international adoption: current status and future prospects

International Adoption:Current Status andFuture ProspectsElizabeth Bartholet

Abstract

Throughout the poorer countries of the world, millions of children live out theiryoung lives in substandard institutions or in the streets. In times of war or politicaland economic upheaval, added numbers of children become homeless. At the sametime, thousands of couples in the more advantaged countries of the West havedemonstrated their eagerness to offer permanent homes to many of these childrenthrough adoption and have been doing so for more than four decades.

As a result of political pressure and rising nationalism, there has been growinghostility to international adoption in many countries that have previously beenwilling to free some of the homeless children for adoption by foreigners.

Elizabeth Bartholet isprofessor of law atHarvard Law School,and author of Fam-ily Bonds: Adoptionand the Politics ofParenting.

The laws regulating adoption are varied among the “sending” countries and numer-ous obstacles stand in the way of foreigners who wish to adopt. Aspects of the U.S.Immigration laws pose additional obstacles in the path of adoption of foreign-bornchildren by American citizens.

Declarations by the United Nations in recent years and current progress toward thecompletion of “Convention on Intercountry Adoption” by the Hague Conferenceon private international law offer some hope for facilitating the process of interna-tional adoption so that at least some of the children may be able to find permanenthomes. At the same time, modifications of U.S. Immigration laws will also be needed.

International adoption is a very important part of the total adoptionpicture. 1 How various nations of the world shape the rules governinginternational adoption will define to a great degree adoption’s future

role as a parenting alternative. This is because the world divides intoessentially two camps for adoption purposes, one consisting of countrieswith low birthrates and small numbers of children in need of homes, andthe other consisting of countries with high birthrates and huge numbersof such children. In the United States and other Western, industrializedcountries, the number of babies surrendered or abandoned by birthpar-ents has been limited in recent decades by contraception, abortion, andthe increased tendency of single parents to keep their children. As aresult of these and other factors, very few children are available foradoption in comparison with the large numbers of people who, for

Portions of the material in thisarticle appear in Bartholet, E.Family Bonds: Adoption andthe Politics of Parenting.New York: Houghton Mifflin,1993.

The Future of Children ADOPTION Vol. 3 • No. 1 - Spring 1993

90 THE FUTURE OF CHILDREN - SPRING 1993

infertility and other reasons, are eager to adopt.2 In the poorer countriesof the world, war, political turmoil, and economic circumstances contrib-ute to a situation in which there are very few prospective adopters incomparison with the vast numbers of children in need of homes.

For the infertile people who want toparent, international adoption constitutesthe major alternative to infertility treat-ment and infertility “by-pass” arrange-ments such as donor insemination andsurrogacy. These prospective parents arefrustrated and discouraged by the com-mon assertion that “there are no babiesavailable for adoption.” There is sometruth to this assertion, if the focus is limitedto babies born in the United States. Butthere are many infants and young childrenin other countries available for adoptionand many more in need of homes. Forpotential adopters ranked low on domes-tic adoption agency eligibility lists, inter-national adoption significantly increasesthe range of parenting choices. Othercountries have their own screening sys-tems, but the criteria vary enormouslyfrom one country to another. As a result,the single person or the over-40 couple,often precluded from adoption in theUnited States, can usually find at leastsome countries abroad where they canadopt. From the child’s perspective, inter-national adoption is also advantageous.For most of the homeless children of theworld, international adoption representsthe only realistic opportunity for perma-nent families of their own.

There is, however, great controversyabout the benefits and dangers of interna-tional adoption. To some, internationaladoption presents in extreme form someof the problematic issues that are at theheart of all adoption. It can be viewed asthe ultimate in the kind of exploitationinherent in every adoption, namely thetaking by the rich and powerful of thechildren born to the poor and powerless.It tends to involve the adoption by theprivileged classes in the industrialized na-tions of the children of the least privilegedgroups in the poorest nations, the adop-tion by whites of black- and brown-skinnedchildren from various Third World na-tions, and the separation of children notonly from their birthparents, but fromtheir racial, cultural, and national commu-nities as well.

To others, however, internationaladoption is a particularly positive form ofadoption. Prospective parents reach out to

children in need, rather than fight over thelimited number of healthy infants availablefor adoption in this country. The fact thatthese families are built across lines of racialand cultural difference can be seen as agood thing, both for the parents and chil-dren involved and for the larger commu-nity. These are families whose membersmust learn to appreciate one another’s dif-ferences, in terms of racial and culturalheritage, while at the same time experienc-ing their common humanity. As discussedin this article, the evidence indicates thatthey succeed in doing so.

