHERENT DANGERS from Cambodia. The country has no 163 “” were adopted by foreigners When Romania was envisaging the The greatest danger in most cases stems legislation on this practice, and it is feared between 1987 and 1994 (Committee on the prohibition of intercountry adoption after from the very reasons for which the that certain development aid agencies are Rights of the Child, 1998, para. 115) – thus, the turn of the century, the then head of country in question is not a State party to encouraging the Cambodian authorities apparently, some 76 between April 1992 the Italian Central Authority stated that the 1993 Hague Convention. Questions to use their services for out-of-country and December 1994, despite the reported the new law would “not be a problem for posed by the Swedish Central Authority are placements. Case-by-case authorisation moratorium (see above). The Government Italian families, who will go elsewhere to pertinent here: “Is it because its legislation is reportedly given by the Council of admitted that “[a]doption in Cambodia secure an adoption” (Cavallo, 2004). and administration fall short of the Ministers without there being any proper is not yet well organized. In particular, fundamental principles of the Convention? system for safeguarding the rights and internal domestic procedures are not The Authorities of certain receiving Is there something in the Convention interests of the children” (DCI, 1990, p. 19). clear and the system of information on countries often take it upon themselves to that the country is negative towards and adoptive families and adopted children make a direct pitch for more children to does not want to adhere to?” (Swedish However, the 1989 law on marriage and is not efficient. The State is considering be made available for adoption, through Intercountry Adoptions Authority, 2015, p. family had set the basis for regulating the advisability of amending the law official missions to countries of origin that 42). To which can be added, in particular, adoption, and this came into being and formalities pertaining to adoption” might respond positively. At one point (in “Does the non-Hague status quo in a through a Council of Ministers document (Committee on the Rights of the Child, 2004), for example, the French Minister for country of origin serve the financial issued in March 1991 (Council of 1998, para. 117). the Family travelled to Vietnam and China interests of certain groups or persons Ministers, 1991). The document specified to meet his counterparts with the explicit involved in intercountry adoptions?” the conditions for adoption by foreign After a short apparent lull, “in 1997, there aim of fulfilling the “humanist ambition” citizens (Committee on the Rights of the [was] strong interest in child adoption of doubling the number of intercountry The resistance to Guatemala’s accession Child, 1998, para. 113), but by August that from Cambodia [by] people from adoptions to France (“Un plan pour came notably from lawyers, and to that same year, the Government of Cambodia France, America, Canada, Australia and doubler”, 2004). In FY 2015, the Special of Haiti from the crèches and other had reportedly “frozen” intercountry Germany” (Cambodia Central Authority Advisor for Children’s Issues at the US parties, for example. That resistance was adoptions (US Department of State, n.d.). for Inter-country Adoption, n.d.). Indeed, a Central Authority travelled to 15 countries grounded essentially in the desire of significant increase in adoption numbers “to support the Department of State’s those concerned to retain the privileged At a regional meeting in April 1992, the was noted as of that year, a fact partly efforts regarding intercountry adoption” position and income from which they then Deputy Minister for Foreign Affairs attributed to “transferred demand” (US Department of State, 2015a). The were able to benefit outside the Hague of Cambodia stated: “We receive more resulting from the 1996 suspension of perception of initiatives such as these will framework. Proposals to allow Ukraine and more requests regarding intercountry intercountry adoptions from neighbouring understandably be that they are placing to accede to the Convention have been adoption. There have been 87 such Vietnam. “In 1998 international adoptions pressure on the countries concerned. presented by the Authorities at least three adoptions authorised to date, the majority from Cambodia, including adoptions to the times to the Rada (Parliament) but have going to the USA,21 with France as the United States, increased dramatically. Over 5.C.ii. so far been forcefully and successfully second biggest receiving country. One a four year period (1996-2000) [annual] RECOURSE TO NON-HAGUE STATES opposed on each occasion. US-based agency wanted to take out 20 or adoptions to the U.S. increased from 30 to OF ORIGIN As noted previously, as a result of the Whatever the reasons for non-accession, decline in the number of children placed the system in place in a non-Hague 21 According to the data of the US Department of State, 60 intercountry adoptions from Cambodia to the USA were recorded in 1991, but none was recorded in either 1990 or 1992.

48 49 country of origin is therefore unlikely they should correspond to the fundamental parents and adoptive parents the same funding for those facilities. This was to be able to provide the full panoply of principles of the Hague Convention protection as the provisions of the Hague borne out in Ethiopia, for example, where necessary and adequate protections.22 As so as to attain the ‘Hague standard’ for Convention. There is also a risk that such ISS noted with concern already in 2010 many examples in the present study show the adoptions. Agreements that do not agreements will not be comprehensive that “there was information suggesting clearly, in such circumstances the risk of correspond to or indeed work against or detailed enough to cover all the that there were an increasing number of child procurement and illegal adoptions these principles; for example, by including prerequisites for the adoption procedure unaccredited orphanages and transition is very high. As also described elsewhere requirements of financial assistance to the to meet the required standard. […] Sweden homes, usually operated by international in this study, the already high general risk State of origin, must not be concluded” and other receiving countries that agencies from which children can be becomes to all intents and purposes a (Swedish Intercountry Adoptions have acceded to the Hague Convention directly adopted” (Fuentes et al., 2012, p. certainty if the number of submitted and Authority, 2015, p. 33). have an ethical obligation to ensure 92). successful applications to adopt is allowed children from non-Hague countries the to surge rapidly. The MIA report points out the “real risk same legal protection as children from Prior to acceding to the 1993 Hague of bilateral agreements cementing a Hague countries. This is in line with the Convention in 2013, and as in a number - BILATERAL AGREEMENTS WITH NON- partnership between countries. This may recommendation of the 2000 Special of other countries – including, but by no HAGUE COUNTRIES result in a country of origin experiencing Commission in The Hague to apply means limited to, Liberia and Vietnam Receiving countries have often sought pressure to put up children for adoption. the same standards and safeguards to – Haiti had in place a system that allied to mitigate these risks by drawing up If this risks resulting in biological adoptions from both Hague countries privileged direct working relationships bilateral agreements with non-Hague parents not receiving the support they and non-Hague countries” (Swedish between agencies and “crèches”, money countries, and in some cases the latter would otherwise have gotten in order Intercountry Adoptions Authority, 2015, transfers and the attribution of unusual have also requested or required accords of to be able to keep their children, or that p. 42). powers to the private childcare facilities that kind. Experience has shown, however, the principle of subsidiarity is not taken involved. The unsurprising result was a that such agreements may fail to set seriously enough in the country of origin Finally, the case of Ireland is noteworthy sanctioned system of illegal adoptions. adequate and comprehensive standards, […] this entails risks for the rights of the in that its 2010 Adoption Act prohibits Thus, for example, three US agencies dissuade accession to Hague, and tend to child and the biological parents. […] If adoptions from non-Hague countries of boasted an arrangement with a specific “cement” cooperation on a relatively long- the purpose of agreements is purely to origin unless a bilateral agreement is in “crèche” that, according to the website term basis regardless of need. meet “the demand for children” in the place. No such agreement is operative at of one of them, was “able to expedite the receiving countries, this is very serious. present, and therefore only one (pipeline) adoption process” for a fee of US$ 16,000 In 2015, the Swedish Central Authority According to MIA's assessment, this non-Hague case was processed in 2015 “compared to the standard US$8,000 to (formerly MIA) carried out a thorough represents a clear threat to the rights of out of a total of 85 that year (Irish Central US$9,600 the other orphanages in Haiti analysis of the potential positive and the child as well as its biological parents' Authority, 2016). charge. However, because this particular negative ramifications of drawing up rights”(Swedish Intercountry Adoptions is able to expedite the adoption tailored agreements with non-Hague States. Authority, 2015, p. 41). 5.C.iii. process, cases are usually completed in In its report on that exercise, MIA (now RELATIONSHIPS BETWEEN CARE 12 to 14 months rather than the normal MFoF) notes that it “shares the concerns The report also pinpoints “a risk that FACILITIES AND ADOPTION AGENCIES 18 to 24 month timeline” (WIAA, n.d.). that have been expressed regarding the States that are not party to the Hague Any adoption system that requires, creates Now, there is no mention of expedited disadvantages of entering into agreements Convention will fail to accede if they can or allows a special relationship between an adoptions but that agency’s “foreign fee” with non-Hague countries. Agreements instead cooperate within the framework adoption agency and a child care facility – for an adoption from Haiti varies from with non-Hague countries may expose of bilateral agreements adapted to the even one that ostensibly may not involve US$ 13,000 to US$ 15,000 “depending on the child and its rights to risk. Only if very conditions in their own country. However, a financial element – issues an open orphanage” (WIAA, n.d.), even though the good reasons are presented should such there is a danger that the agreements invitation to egregious malpractice. Haitian Central Authority charges a large agreements be considered. And if they are, do not assure the child, the biological The risk is even higher when adoption compulsory flat sum for child care during agencies have arrangements or the adoption process (see under next

22 According to both the Australian and Swedish Central Authorities, exceptions here can validly be made for South Korea – agreements with specific care facilities section). which has signed the 1993 Hague Convention and is preparing ratification – and Taiwan where procedures are deemed to be Hague-compatible but the country is prevented from becoming a State party to the treaty in light of its international and/or are the main or only source of diplomatic status. (Communications of June 2016 on file with the author)