The tensions between the different vi-sions of international adoption are evi-dent in recent developments. There hasbeen a vast increase, during the past fewdecades, in the number of childrenplaced for adoption across national bor-ders.3 Close to 10,000 children per yearhave come into the United States fromabroad for adoption in recent years. Theycomprise one-fifth to one-sixth of all non-relative adoptions in this country and a

Worldwide, there are anestimated 15,000 to 20,000international adoptions per year.

somewhat larger portion of all infantadoptions.4 Worldwide, there are an esti-mated 15,000 to 20,000 internationaladoptions per year.5

This increasing interest in interna-tional adoption is colliding with a newhostility to such adoption. The politics aresimilar to those involved in the debateabout transracial adoption in this coun-try.6 Children are said to belong with their“roots” and in their communities of origin.Political forces in the “sending countries”have been condemning in increasinglyloud voices the practice of giving theircountries’ children to the imperialistNorth Americans and other foreigners.South Korea, the country responsible forsending more than half the children whohave ever come to this country for adop-tion, has in the last few years begun phas-

91International Adoption: Current Status and Future Prospects

ing out its foreign adoption program inresponse to such pressures. In combina-tion with other developments, this re-sulted in a dramatic decrease in thenumber of international adoptions in1992. Preliminary data provided by theU.S. Immigration and Naturalization Serv-ice indicate that in fiscal year 1992 therewere only 6,500 such adoptions. Thesenumbers may bounce back up, as coun-tries such as Russia and China begin tosend children abroad for adoption in in-creasing numbers. But it is hard to knowwhat the long-term trend will be. The no-tion that there is, today, something shame-ful in sending homeless children abroadrather than taking care of “one’s own” hasgained widespread acceptance.

This article takes the position that thebenefits of international adoption far out-weigh any negatives and that internationaladoption should be encouraged with ap-propriate protections against abuses.From this perspective, it reviews currentbarriers to international adoption, dis-cusses developments in international lawregarding adoption, and addresses bothmyths and problems surrounding interna-tional adoption. Then this article presentsrecommendations for future directions ininternational adoption reform.

Barriers and the Role ofLawSignificant barriers now exist between thechildren in other countries in need ofhomes and those in this country eager tobecome their parents. A central issue forthe future is whether these barriers shouldbe reduced or made even more impregna-ble. In the author’s opinion, the law posesas the protector of children, but in the endfunctions as their enemy. The problem isthat the law focuses only on the negativepotential of international adoption andignores its positive potential. The law ad-dresses the dangers to children and birth-parents that might be involved inremoving them for adoption abroad, butthe law turns its back on the dangers tochildren involved in growing up on thestreets or in institutions. Few supporters ofthe law seem aware of its cost. The com-mon assumption is that more law willmean more protection for more childrenagainst abuse. Few recognize that legalprocedures designed on paper to protectchildren against abuse often become inpractice legal barriers that deny children

the loving homes that they need to escapea life of abuse.

When international adoption isallowed, the foreign countryapplies its law to decide whatchildren are available foradoption and which shall befreed for adoptive placement.

There is, of course, a need for law toensure that children are not improperlytaken from their birthparents or trans-ferred to situations in which they will bemistreated or exploited. But the lawshould also guarantee children the funda-mental right to grow up in a nurturingenvironment. By focusing exclusively onthe negative potential of internationaladoption, the law fails in its overall obliga-tion to serve children’s best interests.

Foreign Laws and PoliciesAlthough there is great variation amongnations in the way they deal with interna-tional adoption, few countries have de-signed their laws in a way that facilitates theplacement of children in need of homeswith adoptive parents in other countries.Islamic countries prohibit all adoption,whether foreign or domestic. Some coun-tries prohibit international adoption, andothers place special restrictions on it. Andalthough today most countries apparentlyallow such adoption, their laws and poli-cies are not designed to accommodate itsunique features, and therefore effectivelyprevent many prospective parents whowould be interested in adopting acrossborders from doing so.

When international adoption is al-lowed, the foreign country applies its lawto decide what children are available foradoption and which shall be freed foradoptive placement. It decides whetheradoptive parents must come to the child’scountry to be screened and to process theadoption, or whether the child can be sentabroad for adoption. Requirements thatthe adoption take place in the child’scountry of origin add significantly to thefinancial and other costs of an interna-tional adoption, particularly when lengthyor uncertain periods of time abroad are


involved, or multiple trips. Many LatinAmerican countries require that adoptiveparents from abroad go through essen-tially the same process as is required in thecontext of a domestic adoption. The proc-ess that might not be unduly burdensomefor the person who lives locally may beoverwhelmingly difficult for the foreignerwho will be required to leave home andfamily and job to live abroad for the dura-tion of the adoption, which may rangefrom two weeks to several months.