50 51 Other financial arrangements between incited to profit to an equal degree adopted”. In its Concluding Observations The listing of current (2016) fees charged agencies and residential facilities are from those arrangements through the to Spain, for example, the Committee on for adoptions from Haiti by one of the discussed in the section below in the procurement of children for “illegal” the Rights of the Child recommended US accredited agencies includes an item overall context of payments for child care. intercountry adoption that the intercountry adoption process called “humanitarian aid account” to be clearly differentiated from any aid which US$ 1,500 are due from prospective 5.C.iv. The clear exposition of the arguments in programme in countries of origin adopters (All Blessings International, FINANCIAL TRANSACTIONS IN this section is challenging. Many of the (Committee on the Rights of the Child, n.d.).23 There is no equivalent item or cost “LEGAL” INTERCOUNTRY ADOPTIONS relevant issues overlap and terminology 2010). The Committee thereby emphasised in the official “Table of Costs of Adoption” According to research conducted by used by information sources is not the underlying risk of corruption and issued by the Haitian Central Authority, the Donaldson Adoption Institute in necessarily consistent. However, the other illicit activities that can develop so the question must be raised as to why the USA, “more than two thirds of the attempt is made here to deal with them, when there are such programmes in an additional “humanitarian aid” fee adoption community believe privilege grosso modo, under four basic categories: conjunction with intercountry adoption. should be charged and who is to be the and money distort adoption” (The beneficiary. Donaldson Adoption Institute, 2016). This • payments to an official body in The Australian Central Authority notes section of the study looks at probably the the guise of “development” or that the primary concern leading to its The current situation regarding Vietnam most significant way that the “enabling “humanitarian” aid suspension of adoptions from Ethiopia is disturbing because the country is now a environment” for illegal adoptions • payments to a residential facility for (a non-Hague country) was “the linking State party to the 1993 Hague Convention. is fostered by decisions and acts of the care of the child awaiting adoption of community development projects to Moreover, the new requirements now both countries of origin and receiving or as general support for that facility the referral of children to the program.” in place are all the more preoccupying countries. It concerns their attitude to the • payments to professionals involved in It notes “stronger demands [made] for in light of that country’s pre-Hague way that money is involved in a “legal” the adoption process, whether by law or community development assistance to experience in the first decade of this intercountry adoption. Overall, it aims to by “necessity” be delivered in the region from which century. demonstrate three things in particular: • payments that are known to be required children would have been adopted. but are not codified This made it increasingly difficult for A major report prepared by ISS for • that countries of origin – both Hague the Australian Government to ensure UNICEF in 2009, and co-published with and non-Hague – variously require, 5.C.iv.a. such assistance would be delivered in the Vietnamese Ministry of Justice, clearly invite or accept substantial amounts PAYMENTS TO AN OFFICIAL BODY IN THE a way that maintained an appropriate established that one of the major factors of money from prospective adopters GUISE OF “DEVELOPMENT” OR separation between the program and underpinning the sale of children into and/or their agencies that are not “HUMANITARIAN” AID children referred to it for intercountry intercountry adoption, and analogous justified by services connected with the The HCCH Guide to Good Practice No adoption. Such separation was needed in illicit practices, in Vietnam in in the adoption process but will inevitably or 1 notes that development/humanitarian order to avoid the unintentional effect of 2006-2009 era concerned “the systems very probably influence that process support to countries of origin ”should encouraging communities to relinquish and regulations […] in place regarding • that receiving countries – all of which not be offered or sought in a manner children for adoption” (Australian financial issues and arrangements with are Hague – are often prepared to which compromises the integrity of the Central Authority, 2016). A EurAdopt agencies” (International Social Service, accept, or to find ways that allow them intercountry adoption process, or creates agency regrets that, to continue working 2009, p. 44). to accept, such conditions in order to a dependency on income deriving from on adoptions from Ethiopia, it “feels enable their citizens to adopt from a intercountry adoption. In addition, bound to contribute to development At that time, agencies were required given country decisions concerning the placement of projects involving local authorities and to contribute substantial sums as • that – and of particular importance in children for intercountry adoption should orphanages requested by the Authorities” “humanitarian aid” in order to have the the context of the present study – the not be influenced by levels of payment (EurAdopt, 2016). US agency Wasatch, for right to mediate adoptions from Vietnam substantial amounts of money thus or contribution. These should have no example, charges prospective adopters US$ (which was not then party to the 1993 “agreed” for a “legal” intercountry bearing on the possibility of a child being 1,500 for “Humanitarian Aid” under its Hague Convention). These sums also adoption in the country of origin are made available, nor in the age, health Ethiopia programme (WIAA, 2016). determined the number of adoptions such that third parties are strongly or any characteristic of the child to be 23 This “humanitarian aid” is on top of the sum of US$ 6,200 for “child care” that is effectively an officially required payment.

52 53 that each agency could mediate. Each the key fact that prospective adopters will 5.C.iv.b. states that the agreed amount depends prospective adopter from Ireland, for certainly receive a child from somewhere PAYMENTS TO A RESIDENTIAL FACILITY on the degree of competition among example, had to pay no less than US$ if they provide the “development aid” FOR THE CARE OF THE CHILD AWAITING the agencies for the child concerned, 8,000 (raised to US$ 9,000 in 2008) demanded and, even more significantly, ADOPTION OR AS GENERAL SUPPORT FOR hence there is in addition an incentive as “humanitarian aid”. The amount that they certainly will not if they refuse. THAT FACILITY to include particularly-prized “healthy” of this “contribution” was negotiated In other parlance, that would be known as Several EurAdopt agencies and several children unwarrantedly on the prioritised (and renegotiated) directly between the purchasing children. Central Authorities have expressed serious listing of children with special needs. Irish agency and the authorities of the concerns in particular about “expected” In some cases the negotiated amount is Vietnamese Province from which it was For its part, Sweden agreed to re-establish payments made to children’s residential reportedly as high as US$ 12,000. Some mediating the adoptions. There was no cooperation with Vietnam in 2013, without facilities in Vietnam. These concerns agencies are said to be disguising these written record of the discussions or signing a bilateral agreement. The two seem to focus mainly on facilities caring transactions as “care costs” for the child decisions from those meetings; the money countries also agreed that “if an adoption for children designated as having special between the moment of matching and the was essentially handed over in cash, hence organization provides a development/ needs, whose possible adoption is in granting of the adoption order. immediately becoming untraceable. humanitarian support program, it must be principle prioritised and is dealt with at separated from adoption intermediation” Provincial level (the Vietnamese Central The current Law on Adoption allows In 2008-2009, Ireland was among the three (Swedish Central Authority, 2014). Authority deals directly with matching for “donations” to care facilities, and receiving States (the others were Sweden Swedish agencies are legally prohibited the relatively few “healthy” children now the Vietnamese Central Authority’s and the USA) that suspended adoptions from providing development aid and deemed to require adoption abroad). position is reportedly that, under those from Vietnam. In so doing, Ireland humanitarian assistance if this is linked to conditions, it is therefore not mandated denounced in particular the financial the adoption process. The “development According to one Central Authority, to intervene. In fact, the provisions of a requirements imposed by Vietnam on aid” requirement of the Vietnamese since “orphanages” in Vietnam are in a Decree implementing that Law foresee prospective adopters and their agencies, Authorities can be met by the Swedish direct working relationship with specific that “domestic, foreign individuals, demanding “a total separation” between accredited agency for Vietnam, however, agencies from different countries, organisations encouraged to provide intercountry adoption activities and “aid”. since it has long been implementing they will propose a child on condition humanitarian aid […] do not request the Since Vietnam’s accession to the 1993 international development cooperation that the agency undertakes to donate a care centres to give children for adoption; Hague Convention and its own ratification projects there through a foundation that negotiated sum (EurAdopt, 2016). One the care centres do not commit to give of the treaty, Ireland has re-established is part of that same agency (Adoptions EurAdopt agency regrets not only that this children for adoption because they cooperation. The same agency has been Centrum, n.d.). While this formally “maintenance fee” is not a fixed amount received humanitarian aid” (Socialist accredited and approved to mediate constitutes “separation from adoption but also that the sums negotiated are Republic of Vietnam, 2011, art. 4). The adoptions from that country. The agency is mediation” as such, it still links the too high in relation to level of services same text appears to prohibit foreign permitted, by the Irish Central Authority, provision of aid to the overall right to provided and cost of living; in addition adoption agencies authorised to operate to charge every adopter € 2,840 for engage in mediating the adoption of it claims that no invoices or receipts are in Vietnam providing direct assistance to “development aid” (Adoption Authority children from Vietnam. given (EurAdopt, 2016). The same agency care centres authorised to allow children of Ireland, 2016). To justify its decision states that there are facilitators, not to be adopted overseas.24 In terms of to allow this, the Irish Central Authority Concerns as to the present system in foreseen by the law, that work informally the issues raised by actors in receiving states that “there can be no direct Vietnam relate not only to “development and directly with these residential centres countries, however, certain interpretations connection between the development aid aid”, however, but also to payments to (and not with the agencies). Another of these provisions – and lack of hard and the adoption of a specific child” and residential facilities for children (see EurAdopt agency states that Vietnam evidence that they are contravened – “if an accredited body has a project with a below). “gives points” to agencies according to the may indeed be used to argue against particular VN Province, applicants using size of the “donation” that determine how intervention. the accredited body will not receive a many children can be adopted. proposed placement from that province” A number of Central Authorities (Adoption Authority of Ireland, 2016). The above-mentioned Central Authority of receiving countries (including This justification obviously fails to address 24 This is the author’s understanding of the English version of the Law, provided by the US Central Authority.