South Korea stands out as the countrythat has made the most significant efforton the governmental level to facilitate theadoption of its homeless children by for-eigners. It is, of course, in large part be-cause this effort has been so successful thatthe South Korean government came un-der pressure to close down its foreignadoption program.

U.S. Laws and PoliciesMost of the countries that function primar-ily as “receiving” rather than “sending”countries have done little to adapt theiradoption, immigration and citizenshiplaws to accommodate the realities of inter-

national adoption. As a result these lawspose unnecessary hurdles in the foreignadoption process. The United States’ re-strictive approach to immigration, to-gether with the complications of thefederal system, mean that would-be adop-tive parents face a particularly challengingseries of hurdles in accomplishing a for-eign adoption. They must satisfy the lawsand policies of their home state and of theU.S. government, in addition to those ofthe foreign country at issue. Because of theabsence of coordination among these juris-dictions, the parents and their future childwill be screened repeatedly, subject to over-lapping and often inconsistent standards.

At the state level, prospective parentsmust initially satisfy their home state’s re-quirements with respect to parental fitnessand other matters. A satisfactory homestudy is a prerequisite under federal lawfor all international adoptions.

At the federal level, immigration rulesmust be satisfied before a child placed bya foreign country for adoption will be per-mitted to enter the United States with itsadoptive parents. These rules allow theissuance of the “preferential visas” thatpermit the immediate entry of foreign-born adoptees7 only where adoptive par-ents can demonstrate that they satisfyfederal criteria for assessing parental fitnessand that they have fulfilled all require-ments under the applicable laws of theparents’ home state and of the child’scountry of origin. These requirements cre-ate additional levels of significantly dupli-cative processing.

The Orphan Restriction

Congress has severely limited the scope offoreign adoption by permitting entry onlyto foreign adoptees who fit a narrow “or-phan” definition. For an adoptee to qual-ify, both parents must have died or haveabandoned the child, or the “sole or sur-viving” parent must be unable to care forthe child.8 Children may be disqualifiedsimply because they appear to have twoliving “parents,” even if the only evidenceof the father’s existence is a name on abirth certificate9 and even if the parentsare demonstrably unable or unwilling tocare for the child and are interested inadoptive placement. Even children whohave been left in an orphanage for pur-poses of adoption or deserted on thestreets may not qualify as “unconditionallyabandoned” for U.S. immigration law pur-poses.10 Furthermore, those children who


have already been adopted in foreigncountries in accordance with the laws ofthose countries, are permitted to enter theUnited States with their legal adoptive par-ents only if they are found to satisfy theorphan definition.

The orphan restriction is an anomaly.Virtually all jurisdictions within this coun-try and throughout the world permit chil-dren to be surrendered for adoptionwithout regard to whether a child has oneparent or two, or whether the parents areable to care for the child.11

The orphan restriction causes manyproblems. It prevents the adoption ofmany children who are in need of homesand free for adoption under the laws oftheir own country. It means that birthpar-ents may feel compelled to abandon theirchildren rather than surrender them inan orderly way, in the hope of makingthem eligible for adoption in the UnitedStates. And it can add significantly to theemotional difficulties involved when theadoption takes place abroad. The visa de-cision will not be made until the parentshave completed the adoption and areready to return home. And the facts thatdetermine whether a child satisfies thedefinition often cannot be known untillate in the adoptive process. Adoptive par-ents must therefore go through the entireprocess of becoming the child’s emo-tional and legal parents without knowingfor sure whether at the end they will bepermitted to bring the child home withthem to the United States.

Duplicative Adoption and Citizenship

After a child has been brought into theUnited States, additional legal steps arerequired to fully protect the child andregularize the new parent-child relation-ship. A U.S. adoption is necessary if thechild has not been adopted abroad and isadvisable even if such an adoption hastaken place. A foreign adoption decree isnot entitled to the same “full faith andcredit” accorded a decree issued by courtswithin the United States. A U.S. adoptionis therefore important to guarantee thechild fully protected legal status as anadoptee. In addition, the U.S. decree willgenerally be necessary to obtain a U.S.birth certificate. It can be very importantas a practical matter for adoptees to havetheir key birth and adoption documentsissued by U.S. agencies in a language andstyle that will be familiar to other U.S.agencies and to be able to obtain copies

of these documents with relative easeshould the need arise. Although a secondadoption in the United States is usually nomore than a formality, state law require-ments will have to be satisfied. Only a fewstates have designed their adoption lawsto facilitate recognition of foreign adop-tion decrees.12

Foreign adoptees do not becomecitizens by virtue of theiradoption by U.S. citizens. Theymust apply for citizenship, aprocess that ordinarily takes from six months to a year.