54 55 Belgium, France and Switzerland) have c) simply leaving their agencies to more children an orphanage adopts Hague Convention and almost like been attempting to set a “reasonable” compete with their peers.25 internationally, the more revenue the child trafficking. There is a big risk that maximum amount for such development/ orphanage receives” (Stuy, 2014, p. 359). the number of adoptable children is humanitarian aid to Vietnam that might One EurAdopt agency expresses concern Since that time, the sums involved have increasing when countries pay more.”26 be considered ethical in the circumstances about Ethiopia, where it ended its increased even further, thus making For its part, the Swedish Central Authority (Swiss Central Authority, 2016a). This programme in 2015. It complains that involvement in adoptions even more notes that it is “not possible for a Swedish move seeks only to mitigate the most the authorities encouraged support for of an attractive proposition for those adoption organisation to participate in egregious forms of competition, however, institutions and organisations taking care “orphanage” directors. a so-called one-to-one project” because rather than to question the very principle of children, but with no clear guidelines the link between the assistance and the of such aid being a condition for securing as to what amounts would be “reasonable”. Thus, according to Holt, its US$ 15,000 adoption process is too close (Swedish an “adoptable” child. The US Central The agency says that “this resulted in a Adoption Program Fee for China currently Central Authority, 2016). Authority notes that, “as a policy matter, very unhealthy ‘competition’ where those includes a “mandatory US$ 5,700+ we have encouraged countries of origin who donated the highest amounts of orphanage donation required by the central It is against this background that a to eliminate the practice of requiring support in practice got most children for authority [which] covers the care of your particularly positive initiative has been contributions” (US Central Authority, intercountry adoption” (EurAdopt, 2016). child prior to adoption” as well as “costs taken by the US Central Authority. In 2016), but again this unfortunately does for personnel, administrative overhead, 2016, it published proposed regulatory not translate into a refusal to accept their Over half of the in-country cost of an training and education (both in the US changes for public consultation, among being paid when required. adoption from Haiti is a “contribution and China) [and] child welfare projects in which was a provision dealing directly required by the Central Authority for the China (Holt International, n.d.). A EurAdopt with the issue of “care costs”. The proposed Here we are once more faced with a care of the related child”, a sum of approx. member agency reports that agencies are amendment aimed “to prohibit accredited situation of totally diverging views US$ 6,100 (at the exchange rate current formally requested to pay to “orphanages” agencies or approved persons from on the part of receiving countries (see in August 2014 when it was set in HTG) adoption fees of approximately € 6,600 for charging prospective adoptive parents also “transnational cooperation” under that it invoices on behalf of the children’s each intercountry adoption procedure, and to care for a child prior to completion of 7.B below), with the result that highly facility in question (IBESR, 2014). This that – thereby confirming the information the intercountry adoption process” (US questionable policies and practices sum – for an unspecified period of care from Holt above – they are also asked to Department of State, 2016b). The US Central developed or tolerated by a country of – can be compared to the amount that implement cooperation projects in the Authority motivated its proposal as follows: origin are not contested effectively. In the children’s facilities previously invoiced framework of “one-to-one” agreements with case of Vietnam, one contributor to this directly as “care costs” in the pre-Hague “orphanages” (referring to the arrangement “In recent years, accredited agencies study notes that, alongside the receiving era, i.e. from US$ 300 to US$ 550 or more whereby an agency is paired with a specific and approved persons have begun countries that recognise the problem and per month for the “matched” child until orphanage) (EurAdopt, 2016). Another charging prospective adoptive parents are making some effort to contain it at least, the adoption process was completed. These EurAdopt member implicitly confirms an monthly support fees for children where other receiving countries are variously: amounts were already seen as unduly additional aspect of Holt’s information by the intercountry adoption process high given the cost of living in Haiti, in specifying that its “one-to-one” agreement is not complete. In some cases, these a) denying the existence of problems by addition to clearly inciting such facilities with an “orphanage” foresees “support fees are significantly higher than the making an artificial distinction to continue to operate more especially as a through equipment, training, capacity- normal costs associated with the care of between adoption and cooperation conduit for intercountry adoption. building aimed at empowering the staff” children in the foreign country. Where (whereas in practice the two are often (EurAdopt, 2016). institutions can collect large fees for the intimately linked) Stuy has noted that, in China at the care of a particular child, an incentive b) similarly denying the existence of beginning of this century, “the large China’s “one-to-one” programme also may be created to recruit children into problems of this kind, but more cash donation of US$ 3,000 (increased provokes concerns among Central institutions, while also providing a especially due lack of awareness and to US$ 5,000 in 2009) received from Authorities of certain receiving countries. disincentive for expeditious processing inability to monitor the activities of the international families made the program One goes so far as to qualify it as “very of an adoption” (US Department of State, agencies under their responsibility attractive to orphanage directors; the alarming”, viewing it as “against the 2016b).

25 Communication on file with the author – anonymity requested 26 Communication on file with the author – anonymity requested.

56 57 It may not prove possible, in light of the be taken by receiving countries in the results of the consultation, to effect this face of blatantly unethical practices on change in relation to US requirements. the part of actors in countries of origin Whatever the outcome, however, this is typified by the following statement by very clear recognition on the part of the the US competent authorities in 2007. Central Authority of a receiving country Instead of prohibiting adoptions from of the unacceptable consequences of Kyrgyzstan on the grounds that, among underwriting “care costs” in this manner other documented problems at that time, both vindicates concerns that have been fees were not transparent and the risk raised and provides a springboard for of implication in illicit practices was future concerted action to eliminate this therefore high, they simply informed factor that spawns illegal adoptions. prospective US adopters as follows:

5.C.iv.c. “The Kyrgyz government does not PAYMENTS TO PROFESSIONALS officially charge any adoption fees. There INVOLVED IN THE ADOPTION PROCESS, are, however, ‘unofficial fees’ that are paid WHETHER BY LAW OR BY “NECESSITY” to the Ministry of Education, the courts, In many countries the adoption process is the adoption committee and to obtain such that, without the services of a lawyer, a new birth certificate and a passport it is difficult to navigate. In some cases, for the child. These fees amount to the involvement of a lawyer is obligatory. approximately $6,000 to $8,500 per child” Concerns about payments made to (US Department of State, 2007). professionals indeed focus invariably on members of the legal profession. In sum, it was considered perfectly acceptable to inform prospective adopters As part of its overall fee, the Haitian that they would pay very substantial but Central Authority requires agencies (and unspecified sums to State entities that thus prospective adopters) to pay approx. € did “not officially charge any adoption 1,600 for the services of a lawyer for each fees”, in order to secure a child for case (IBESR, 2014). One EurAdopt agency adoption from their country. Under such expresses concern at the fee charged by conditions, arguing that serious efforts lawyers in Kenya (prior to suspension were being made at that time to combat of adoptions) which it quotes at about the sale of children and illicit practices € 3,000 (EurAdopt, 2016). According to for the purposes of intercountry adoption one source, hiring lawyers to deal with would seem to be questionable. intercountry adoption and guardianship cases has been essential in practice in Uganda, and they have been charging as much as US$ 40,000 (Kyagulanyi, 2016).

5.C.iv.d. PAYMENTS THAT ARE KNOWN TO BE REQUIRED BUT ARE NOT CODIFIED The somewhat cavalier attitude that may