For most adoptive parents, the finalstep in the foreign adoptive process in-volves helping their child acquire U.S. citi-zenship. Foreign adoptees do not becomecitizens by virtue of their adoption by U.S.citizens. They must apply for citizenship,a process that ordinarily takes from sixmonths to a year. This final bureaucratichurdle appears to have no substantivemeaning. Quite clearly the goal is not todetermine which of these foreign-born in-fants and young children are fit to becomeU.S. citizens, but simply to provide citizen-ship status for all foreign-born adopteeswho apply.

From start to finish internationaladoption involves an enormous amountof process with very little substance. Par-ent and child must be screened on multi-ple occasions by numerous agencies,dozens of documents must be accumu-lated, notarized, certified, stamped withofficial stamps, copied, and translated.For prospective parents with sufficient re-sources and determination, internationaladoption can be accomplished.13 Thereare many who are able and willing to en-dure a great deal for the opportunity toadopt. Moreover, many U.S. adoptionagencies have established ongoing pro-grams with foreign agencies, and for par-ents who are able to work through theseprograms, a foreign adoption may be nomore difficult than many domestic adop-tions. But the bureaucratic process cre-ates very significant costs in financial andother terms. The expenses generallyrange upwards of $10,000, with many in-ternational adoptions costing $15,000 to


$25,000 even when no major obstaclesarise. Prospective parents can easily de-vote years of their lives to adoptive effortsthat turn out to be futile. The childrenwho are eventually adopted will generallyhave spent long periods of their younglives in orphanages or other institutionswaiting for adoptive placement. Most im-portant, large numbers who could havebeen adopted will not be since, for mostprospective adoptive parents, the barriersare too great to surmount.

The Conference proceedings have beendominated largely by the concerns of those whofocus on the negative rather than the positive

aspects of international adoption.

Despite its complexities, the processprovides less protection than it should forthe children who manage to get adopted.The lack of coordination between the dif-ferent jurisdictions means that some chil-dren fall through the cracks and aredenied fully protected adoptive or citizen-ship status. Furthermore, the difficultiesof the process provide incentives to findways to take short cuts around the legalsystem.14

International Law and theHague ConventionThere is very little international law gov-erning adoption across borders. Most ofwhat exists is designed primarily to protectagainst potential abuses in internationaladoption, rather than to establish stand-ards to facilitate such adoption.

The United Nations has in recent yearstaken some significant action, with the pas-sage by the General Assembly of the Decla-ration on Social and Legal Principles Relatingto Adoption and Foster Placement of ChildrenNationally and Internationally in 1986,15 andthe Convention on the Rights of the Child in198916 (hereafter the U.N. Adoption Decla-ration and the U.N. Convention). Thesedocuments recognize the legitimacy of in-ternational adoption and demonstrate theinternational community’s support for anumber of basic principles regarding suchadoption, for example, that there shouldbe safeguards against abduction andagainst trafficking for profit and that thereshould be guarantees of citizenship and

other appropriate legal status for the chil-dren when adopted. But these documentsdo not establish standards for the process-ing of international adoptions, and theyrelegate such adoptions to “last resort”status, with the preferred options beingadoption or foster care or other “suitable”care in the child’s country of origin.17

Some countries have, in the past fewdecades, developed bilateral treaties orother agreements designed to governadoption between a particular sendingand a particular receiving country.18 Butmost of the significant intercountry co-operation that exists today occurs not onthe governmental but on the adoptionagency level.

The Hague Conference on private in-ternational law recently embarked on aproject designed to produce a “Conven-tion on Intercountry Adoption,” agreed toby the major sending and receiving coun-tries of today’s world.19 Current plans callfor agreement on a final draft in the springof 1993, following which the various coun-tries involved would make their internaldecisions as to whether to adopt the Con-vention. This represents the first effort tobring together the countries principallyinvolved in international adoption to tryto get beyond the very general principlesincorporated in the U.N. Adoption Declara-tion and the U.N. Convention.

The Hague effort was originally de-signed, at least in part, to facilitate theinternational adoption process, by estab-lishing a legal framework that wouldmaximize the potential for cooperationamong different nations and reduce ir-rational barriers to the placement ofchildren across borders. However theConference proceedings have beendominated largely by the concerns ofthose who focus on the negative ratherthan the positive aspects of internationaladoption. The current draft Conventionreflects this orientation. It endorses the“subsidiarity” principle noted above, per-mitting international adoption only as alast resort, after possibilities for in-coun-try care have been exhausted. Its provi-sions are designed primarily to addressthe classic dangers associated with adop-tion—the risk that children will be im-properly removed from theirbirthparents and the risk that childrenwill be placed with unfit adoptive par-ents. There has been vigorous opposi-tion to any notion that the Convention


might serve to facilitate internationaladoption.

At one time the Hague project of-fered significant promise for reformsthat would make international adoptionwork more effectively. Now there is a riskthat it will simply establish additionalbarriers to the placement of children.But there is reason to hope that theHague effort will result in no significantharm to international adoption. The fi-nal Convention draft may demand nomore than some relatively minor proce-dural changes in the process for accom-plishing an international adoption. It isalso not clear that any Conventionagreed to will actually be adopted by asignificant number of countries.

It is still possible, of course, that theHague effort will result in some changes tofacilitate international adoption. Recentdrafts suggest a model for internationaladoption which would vastly simplify theprocess. It would give sending countriesresponsibility for decisions related to free-ing children for adoption and would givereceiving countries responsibility for deci-sions related to screening prospective par-ents, thereby eliminating the duplicativedecision making typical of today’s proce-dures. A Convention might help create anatmosphere in which it is more politicallyacceptable than it is today for sending andreceiving countries to work together to es-tablish the cooperative arrangements thatare essential to make international adop-tion work better than it does presently. Inaddition, the Convention effort may stimu-late reform on the national level. In theUnited States the Convention effort hasalready focused new attention on ways inwhich our immigration, citizenship, andadoption laws should be changed to makeinternational adoption work better.

Nonetheless, it seems clear that theHague Convention will do little to establishthe kind of new legal framework needed tomake the international adoption processwork effectively. It will be left to the variousnations of the world to take the initiative,either under the aegis of a vague Conven-tion or in the absence of a Convention.

Real Problems andMythical ConcernsThe problems that should be seen as cen-tral to the international adoption debateare the misery and deprivation that char-

acterize the lives of huge numbers of thechildren of the world. Millions of childrendie regularly of malnutrition and of dis-eases that should not kill. Millions morelive in miserably inadequate institutions20

or on the streets.21 Their situations vary:some institutions are worse than others;some “street children” maintain a connec-tion with a family while others are entirelyon their own. But there can be no doubtthat overwhelming numbers of childrenin the poor countries of the world areliving and dying in conditions whichinvolve extreme degrees of deprivation,neglect, exploitation, and abuse.22 Inter-national adoption should be seen as anopportunity to solve some of these realand desperate problems for some chil-dren. It should be structured to maximizethis positive potential by facilitating theplacement of children in need of nurtur-ing homes with people in a position toprovide those homes.

Recent drafts . . . would give sending countriesresponsibility for decisions related to freeingchildren for adoption and would give receivingcountries responsibility for decisions related toscreening prospective parents.

International adoption can, of course,play only a very limited role in addressingthe problems that the children of theworld face. Solutions lie in reallocatingsocial and economic resources bothamong countries and within countries, sothat more children can be cared for bytheir birthfamilies. But, given the fact thatsocial reordering on a major scale is noton the immediate horizon, internationaladoption clearly can serve the interests ofat least those children in need of homesfor whom adoptive parents can be found.

Adoption and Underlying Social IllsSome have suggested that internationaladoption programs might conflict withprograms designed to improve the lives ofthe millions of children now in need orwith efforts to accomplish the kind of so-cial reordering that might help the chil-dren of the future. For example, someargue that instead of promoting and pur-suing adoption, governments and indi-viduals in the well-off, industrializedcountries should devote increased re-


sources to more cost-effective programsdesigned to promote the well-being of chil-dren in their native lands. These effortscould include improving foster care ar-rangements, sponsoring orphanages, andsupporting various UNICEF projects.

Such efforts, however, are not incon-sistent with supporting foreign adoption.Indeed, the opposite is true. Foreign adop-tion programs are likely to increase aware-ness in the United States and otherreceiving countries of the problems ofchildren in the sending countries. Theseprograms give those who adopt reason toidentify, through their children, with thesituations of other children not luckyenough to have found homes. Foreignadoption is thus likely to help create aclimate more sympathetic to wide-rangingforms of support for children abroad.

Adoption must not be used to break up viablebirthfamilies, and those who want to adoptmust not be allowed to use their financial ad-vantage to induce impoverished birthparentsto surrender their children.