58 59 adoptions from any country of origin that adherence to international standards, PART 6: requires contributions and/or donations and notably those set out in the 2009 to be made to any entity, facility or person Guidelines for the Alternative Care of KEY FINDINGS in the country of origin, where such Children.27 contributions and/or donations determine whether or not adoptions may be carried These Guidelines emphasise the out. This should include but not be importance of applying the “necessity INTRODUCTION Preventing and combating illegal limited to payments for development or principle”, i.e. making certain that a child adoptions therefore requires removing humanitarian aid, support to residential is neither proposed nor accepted into We can have no way of knowing how many at least the main factor underlying the care facilities, and “care costs”. Agencies alternative care unless there is no other children have been or are being adopted as “enabling environment” wherein illegal and prospective adopters should be viable alternative. As noted previously, a result of illicit acts. To begin with, as for adoptions are spawned, viz. the acceptance explicitly prohibited from agreeing to “poverty” as such is not an acceptable any clandestine or illicit activity, reliable that the exchange of large amounts of make such payments. reason for resorting to formal alternative figures are naturally difficult to establish. money is a necessary and justifiable aspect care. In addition the Guidelines prohibit Second, since all the children concerned of intercountry adoption. the “recruitment” of children for finally receive “legal” adoption papers, 6.B. MAL-FUNCTIONING placements in alternative care settings, they quickly blend in with those whose ALTERNATIVE CARE and place strict limitations on the adoption was carried out in a regular 6.A. FINANCIAL SYSTEMS objectives of providers. fashion. Third, there is a conspiracy INCENTIVES of silence since it is not generally in The way in which the child protection The Guidelines also demand adherence the interest of the parties to suspected Financial incentives, such as exorbitant and alternative care systems are used, to the “suitability principle”. This means illegal actions – be they prospective or adoption fees, should be eliminated. organised, resourced and monitored ensuring that, when it is determined actual adopters, agencies, intermediaries, clearly has a very considerable impact on that a child indeed requires alternative professionals, officials or even in some No development or humanitarian aid any implication of those systems in illicit care, the placement will be in a setting instances Central Authorities – to denounce requirement, incitement or request practices leading to illegal adoptions. that protects and promotes the human the practices. Birth parents are the notable should be made of any receiving country, rights of children in general and that exception, at least in those cases where agency or individual when this is in any Illegal adoptions have taken place from corresponds to the needs, circumstances, their child has been abducted or placed for way linked to an authorisation to carry countries with very different alternative characteristics and wishes of the adoption without their informed consent, out adoptions in general, adoptions from care systems, including those that are individual child at that time. but at the same time they are the least likely given locations or facilities, or specific fully, or almost fully, State-run. As this to be in a position to file a complaint. adoptions. study has noted, however, alternative Integrating the orientations provided care provision that relies primarily on by the Guidelines would go some way to Throughout this study there are specific There should be no requirement, request privately-run residential facilities – avoiding alternative care being used as a issues raised and indications of how or tolerance for payments to be made by particularly but not only those funded by conduit for illegal adoptions. they need to be tackled. As this study agencies or prospective adopters directly foreign sources – constitutes a major risk demonstrates, however, the achievement or indirectly to residential care facilities, for the occurrence of illegal adoptions. and effectiveness of any and all measures in any form, for any reason or at any This is all the more so given that States to address them will be fundamentally stage, prior to, during or following the where such arrangements are prevalent compromised unless, at a minimum, adoption, including “care costs” for a are invariably not in a position to primary and secondary legislation are child between matching and the issuance exercise necessary oversight (including reviewed to ensure that, by commission of an adoption order. obligations regarding registration, or omission, they do not contribute to the authorisation and inspection) to ensure creation or maintenance of an “enabling For their part, receiving countries environment” for illegal adoptions. should consequently refuse to authorise 27 For the full text and an in-depth analysis of the implementation of these Guidelines, see Cantwell N., Davidson J., Elsley S., Milligan I., and Quinn N. (2012).

60 61 6.C. LACK OF EFFECTIVE parents should be aware of the risks 2015 (Ministère des Affaires Étrangères, Attitudes towards the accreditation of CONTROL OF THE associated with not utilizing experienced, 2010; French Central Authority, 2016). adoption agencies vary wildly – and ADOPTION PROCESS licensed agencies. […] Prospective Here again, it is of concern to note that disturbingly – among receiving States. In adoptive parents pursuing an independent such adoptions can be carried out by the Nordic countries – which count among 6.C.i. adoption may place their trust in private French citizens even when specific and the higher per capita rates of ICAs – there PROHIBITION OF UNSUPERVISED/ facilitators engaging in unethical or severe risks are officially acknowledged. is a clear policy of accrediting a small DIRECT ADOPTIONS (“ADOPTIONS illegal practices in Haiti (US Department In relation to Lebanon, for example, the number of bodies that demonstrably have INDIVIDUELLES”) of State, 2011). French Central Authority notes that “the the resources to provide professional A study produced specifically to inform existence of fraudulent practices and child services and can be monitored effectively: the drafting of the 1993 Hague Convention Even with that new rule in place, however, trafficking, regularly reported in the past, Denmark has one accredited body, and set out starkly the disturbing risks of illicit “US citizens who currently reside in led the two French agencies accredited for Finland, Norway and Sweden each have practices when intercountry adoptions Ethiopia and have done so for two Lebanon to cease working in this country three. At the other end of the spectrum, are initiated and processed without the years are eligible to complete a private […] Prospective adopters should therefore the USA currently has no less than 184 support and oversight of competent adoption” (US Department of State, 2013). remain vigilant regarding the choice of accredited bodies of all shapes and sizes authorities or accredited adoption bodies their local agent” (Ministère des Affaires (Council on Accreditation, 2017). For its (Defence for Children International, In addition to the USA, many other Étrangères, 2017, author’s translation). part, France lies somewhere in between, Terre des Hommes & International receiving States have now prohibited with 32 such “bodies”, some of which Social Service, 1991). In line with those all such adoptions, whether or not the This kind of approach is disturbing on are approved to mediate adoptions from findings, adoptions variously known as country of origin involved is bound by the two fronts as regards combating illegal just one country and in reality carry out “independent”, “private” or “individual” 1993 Hague Convention: Belgium, Ireland, adoptions. Allowing a practice that is very few ICAs each year – two of them are deemed incompatible with that Italy and the Netherlands are among the widely recognised as involving a high risk completed just one adoption each in Convention and should be prohibited receiving countries to have done so.28 of illicit practice is in itself questionable. 2015, for example (Ministère des Affaires (HCCH, 2010a, no. 1(g), 22-24). Others, such as Finland and Sweden, have But the fact that it necessarily concerns Étrangères, 2015b). placed very restrictive conditions on non-Hague countries of origin, where Clearly, tolerating independent adoptions recourse to this process. Thus Finland, for procedures and systems are likely to Accreditation is therefore no guarantee while acknowledging the risk they example, notes that its 2012 Adoption Act fall below international standards, is of professionalism: bodies with vastly entail for the legality of each adoption “tightened the conditions for adoption. especially worrying. It may also well act different levels of expertise and resources is a wholly inadequate response. For The purpose is to prevent risks associated as a spur to those seeking to adopt “at any are allowed to operate, and indications of example, prior to prohibiting independent with independent adoptions, such as child cost” to turn their attention to such non- unprofessional and questionable practices adoptions as of July 2014 (US Central trafficking. The aim is also to ensure that Hague countries, which runs squarely and approaches may not be followed Authority, 2016), the USA had permitted a child actually requires international counter to objectives to ensure compliance up. This includes information given on them from non-Hague countries, simply adoption” (Valvira, 2013a). with those standards. agencies’ own websites. warning prospective adopters that they risked becoming involved in illicit Some receiving States nonetheless still 6.C.ii. One among many possible examples dealings. Thus, in a 2011 notice on its permit independent adoptions when they INADEQUATE VETTING AND MONI- of this concerns a Hague-accredited US website concerning Haiti, the US Central are carried out from countries of origin TORING OF ACCREDITED BODIES agency that was one of the 19 approved by Authority noted “a recent increase in US that are not parties to the 1993 Hague (AGENCIES) Haiti’s Central Authority in 2013 (after its citizens seeking to pursue adoptions in Convention and that also allow them. While allowing non-State bodies (private accession to the 1993 Hague Convention) Haiti through independent agents instead Foremost among them is France where initiatives) to continue to play key roles in to thenceforth mediate intercountry of licensed adoption providers. While in 2010 they constituted no less than mediating intercountry adoptions, the 1993 adoptions from that country. This agency these “private” adoptions are currently 41% of total intercountry adoptions to Hague Convention requires that agencies in fact has a long history of “adoption permissible in Haiti, prospective adoptive that country and still represented 25% in concerned be accredited by the receiving mediation” from Haiti, and one that country and, in turn, approved by the seems to have fitted well with the previous

28 Communications from the respective Central Authorities, on file with the author, except for Italy (see Commissione per le country of origin to operate in that country. climate that fostered the “development of Adozioni Internazionali, 2011)

62 63 commercial adoption and illicit practices” a residential facility with which it 6.C.iii. Switzerland – to suspend their adoption and where “private bodies and institutions cooperates. This “child for a family” FAILURE TO RESTRICT THE NUMBER programmes there, and the Ethiopian [had] free rein” (Hofstetter & Freire, 2005, approach flies directly in the face of the OF ADOPTION AGENCIES WORKING Authorities to take a somewhat stricter line. author’s translation). In 2010, the agency provisions of the 1993 Hague Convention, IN OR WITH A GIVEN STATE OF The Australian Central Authority describes stated on its website: and “special relationships” between ORIGIN one of the several factors behind the agencies and residential facilities are As noted by Fuentes et al. (2012), “[i] Australian decision as follows: “WIA works with an orphanage in Haiti known to be high-risk situations. Together, t is […] incumbent upon receiving that is able to expedite the adoption these two factors typify the kind of countries to regulate the number of “The growing number of non-government process. However, the fees paid to this conditions that can easily lead to sale of adoption accredited bodies wanting to adoption agencies operating in Ethiopia, orphanage are more costly than the children and illegal adoptions. engage in intercountry adoptions in and the closure of orphanages due standard orphanage costs and are $16,000 countries of origin, in order to limit the to greater government scrutiny, led compared to the standard $8,000 to Strangely, however, those conditions do number of adoptions and to coincide to increased competition for referral $9,600 the other orphanages in Haiti not appear to be at variance with legal with the number of legally adoptable of children to intercountry adoption charge. However, because this particular requirements. Indeed, under Haiti’s 2013 children available” (Fuentes et al., 2012, programs. A competitive environment orphanage is able to expedite the adoption , prospective adoptive parents p. 30). In addition, when a given State such as this is not always conducive to process, cases are usually completed in 12 are obliged to adopt from a crèche/ of origin in turn authorises too many ethical adoption practices” (Australian to 14 months rather than the normal 18 to orphanage licensed and rated a “green accredited agencies to operate within its Central Authority, 2016). 24 month timeline” (WIAA, 2010). light” facility by IBESR (the Haitian borders, this has been shown on many Central Authority) and with which their occasions to create an unhealthy climate In Vietnam, in mid-2008, the year that This was a direct incitation to circumvent accredited agency works. While neither of competition for “adoptable” children, adoptions from the country peaked the “normal” process – which was already adoption agencies nor crèche/orphanage and to make the effective monitoring of at 1,747, a total of 68 agencies were recognised at the time as dangerously directors are allowed to match prospective their activities almost impossible. For authorised to work on intercountry inadequate – for an unexplained and adoptive parents with specific children, its part, the Committee on the Rights adoptions there – from Canada (3), France vastly higher fee. While this message no IBESR “may take a proposal from a crèche of the Child has recommended that the (9), Italy (8), Denmark (2), Ireland (1), longer figures on its website, a barely less director under advisement”, although the number of accredited agencies be limited Spain (4), Sweden (4), Switzerland (1) and disquieting message is now relayed by final matching decision is up to IBESR and that their fees for various services be USA (42) (Fuentes et al., 2012, p. 92). This this accredited agency. Its current website alone (US Department of State, 2016a). monitored (Committee on the Rights of large number was seen as a contributing (April 2016) states: the Child, 2013a; 2014a; 2014b; 2015b). factor to the problem of illegal adoptions As is so often the case, there are many that led the USA, Sweden and Ireland to “[a] family will apply to Wasatch and worrying aspects involved here, At the beginning of 2010, more than suspend intercountry adoption from the indicate the gender and age of child they but in terms of agency ethics and 70 foreign agencies were operating in country in 2008-9. Yet, even now, Vietnam wish to adopt, […]. Once approved by our professionalism this example brings Ethiopia. Among them were 22 US agencies authorises 37 agencies from 14 countries agency the family will prepare a home to light two problems in particular: the licensed by the Ethiopian Government, to operate, for a total number of adoptions study and a dossier, once the dossier is agency offers to identify a child according 15 of which had been established since that stood at 484 in 2014, giving an completed, the agency rep will write a to the prospective adopters’ wishes, and 2005 (Fuentes et al., 2012, p. 92). These 15 average of just one adoption per agency cover letter to the dossier requesting the it inaccurately states that it will “request” agencies had in fact been set up specifically per month (HCCH, 2015c). age and gender of child the family wishes that the child come from a partnering to mediate adoptions from Ethiopia in to adopt, our agency will also request that facility whereas this is in fact compulsory. order to take advantage of the “adoption The Central Authority of one receiving the child come from one of our partner boom” that was under way in the country country has expressed concern that “there orphanages” (WIAA, n.d.). at that time. In reality, this “boom” are so many foreign AABs operating in involved substantial numbers of illegal [Bulgaria] and the number of intercountry In other words, the agency proposes to adoptions, finally leading certain receiving adoptions is increasing all the time.”29 find a child according to the specifications countries – including Australia, France and of the prospective adopters and from 29 Communication on file with the author – anonymity requested.

64 65 Indeed, after a fall in numbers after 2004 questionable from the standpoint of that may involve illicit practices. In some and their agencies to pay substantial (from 395 in that year to 100 in 2007), children’s rights and of the primacy of the receiving countries, it can also fuel public sums for the right to adopt its children annual intercountry adoptions from “best interests of the child” in adoption calls for greater efforts on the part of (see “payments to a residential facility” at Bulgaria have since bucked the global matters (see further discussion on quotas the authorities of receiving countries VII.D above), with the high risk that this downward trend, rising consistently below under VIII.D: “Restricting the to unwarrantedly identify more sources involves for illicit practices. to reach 472 in 2014 (HCCH, 2014a). transmission of applications to adopt”). of “adoptable” children in a pro-active Bulgaria – which ratified the 1993 Hague If Hague principles are to apply, there is a manner, generally in countries of origin Historically, as well as today, France Convention in 2002 – has in fact accredited clear and vital joint responsibility at play that are not Hague-compliant. appears to have by far the largest gap no less than 35 agencies based in the that is far from being respected at present. between the number of approvals to country to mediate adoptions to specified On the one hand, receiving countries must Consequently, monitoring the numbers adopt and that of children actually being receiving countries that total 26 (HCCH, limit the number of bodies accredited to in order to take appropriate corrective adopted (although we do not know, n.d.). The number of receiving countries work with any given country, on the basis action when necessary should be of notably, the situation in the USA). In 2004, for which each agency is approved ranges of a realistic assessment of the overall Central Authorities for combating illegal when annual intercountry adoptions to from just one to 18. One of the two agencies number of children who might require adoptions. Not all receiving countries are France were running at over 4,000, some approved for 18 receiving countries, for adoption abroad. On the other hand, able to provide data on the number of 25,000 prospective adopters reportedly example, is itself partnering with fully countries of origin must take it upon their citizens who have been approved for held valid authorisations. Ten years on 10 US agencies as well as three in both themselves to deny approval to any such intercounty adoption, however – among (2014), annual adoption figures had fallen France and Italy (Vesta, 2012). It may accredited agencies when their number them are, at their respective federal levels, by almost 75% (to 1,069) but there were be felt that the resulting web of agency goes beyond the objective needs. Failure to Switzerland and the USA. still 17,568 persons approved to adopt, a activities could be extremely difficult to set such limitations not only brings with fall of just 30% (French Central Authority, monitor effectively, and that this web may it risks such as those described above but From the standpoint of a country of 2016). The astonishing 17::1 ratio may be unnecessarily vast and complex to deal also invites the simple and fundamental origin, the uncontrolled approval of explain in part why the proportion of with some 500 adoptions annually. question – why would one not do so? To prospective adopters can translate into “independent” adoptions by French this, on the basis of experience to date, phenomenal backlogs. In China, for citizens is comparatively still so high Appropriate reaction to the evidence- the only possible answer invariably lies example, from where adoptions had (25%), as well as the initiatives that the based risks of accrediting unduly more in the monetary domain that in the plummeted from a peak of 14,487 in 2005 French Authorities have taken to promote numerous agencies seems to be difficult protection and promotion of children’s to just 5,012 four years later (Selman, intercountry adoption from certain to secure. By 2009, some 45 adoption human rights. 2015), the number of prospective adopters countries of origin. agencies had programmes in Haiti, on its “waiting list” had hit no less than including 24 US-based and 11 French. 6.C.iv. 30,000 by the end of 2009 (Chinese & Several countries are at the other end of When applying its accreditation UNLIMITED NUMBERS OF UK Central Authorities, 2009), implying the scale. Ireland, for example, has made procedure in preparation for the entry ‘APPROVED’ PROSPECTIVE ADOPTERS an average wait of at least five years at a conscious effort to balance the numbers into force of the 1993 Hague Convention It is clearly both undesirable and that time for those staying the course. since ratifying the 1993 Hague Convention the following year, Haiti in 2013 decided dangerous to issue “fitness to adopt” In the event, the potential waiting time in 2010. As a result, the ratio between to accredit large numbers again, including certificates to unlimited numbers of increased year on year thereafter, since “Declarations of Eligibility and Suitability” 19 for the USA and 12 for France. Haiti prospective adopters when the number annual adoptions continued to fall in granted and incoming adoptions stood at ostensibly sought to mitigate the of children likely to be adopted from number, reaching just 2,764 in 2014 1::1 in 2015, as opposed to more than 2::1 potential “competitive” ramifications of abroad is significantly smaller. It is (Selman, 2015, op. cit.). In addition to in 2010 (Irish Central Authority, 2016). this approach by setting annual quotas not only the cause of understandable thereby creating the above-mentioned Similarly, Australia’s corresponding ratio for each country and each agency. This frustration among prospective adopters risks associated with frustrated demand, for mid-2014 to mid-2015 was also 1::1, but measure may seem appealing at first sight but also – importantly in the context of this situation demonstrates why China had in fact been negative (more adoptions as an effective barrier to competition, this study – contributes to creating a level and similarly-placed countries of origin than approvals) in the two preceding years but quotas have a number of negative of unsatisfied demand that can lead some are able – if the receiving countries so (Australian Central Authority, 2016), with ramifications in addition to being highly prospective adopters to consider options allow – to require prospective adopters the difference presumably accounted for