Another argument voiced against in-ternational adoption is that it might re-lieve pressure within some sendingcountries to deal with social problems thatneed attention. But this argument alsocollapses upon analysis. Sending childrenabroad for adoption tends to highlightrather than to hide the fact that there areproblems at home. Indeed, it seems likelythat a major reason for the hostility exhib-ited by many sending countries towardforeign adoption relates to their govern-ments’ embarrassment at having domesticproblems spotlighted by this public con-fession of their inability to take care oftheir own children.

Although speculative arguments can al-ways be mounted, it is unlikely that adop-tion of a relatively small number of theworld’s homeless children will significantlyinterfere with the efforts to assist thoseother children who remain in their nativecountries. Indeed, the nations of the worldare in general agreement that “the bestinterests of the child” should be the para-mount principle governing the placementof children outside their biological fami-

lies.23 Given the real problems confrontingthe world’s children, it should be clear thatthis principle requires laws and policiesdesigned to facilitate the internationalplacement of children in need of homes.

The Risk of Abuse and Exploitation

Care should be taken, of course, to preventinternational adoption from creating newproblems. Adoption must not be used tobreak up viable birthfamilies, and thosewho want to adopt must not be allowed touse their financial advantage to induceimpoverished birthparents to surrendertheir children. There is a need for laws thatprohibit baby buying, and for rules govern-ing the process by which a child is removedfrom one parent to be given to another.The rules should ensure that the birthpar-ents have voluntarily surrendered or aban-doned their child, or have had theirparental rights terminated for good rea-son. There is also a need for rules designedto ensure that adoptees receive loving,nurturing adoptive homes, and are pro-tected against any form of exploitation.

But it is patently absurd to talk as if thereal dangers for children were the dangersthat they might be taken from their birth-parents for purposes of abuse and exploi-tation. Nonetheless, public discourseabout international adoption focuses over-whelmingly on its alleged risks. Concernis regularly expressed in this country andabroad about the dangers that childrenwill be kidnapped or bought from theirbirthparents for sale to rich North Ameri-cans; the media in this country give head-line coverage to stories of “kidnappingrings” or “baby trafficking.” There are, ofcourse, some documented instances ofkidnappings and of improper payments tobirthparents. But there is no evidence thatthese practices are widespread, and it isquite unlikely that they are.24 Current lawmakes it extremely risky for adoption in-termediaries and would-be adopters to en-gage in baby buying or kidnapping. Evenif some might be willing to engage in suchactivities if this were the only way or theeasiest way to accomplish an adoption, thefact is that it is not. The world is, sadly, alltoo full of birthparents desperate to findhomes for the children they cannot carefor, and of children who have already beensurrendered or abandoned. When onelooks beneath the surface of most mediaand other stories of “child trafficking,” itbecomes clear that the term “trafficking”is used very loosely. The stories sometimes

International Adoption: Current Status and Future Prospects 97

involve claims that what is characterized asa “bribe” has been paid to an official, with-out disclosing the fact that small paymentsare traditional in the conduct of officialbusiness in the country at issue. Often thetrafficking stories say simply that the adop-tive parents paid a great deal of money toagencies or other adoption intermediarieswithout indicating whether anything be-yond legitimate fees for services were in-volved. Rarely is there any evidence thatbirthparents have been paid or that chil-dren have been taken from birthparentscapable of and interested in raising them.

Romanian Adoption

The point is not to justify everything thathas been done in the name of interna-tional adoption, but to look at even suchabuses as occur in perspective. Recentevents involving Romanian adoption areillustrative. The foreign adoptions thatfollowed the fall of the Communist re-gime in Romania in 1989 became thesource of the major adoption “scandalstory” of the early 1990s. The story be-came a focal point for media discussionsof international adoption25 and has beenused effectively by opponents of suchadoption in the context of the HagueConvention negotiations and more gen-erally. Would-be adopters from theUnited States and other countries weredescribed as wandering through Roma-nian villages offering payments to inducebaffled villagers to give up their childrenfor adoption. There undoubtedly weresome number of cases involving illicit pay-ments to Romanian birthparents for theirchildren, and there is no question thatsuch transactions deserve condemnation.But the real story of the children in Roma-nia, and the role of international adop-tion in their lives, is one in which babybuying deserves a limited amount ofspace. It has to do with a country in whichtens of thousands of children lived inorphanages and state hospitals, wherethousands acquired AIDS. It has to dowith institutional conditions so horribleas to stun even the jaded reporters whofirst revealed them to the world.26 It alsohas to do with the fact that once news ofthe situation in Romania got out, thou-sands of people came forward who wereeager to adopt some of the children theyread about and saw on television. Thou-sands of children were adopted, somefrom these institutions and some directlyfrom birthparents who were unable tocare for them.27