66 67 by previously approved adopters. The for adoption by the applicants. This is origin. However, the consequence of the prospective adopters they represent. Netherlands too have had a 1::1 ratio since indeed the wrong way around. thus-suppressed expression of “effective As alleged in relation to Vietnam and 2013 (Dutch Central Authority, 2016). demand” reflected by such initiatives is elsewhere, this may involve securing Finland’s ratio was only slightly higher in ISS has long argued for what it terms increasingly found, inter alia, in reactive the issuance of false medical certificates 2015 (1.3::1) (Finnish Central Authority, “reversing the flow of files”. This means “quotas” set by countries of origin in an attesting to an illness or disability. In 2016), representing a fall from 2012, that applications to adopt should only attempt to stem or filter that demand. addition, if the real need to resort to moreover, when it stood at 1.7::1 (Valvira, be sent to the authorities of a country intercountry adoption falls below the 2013b). of origin in response to a request from 6.C.v.a. established and projected level in a those same authorities to propose SETTING QUOTAS: THE WRONG RESPONSE given year or period, receiving countries Receiving countries that report higher prospective adopters who are deemed to The universal and systematic and their agencies will be tempted to ratios include Sweden which nonetheless be appropriate for a given child in need of implementation of the “reversal of the nonetheless request their “total” or even notes that the number of “consents” to adoption. In that vein, Sweden notes that flow of files”– the only logical approach to take steps to identify more children prospective adopters fell from 1,800 in nowadays, in most matching cases, the to intercountry adoption from the who, by some means, might be declared 2005 to 800 in 2015, almost in line with State of origin “asks the organisation in standpoint of children’s human rights – adoptable abroad. the decline in adoption figures (from the receiving State if there is a possibility would preclude the need for quotas. Their 941 to 336), and giving a ratio of 2.5::1 for them to find parents for a specific imposition is based on the arbitrary pre- “Reversing the flow of files”, in contrast, (Swedish Central Authority, 2016). While child” (Dutch Central Authority, 2016). determination of the number of children still allows the country of origin to federal figures are not available, a survey to be “freed” for intercountry adoption, determine its capacity – and to possibly by Switzerland’s French-speaking cantons One of the most appalling examples to given countries, and sometimes to each adjust this over time according to and Ticino in 2012 found that valid of what might be termed the “direct agency. The paramount consideration need – but then to invite submission approvals compared to effective adoptions transmission of files” was the spontaneous to be afforded to the best interests of the of appropriate applications rather stood at the relatively high ratio of 4::1, arrival en masse of individuals and self- child is substantially jeopardised. than distributing “adoptable” children unchanged from 2007 (Swiss Central styled “agencies” in Romania in 1990- equitably among countries and agencies. Authority, 2016a). 1991 who, without compunction, exerted There is some credence to the argument unrelenting pressure on the Romanian that an overall quota can represent the 6.C.vi. Overall, therefore, there does seem to be authorities to allocate a child to them. number of cases that the country of origin ALLOWING RAPID INCREASES IN THE increasing awareness of the need to limit They did so face to face and often aided feels able to manage properly in light of NUMBER OF ADOPTIONS FROM A the number of approvals of prospective and abetted by their own governments.30 the resources available. It is also argued COUNTRY OF ORIGIN adopters. The present study describes not dissimilar that establishing a quota per receiving In response to the pressure created by the examples from more recent years, such country prevents competition, as does a increasingly unsatisfied expectations of 6.C.v. as the uncontrolled rush to adopt from sub-quota per accredited agency. However, prospective adopters, Central Authorities UNRESTRICTED TRANSMISSION Ethiopia and from the Democratic this approach implicitly accepts the view in a number of receiving countries have OF APPLICATIONS TO ADOPT TO Republic of Congo (see also the sub- that the task to be taken on by countries of at different moments strengthened efforts SENDING COUNTRIES section on “preventing rapid increases” origin is to deal with “effective demand” to develop adoptions from non-Hague There have been notorious instances below). exerted by actors in receiving countries, countries of origin where regulations (but regrettably too poorly documented rather than to ensure the most suitable and procedures may be less strict. This to be cited here) in the past where the The overall level of pressure from placement for those children who may occurred at the turn of the century, for authorities of receiving countries have “spontaneous” applications has certainly require adoption abroad. example, in relation to “countries, such as transmitted the files of prospective fallen, in large part due to increasing Cambodia, Nepal, and Vietnam, that rise adopters to countries of origin with adherence to the 1993 Hague Convention, As regards illegal adoptions, the negative significantly for a time, only to be brought the explicit or implicit instruction that since that pressure is more especially ramifications of quotas go further. down by significant scandal, usually children be identified and made available confined to non-Hague countries of Agencies may try to ensure that the related to corruption, profiteering, and children within their respective quotas child laundering” (Smolin, 2010, p. 471). 30 The author witnessed these encounters first-hand as of February 1991, inter alia at the Romanian Committee for Adoptions correspond best to the desires of the Smolin has characterised elsewhere this itself, as a member of UNICEF-supported missions, and went on to work closely with the Romanian Authorities for several years in their efforts to remedy the situation.

68 69 phenomenon as “slash and burn” practices obligation as parties to that Convention the adoptive parents have not lived opportunity to avoid the costs and time (2013) involving vertiginous increases to apply its basic principles32 and, in overseas for twelve months or more)” involved in an intercountry adoption, with in ICAs from the countries concerned particular, either to prevent their citizens (Australian Central Authority, 2016). the result that a “relative child suddenly for a period until it is seen necessary to and agencies from creating a situation arises somewhere.” The Finnish Adoption take measures to establish a semblance where illegal adoptions were bound to The Dutch Central Authority notes Board, which grants permission for of order (moratorium, refusal of exit occur or to assist the DRC Authorities “concerns about adoptive parents who do adoptions, received about 25 applications visas, quotas…). Smolin noted in 2010 in stemming the flow. Instead, when not follow the legal way to adopt a child relating to “relative adoptions” in the that “there are already indications that the granting of exit visas for Congolese from abroad.” It mentions cases where the period 2012-2016, but refused all but three Ethiopian adoptions, as they have risen adoptees was suspended due to clear adoptive parents live abroad for a short as being unjustified (Finnish Central sharply in number,31 have increasingly irregularities, they complained on behalf time, arrange an adoption according to Authority, 2016). been subject to abusive adoption practices. of their citizens that adoption judgements local law, and are mentioned as the parents Ethiopia may be poised to be the next (including those made on the basis of on the birth certificate (Dutch Central 6.C.vii.c. illustration of the cycle of abuse, whereby illicit practices) were not being respected Authority, 2016). ADOPTION VIA LEGAL GUARDIANSHIP nations with rapidly increasing numbers and that the best interests of the children In Uganda,34 foreigners had been obliged are beset with abusive adoption practices, concerned were being ignored. Another Central Authority has to reside in the country for three years corruption, and scandal, eventually expressed a similar concern about States before they could adopt. New laws followed by shutdowns” (Smolin, 2010, 6.C.vii. that “continue to deal with certain introduced in 2007 allowed foreigners p. 483). There are many examples of ALLOWING METHODS THAT intercountry adoptions as if they were to be granted “legal guardianship” situations where a sudden and sustained AVOID THE ‘NORMAL’ ADOPTION domestic adoptions, with special criteria of children who could then be taken surge in applications to adopt has resulted PROCEDURE when one or both adopters are nationals abroad and formally adopted in the in countries of origin quickly becoming There are many instances where it has of that country, even if they live abroad.”33 receiving country. As a result, adoptions unable to cope with the “demand”, been possible, more or less legally, to avoid from Uganda to the USA, for example, resulting initially in an unprotected normal procedures for adopting abroad. In 6.C.vii.b. rose from less than 20 per year prior adoption process and, invariably, at most cases this has involved undertaking “RELATIVE” ADOPTIONS to that change to over 200 per year as length closure or severe restrictions on a “domestic” adoption in the country of Special procedures relating to the of 2011, making Uganda the fifth most intercountry adoption. origin, but there have also been examples adoption of a relative in the country significant country for adoptions to the of other methods. of origin often provide potential USA in 2015 (US Department of State, Among the most recent examples is the opportunities for circumventing 2015a). In Financial Year 2015, almost all Democratic Republic of Congo (DRC) 6.C.vii.a. established protections. Finland, for intercountry adoptions from Uganda to where the number of intercountry “EXPATRIATE” ADOPTIONS example, can only recognise a foreign the USA (196 out of 202) were carried out adoptions from rose from just 12 in 2005 The Australian Central Authority reports adoption for applicants habitually in this way, with finalisation in the USA to at least 555 in 2013. As noted previously, that, in the 3-year period July 2012 to June resident in the country if they have (US Department of State, 2015b). this development predictably, rapidly 2015, no less than 300 adoption-specific received prior permission to adopt, and comprehensively overwhelmed the visas were issued for children from at making it impossible in principle to The risks involved in this possibility capacity of the DRC Authorities to apply least 36 countries whose Australian travel abroad in order to adopt a child were considerable, since the safeguards appropriate and necessary safeguards adoptive parents had lived overseas for at independently. However, the Central in place for deciding on guardianship when processing applications and least one year, with the adoption having Authority notes that “relative adoptions” were far less strict than those relating legalising adoptions. The DRC was not been processed by an overseas agency or do not have to be processed through an to adoption. In May 2016, however, the (and is not) a party to the 1993 Hague authority. The Authority also notes that it accredited body. The Central Authority Children Act was considerably amended, Convention and it issued no official “may not be aware of additional expatriate states that sometimes Finnish citizens henceforth limiting applications for legal request for receiving countries to adopt adoptions occurring overseas including with a foreign background see this as an guardianship to Ugandan citizens with at its children. Those receiving countries where no visa can be obtained to bring the

therefore had, at the very least, a moral child to Australia (for example, because 33 Communication of June 2016 on file with the author – anonymity requested. 34 Overall concerns about adoptions from this country were detailed in a Thomson Reuters Foundation investigation in 2015 (Esslemont & Migiro, 2015) and dealt with in a study on adoption and legal guardianship practices in Uganda prepared by Dr. 31 Intercountry adoptions from Ethiopia soared from 415 in 2003 to 4,390 in 2009 (source: AICAN, n.d.) Hope Among (Among, 2014). 32 In accordance with HCCH (2010a)

70 71 least three months continuous residence under US law, e.g.: “If you have obtained a in the country. At the same time, it reduced kafala guardianship certificate in Morocco the residency requirement for foreign for the purpose of adopting your child in prospective adopters from three years to the United States, you will first need to one (US Department of State, 2016d). apply for a new birth certificate for your child. Your name will be added to the new 6.C.vii.d. birth certificate” (US Department of State, CONVERTING KAFALA GUARDIANSHIP INTO 2014b). AN ADOPTION Kafala is a form of guardianship practised This path is seemingly used quite often: in countries of Islamic Law. It is not visas for Moroccan children to be considered a form of adoption since it adopted in the USA totalled 224 for the does not create family ties between the period 2010-2015, the vast majority for child and the guardians. The artificial children aged 2 years and younger (181, creation of such ties is considered to be or 80%) (US Department of State, 2016c). impossible under Islamic Law, meaning in Furthermore, the US Central Authority addition that adoption itself is outlawed notes for Morocco: in almost all such countries. While the exact rules differ from country to country, “There is no adoption fee per se. a common feature of kafala is that the Prospective adoptive parents customarily guardians must be of the Moslem faith. make donations to orphanages to benefit other children who are not adopted. Intercountry kafala decisions appear to be Since these are donations, they may be relatively infrequent and, by definition, given at any stage but are typically given do not come within the scope of the 1993 at the end of the kafala process. They Hague Convention. However, “receiving range from US$500 to a few thousand US countries” – their Central Authorities, dollars. Some orphanages, at no charge, other competent authorities and courts help the prospective adoptive parents with – take different attitudes towards the paperwork and through the kafala process, possibility of converting a kafala decision and the donation amount may reflect the into an adoption when this question arises. role the orphanage played in helping the prospective adoptive parents through the Thus, in France, for example, the Central process” (US Department of State, 2014b). Authority does not deal with such cases and jurisprudence to date demonstrates Whether or not the process itself of unwillingness to convert kafala decisions converting kafala into adoption once into even simple adoptions, since the outside the country of origin might latter would not be recognised in the be questioned in terms of its legality, child’s country of origin (Ministère des arrangements such as the one described Affaires Étrangères, n.d.). In contrast, the above bear an uncanny resemblance to US Central Authority provides guidance practices of serious concern in relation to and information explicitly for persons “illegal adoptions”. seeking to obtain guardianship under kafala in order to adopt the child later

72 73 adoptions can only be partial, not least in some way in the procurement of PART 7. because so many manifestations of the children for adoption will also only rarely phenomenon are currently not in fact denounce illicit practices. As a result, RECOMMENDATIONS TO prohibited by law, and indeed are often what is tantamount to a degree of relative encouraged or even required by legally impunity for perpetrators is created REDRESS ILLEGAL ADOPTIONS binding texts (the law itself, government which, combined with the size of the regulations and policies, bilateral potential profits to be gained, encourages agreements, etc.). them to run the risk of detection.

occasional allegations are made about But several other important factors Over the years, several ad hoc instances 7.A RESPOND TO illicit practices but generally concern anyway limit the justification for relying of individuals being prosecuted for illicit VIOLATIONS adoptions that took place back in the too much on ensuring the rule of law, even activities in connection with adoption 1970s or 1980s (Swiss Central Authority, in cases where individual criminal acts are have nonetheless been recorded, in both 7.A.i. 2016). suspected. receiving countries and countries of REPORTING AND REFERRAL origin. Receiving countries should have in place Kazakhstan provides an example of a First and foremost among them is the a protocol or known and recognised response by a country of origin. In 2014, fact that, for an investigation to be The Central Authorities of most receiving procedure that responds effectively and its General Prosecutor’s Office conducted launched and prosecution to be pursued, countries that responded to a survey for pro-actively to concerns expressed about an investigation into the inaccuracy of an allegation or complaint must first be this study35 do not, however, report any the circumstances of an intercountry data on children adopted abroad, and registered. As Smolin notes, however, the current or recent cases being the subject adoption once it has taken place. One found a discrepancy of 673 children parties directly involved in an adoption of a criminal investigation or prosecuted example of such a pro-active response undercounted (General Prosecutor’s Office are generally either not in a position to before their country’s courts. Indeed, in is Australia’s Protocol for Responding of the Republic of Kazakhstan, 2014). It file a complaint or have no interest in their replies both Australia and the USA to Allegations of Child Trafficking in launched an investigation into possible doing so: explicitly note significant improvements Intercountry Adoption. This Protocol sale of children for intercountry adoption, in frameworks for intercountry adoption is designed to give adoptive parents an initiative that the Committee on the “Most original family members and in countries of origin over the past ten and adoptees information about how Rights of the Child urged Kazakhstan to vulnerable/adopted children are too years. That said, since the beginning of the Australian Authorities will respond pursue (Committee on the Rights of the powerless to stem the tide of abusive the century, the USA in particular has to concerns they may have related to Child, 2015a). UNICEF also reports that a adoption practices, and are not positioned taken legal action against certain of its abduction, sale and trafficking in their number of court rulings on intercountry to effectively protest after the fact. Most citizens involved in arranging illegal intercountry adoption. The Protocol adoptions were reviewed by the General adoptive parents have identified their adoptions from, for example, Cambodia also provides that the Australian Central Prosecutor’s Office, such as cases where interests with those of their national and Guatemala. Authority will consider any broader biological parents claimed their rights, adoption agencies; the combined voices implications of credible concerns, to and the original rulings were reversed of most adoptive parents and adoption Countries of origin have also prosecuted determine whether cooperation with the (UNICEF Kazakhstan, 2016). agencies seem to have been focused on individuals for involvement in illegal country of origin should be suspended or keeping intercountry adoption open and adoptions. In Vietnam, for example, the terminated (Australian Central Authority, 7.A.ii. maximizing the numbers of adoptions, in Nam Dinh Province People’s Court in 2016). The Australian Central Authority INVESTIGATIONS, PROSECUTIONS, part through downplaying the extent of 2009 handed down custodial sentences to reports “a small number of cases of SANCTIONS AND REDRESS FOR abusive practices” (Smolin, 2014, p. 359). 16 persons convicted of having received concern relating to alleged abduction, sale VICTIMS bribes and falsified the documents of 266 and subsequently 7.A.ii.a. Obviously, professionals and staff of babies between 2005 and 2008 to meet adopted to Australia” but that these “relate THE IMPACT OF INVESTIGATIONS, residential facilities who are implicated foreign demand for adoptees. Guatemala to adoptions that occurred over ten years PROSECUTIONS AND SANCTIONS ago.” Similarly, Switzerland states that The impact of law enforcement on illegal 35 Australia, Belgium (French Community), Canada (Québec), Finland, France, Germany, Ireland, Netherlands, Sweden, Switzerland and the USA.