It is true that international adoptionwas mishandled in Romania and that someabuses occurred. But the real scandal wasthat, when would-be adopters came for-ward, there was no system in place to han-dle adoptions in a way which would havefacilitated placement while preventingabuses. Moreover, international adoptiondid not represent tragedy for the childrenof Romania or for their birthparents, al-though it has been described that way. Thetragedy has to do with the conditions inwhich Romanian children were and areliving and dying. The current move torestrict international adoption may or maynot eliminate certain abuses, but it willalmost surely prevent large numbers ofRomanian children from escaping the des-perate situations of their lives to live inloving adoptive homes.28

Loss of Roots versus Opportunities forBetter LivesCritics of international adoption oftenvoice concern that children will not re-ceive appropriate care in their new fami-lies and countries. Arguments are madethat it is unfair to separate children fromtheir racial, ethnic, cultural, and nationalgroups of origin. Loss of the group linkand sense of group heritage is said to be adeprivation in itself. And growing up in aforeign land is said to pose risks of dis-crimination.

There is a need for rules designed to ensurethat adoptees receive loving, nurturingadoptive homes, and are protected againstany form of exploitation.

Those who voice these concerns againignore the realities of children’s currentsituations. International adoption repre-sents an extraordinarily positive option forthe homeless children of the world, com-pared to all other realistic options. Mostof these children will not be adopted oth-erwise. They will continue to live in inade-quate institutions or on the streets. Fostercare is available only to a limited degreeand sometimes results in little more thanindentured servitude. The homeless chil-dren who survive to grow up often will facevirulent forms of discrimination in theirown country, based on their racial or eth-


nic status, or simply on the fact that theyare illegitimate or orphaned.

The research studies on the outcomeof international adoption show that thesechildren and their families function welland compare favorably on various meas-ures of emotional adjustment with otheradoptive families, as well as with biologicalfamilies.29 This is strikingly positive evi-dence since most international adopteeshave had problematic preadoptive histo-ries which could be expected to cause dif-ficulties in adjustment.30 The studies showthat adoption has, for the most part, beenvery successful in enabling even those chil-dren who have suffered extremely severeforms of deprivation and abuse in theirearly lives to recover and flourish.31

Some of the research hints at the com-plex issues involved in being part of abiracial, bicultural, binational family.32

But the studies provide no evidence thatthe challenge of establishing a satisfactoryethnic and cultural identity causes anyharm to the international adoptee.33 Thefindings are consistent with those in thetransracial adoption studies. Black chil-dren who grow up in white familiesemerge with a strong sense of black iden-tity. At the same time they tend to have abicultural or multicultural orientation.They apparently enjoy an unusual degreeof comfort in both black and white worlds,and are unusually committed to a futurelife in which they can relate to both those

worlds. They are flourishing in all theterms in which psychic health and socialadjustment are typically measured.34

There is no evidence that a multiculturalidentity is problematic from the perspec-tive of the children involved.

There has been no focus in the studieson determining what special positivesmight be inherent in international adop-tion for the children, their adoptive fami-lies, or the larger society. But some studieshint at the rich quality of the experienceinvolved in being part of an internationaladoptive family and the special perspectiveits members may develop on issues of com-munity.35

It seems clear that the debate over in-ternational adoption has little to do withgenuine concerns over risks to children.Children are being sacrificed to notions ofgroup pride and honor. As Tizard has de-scribed:

It is argued that the practice is a new formof colonialism, with wealthy Westernersrobbing poor countries of their children,and thus their resources. National prideis involved. However poor the country,they find the implication that they cannotcare for their own children to be undigni-fied and unacceptable.36

Thus poor countries feel pressure tohold on to what they term “their preciousresources,” and rich countries feel embar-


rassed to do anything that looks like colo-nialist exploitation.

But there is no real conflict betweenthe interests of the sending and those ofthe receiving nations. International adop-tion serves a symbolic function for thosein power. Sending countries can talk oftheir homeless children as “precious re-sources,” but it is clear that the last thingthese countries actually need is more chil-dren to care for. At the same time, thewell-off countries of the world have noburning need for these children. Theirgovernments might be willing to permitthe entry of adoptees from abroad to en-able those struggling with infertility to par-ent, but international adoption is not seenas serving any strong national interest. Sothe homeless children end up as “re-sources” that the receiving countries of theworld are quite willing to forgo to improverelations abroad.

Directions for the FutureThe starting point should be agreementthat children are not to be thought of as“resources,” belonging in some funda-mental way to their racial or ethnic ornational communities of origin. The worldshould take seriously the sentiments enun-ciated in international human rights docu-ments that children are entitled to aloving, nurturing environment, and thattheir best interests should be the guidingprinciple in the structuring of interna-tional adoption.