74 75 has prosecuted, among others, the owners when the Italian Authorities pressured systems not only facilitate and encourage Gradually efforts are being made to of residential facilities involved in illegal Kyrgyzstan to finalise the cases of children those acts but also accept “legal” measures facilitate the search process. Thus, for adoption networks. who had been identified for adoption that foster illegal adoptions. example, an Adoption Manual has by Italian families. A review of these been developed (in Korean only for the As indicated by experience in Kyrgyzstan, cases revealed that all documents had 7.A.ii.b. moment) by the Korean Adoption Service however, prosecutions may have a been fabricated, including the forging of SEARCHING FOR IDENTITY, ROOTS AND THE and the Ministry of Health and Welfare very limited impact on the overall signatures of Kyrgyz Government officials. TRUTH which, inter alia, describes the steps to phenomenon of sale of children into At the time of writing, the representative In addition to responding in a timely take for conducting a birth family search illegal intercountry adoption.36 After a of the Italian agency concerned is under and effective manner to allegations of (Justice Speaking, 2016). However, overall, steady rise in the number of intercountry arrest and the investigation is on-going. illegality in an adoption, the competent it seems that such initiatives are still far adoptions in the preceding years, in 2008 authorities must provide all possible too rare. the Kyrgyz General Prosecutor’s Office In the context and within the limitations support for redress, including actively found serious irregularities and corrupt of this study, it was manifestly impossible facilitating adoptees’ search for the truth practices in the intercountry adoption to garner comprehensive data on and for their origins. 7.B INTERNATIONAL AND system, including false certificates of successful prosecutions for illicit practices TRANSNATIONAL disability that would ensure the children linked to the sale of children for The growing number of adoptees who at COOPERATION concerned be made available for adoption intercountry adoption. However, when set some point – as adolescents, young adults abroad (see also “priority for children against the scale on which documented or even later in life – feel the need to learn 7.B.i. with ‘special needs’” at 4.C.iv. above). illegal adoptions have taken place, it about their origins is well documented. GLOBAL Investigations eventually led to 197 appears clear that the number of cases Their search may or may not be linked with At the 2010 Special Commission on the criminal prosecutions and the dismissal leading to prosecution is minimal, thus suspicions or concerns about the legality of practical operation of the 1993 Hague of several judges and government officials vindicating perpetrators’ impression of their adoption. This question is one of the Convention, Australia sponsored a full who had been involved in decision- virtual impunity. The Kyrgyzstan example main issues taken up by self-help groups of day of debate on the abduction, sale making on the cases in question. As a tends to show, moreover, that even when intercountry adoptees in particular, such as or and traffic in children and their result, a moratorium on intercountry responsible action is taken, it is unlikely to TRACK (Truth and Reconciliation for the illicit procurement in the context of adoptions was put in place in 2009; it deter others. Adoption Community of Korea) (Justice intercountry adoption. Contracting States lasted until 2012. With a view to reopening Speaking, 2016). subsequently set up working groups on intercountry adoptions thereafter, eleven At the same time, the actions in question two issues of direct and special relevance foreign agencies were accredited, but the are individual and recognised as criminal. In its recent publication on responding to the question of sale of children and accreditation regulations were found to To a certain extent, their importance can to illegal adoptions (Baglietto et al., illegal adoptions. One is reviewing leave room for corruption, leading to the be considered as secondary in terms of 2016), ISS provides telling accounts of the financial aspects of intercountry arrest and imprisonment of the Minister the main thrust of efforts to combat illegal the experience of adoptees when trying adoption, and to date it has in particular concerned. By this time, a databank of adoptions. This study contends that the to establish the truth behind their produced an extensive “Note” identifying children eligible for adoption abroad fundamental problems lie in the overall “abandonment” and adoption, as well as problems and proposing responses in had been set in place.37 Early in 2013, “environment” in which intercountry examples both of obstacles placed in their this regard (HCCH, 2014c). The second is the Parliamentary Anti-Corruption adoptions are allowed or forced to take path and of elements of good practice on seeking to develop a common approach to Committee decided to review the cases of place by the authorities of both countries the part of the competent authorities and preventing and addressing illicit practices all children in that databank and found of origin and receiving countries. While other responsible bodies. The examples in intercountry adoption cases. This that more than 20% of them (55 out of individual criminal acts obviously given in this study of current responses group has prepared a discussion paper 241) were not adoptable at all, let alone need to be countered, effective efforts to the “search for the truth” as a result of that deals with, among other matters, the abroad. The following year, a further to do so cannot be envisaged without historical cases involving governmental guiding principles of cooperation and serious irregularity was uncovered acknowledging the ways in which current and non-State actors also underscore this information-sharing to prevent illicit chequered pattern of denial, resistance, practices, preventing undue pressure 36 This paragraph is based on information provided for the study by UNICEF-Kyrgyzstan (document on file with the author) acknowledgement and assistance. on States of origin, and cooperation to 37 By that time too, the Kyrgyz Parliament had approved a decree (29 June 2012) allowing for accession to the 1993 Hague Convention, and Kyrgyzstan finally notified its accession in July 2016.

76 77 address and respond to specific cases of hamper many efforts to move that country the desirability of allocating children illicit practices (HCCH, 2012b). towards effective Hague compliance. No for adoption to the receiving country in less important, however, is the legitimate question. Such initiatives are therefore Initiatives such as these among States question raised as to the real motivations arguably the exact opposite of the kind parties to the 1993 Hague Convention of receiving countries that allow adoptions of cooperation required to combat sale of show the extent to which, in principle, to continue when one or more of their children and illegal adoptions. the problem of child procurement for peers has determined that the probity of intercountry adoption is recognised, such adoptions is seriously jeopardised. 7.B.iv. despite the existence and wide acceptance SOUTH-SOUTH of this treaty. There nonetheless remains a 7.B.iii. There have been encouraging instances need for political will to get to grips with NORTH-SOUTH of South-South cooperation to improve certain of the fundamental and sensitive Overall, cooperation to date between intercountry adoption systems and challenges pinpointed in the present receiving countries and countries of procedures. One example is the support study, particularly concerning the overall origin has regrettably tended to raise offered by the Colombian Central financial context in which intercountry more questions than to provide answers Authority to the competent authorities adoption operates and which spawns in terms of combatting unwarranted in Haiti following the 2010 earthquake. illicit practices. intercountry adoptions and hence illicit To the knowledge of this author, however, practices leading to illegal adoptions. no such cooperative arrangements have 7.B.ii. specifically sought to tackle directly and NORTH-NORTH Receiving countries may offer technical specifically an avowed problem of illegal The diversity of attitudes among receiving and other assistance designed to help adoptions. countries towards the legitimacy of a country achieve compliance with adoptions from a given country (especially, international standards, opening the but not only, when the latter is a non- way to accession to the 1993 Hague Hague country) has been highlighted Convention. However, this tends to be in regularly. In recent years, it has been response to critical situations rather than particularly noticeable with regard to to avoid such situations coming about in decisions on whether or not to suspend the first place. Furthermore, the assistance adoptions from, for example, Guatemala, offered may not be carried out in a Haiti, Ethiopia, Cambodia and Vietnam. coordinated manner but, on the contrary, The consensus around suspending be more an attempt to gain special favour adoptions from Nepal demonstrates that a with the authorities of a country of origin common front is feasible, but so far this is a with a view to securing preferential unique situation. The US Central Authority treatment for mediating intercountry indeed notes that “it would be very adoptions in the future. helpful if there were greater coordination between receiving countries both in terms Invitations to officials from countries of information about country practices of origin have also been extended by and toward a more coordinated approach certain receiving countries, sometimes in to countries of origin about practice the form of “study tours”. In some cases concerns” (US Central Authority, 2016). at least, these events have clearly been On the one hand, the “mixed messages” aimed more especially at rewarding past to the country of origin that result from cooperation on intercountry adoption, the lack of a unified response clearly or convincing the officials concerned of

78 79 care providers will receive subsidies or Finally, efforts to identify, prevent and PART 8: donations, those who adopt can expect to combat the factors and systems that lead pay large sums for the “privilege”. to illegal adoptions must not be branded CONCLUDING REMARKS as “anti-adoption” or disparaged as giving This fact reflects first and foremost the undue importance to the issue. “Keeping reality that adoption has been allowed the image of intercountry adoption to metamorphose from a child-centred clean” cannot be achieved by glossing Illegal adoptions constitute serious into the adoption process, especially for practice to one that responds more to over problems. It can only be achieved by violations of the human rights of children, intercountry adoption. the desires and needs of prospective ensuring that, whenever there is recourse ranging from the arbitrary deprivation adoptive parents. If it were child- to adoption, it is truly a protection of identity to exploitation through sale. The illicit or unethical practices that child centred, the authorities of all countries measure for the child concerned, is one Clearly, a major factor behind illegal procurement requires produce financial concerned would be actively investing in that upholds the requirement that the adoptions is the level of financial rewards that unscrupulous individuals finding suitable adopters for the child in child’s best interests be the paramount advantage that can be obtained from the and bodies consider sufficient when question. As it is, receiving countries are determining factor, notably by respecting procurement of children for adoption. But weighed against any potential risks they usually prepared to leave it to the “non- his or her human rights. legal adoption too, in most cases, requires may run. However, a key reason for this State” sector to recruit adopters for a the disbursement of sums similar to those lies in the fact that a thoroughly legal considerable fee, and many countries of that prospective adopters – especially adoption is itself artificially made to be origin are no less happy to allow, enable or foreigners – are required and prepared to unduly expensive. Under these conditions, require substantial payments by adopters pay to adopt. The financial implications as Smolin has noted, “multiplying levels or their agencies as a condition for placing of illicit practices can consequently go of bureaucracy, review, and institutional the country’s children in their care. unnoticed, as can the acts themselves. actors do not prevent or effectively limit child laundering, so long as the financial This is not only a totally illogical and There is a widespread perception that incentives for such child laundering detrimental approach to a “public measure this financial advantage can be put down remain. Thus, so long as adoption fees and of child protection” and to the promotion essentially to criminals or unethical donations are large enough to provide a and protection of the human rights of the professionals flouting the law. This is substantial incentive for child laundering, child, but it is of course fertile ground for certainly the case for many, and the the system will be vulnerable” (Smolin, the procurement of children, sale and other commission of illicit and/or criminal acts 2010: 492). illicit acts that give rise to illegal adoptions. clearly needs to be combatted as such. Adoption – particularly but not only in It is therefore vital that, while increasing But this study has sought to highlight its intercountry form – is currently the efforts to strengthen safeguards and in particular a more fundamental only measure with an officially “child to identify and prosecute individual and highly disturbing issue whose protection” objective that requires the perpetrators, both receiving States and significance is generally underplayed active disbursement of funds by those States of origin recognise and address or sidelined. That issue concerns the who are to provide that protection. This effectively the systemic problems involved. systemic, government-sanctioned is essentially due to the fact that much of practices that variously ignore, tolerate, the adoption process is left in “non-State” Equally, States must respond in a timely allow, promote or require conditions or hands and, implicitly or explicitly, it is and effective manner to allegations of actions that themselves constitute, or are accepted by all parties concerned that the illicit practices and illegal adoptions, a spawning ground for, illegal adoptions. level of “effective demand” to adopt is and in particular must recognise and Through law, policy and practice, States such that such payments can be required. address the human rights of the victims enable the procurement of children Thus, whereas foster-carers may receive an of such acts to access the truth about their in order to bring them unwarrantedly allowance and/or a salary, and residential situation and secure appropriate redress.

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