Receiving countries need to take ac-tion to build trust. They must recognizethat there are genuine concerns aboutexploitation, as well as a long history ofresentment. Good faith could be demon-strated and children’s interests servedthrough offers to develop and fund pro-grams to benefit children’s welfare withina sending country, in conjunction with anyinternational adoption programs that areinstituted. Mechanisms could be devel-oped to provide sending countries withregular feedback on what has happenedto the children sent abroad for adoption.Regular reports could help assure sendingcountries that their children are receivinggood treatment and are thriving in theirnew adoptive homes.

Sending and receiving countries needto agree on a legal framework for interna-tional adoption that would facilitate place-ment. The model should be one in whicheach of the key decisions in the adoptive

process is made carefully by a responsibleagency and then deferred to by all others.All duplicative processes should be elimi-nated. Several agreements already existbetween particular sending and receiving

The world should take seriously the sentimentsenunciated in international human rightsdocuments that children are entitled to a loving,nurturing environment, and that their bestinterests should be the guiding principle in thestructuring of international adoption.

countries which provide examples of howthe laws of two nations can be coordinatedto facilitate the adoption process.37 Re-ceiving countries should revise their adop-tion, immigration, and nationalizationlaws to remove impediments to interna-tional adoption, and to ensure fully pro-tected status to all foreign adoptees.

For the United States this would meanthe following:

Development of agreements with othernations on a legal framework facilitatinginternational adoption. This could bedone either under the auspices of a newHague Convention or apart from it.

Recognition in such agreements of theprinciple that children’s best interests re-quire that children in need of homes beplaced for adoption as expeditiously aspossible. Children deserve nurturinghomes now and not simply at some distantpoint in the future. Delay hurts and maydo permanent injury.38

Elimination of the immigration law pro-visions that now restrict the children avail-able for adoption by U.S. citizens to thosesatisfying the narrow “orphan” definition.

Qualification for entry into the UnitedStates of all children that appropriatesending country authorities designate asbeing available for adoptive placement.

Revision of U.S. laws to ensure that for-eign agency decisions releasing childrenfor adoption and foreign adoption de-crees are honored by U.S. agencies andcourts. This would help ensure fullyprotected adoptive status to childrenadopted from abroad and would eliminatethe necessity for duplicative adoptionproceedings.39


Development of simple procedures toensure that every foreign adoptee receivesan English-language birth certificate froma U.S. agency upon submission of a foreignadoption decree.

Revision of U.S. citizenship laws to makecitizenship automatic upon completion ofa foreign-born child’s adoption by a U.S.citizen, just the way citizenship is now auto-matic upon birth of a child to U.S. citizenswhether they are living here or abroad.

ConclusionThe current tendency to glorify groupidentity and to emphasize the importanceof ethnic and cultural roots combines withnationalism to make international adop-tion newly suspect in this country as well asin the world at large. But restricting inter-national adoption does not put poor coun-tries in a better economic position or abetter power position with respect to for-eign governments. It is simply a symbolicgesture “for” the nation and “against” the

foreigners that is easy and cheap to make.The children themselves have no politicalinfluence, and their voices are not heard.

The nations of the world should movebeyond political hostilities and symbolicacts to focus on the real needs of children.If they did, they would accept internationaladoption as a good solution for at leastsome portion of the world’s homeless chil-dren and could begin to restructure theirlaws and policies so as to facilitate ratherthan impede such adoption. One sidebenefit would be that many more of theinfertile who want to parent would be giventhe opportunity to do so through adoption.These people now feel under significantpressure to pursue biological parenthoodthrough high-tech infertility treatment orcomplicated surrogacy arrangements—pressure that makes little sense in a worldsuffering in myriad ways from overpopula-tion. Another side benefit would be enrich-ment of our understanding of the meaningof family and of community.

1. See Bartholet, E. Family bonds: Adoption and the politics of parenting. New York: HoughtonMifflin, 1993. See also Bartholet, E. International Adoption: Overview. In Adoption Law and Prac-tice, J.H. Hollinger, ed. New York: Matthew Bender & Co., Inc., 1988, Supp. 1992 (hereaf-ter Bartholet, Overview), which contains sources and documentation for some of thematerial discussed here. See also Bartholet, E. Book review, Harvard International Law Jour-nal (1992) 33:649. For an excellent discussion of the history and current nature of interna-tional adoption, see Hague Conference on Private International Law. Report on intercountryadoption. Preliminary Document No. 1. Drawn up by J.H.A. van Loon (April 1990) (hereaf-ter Hague Report) .

2. It has been estimated that in the United States upwards of a million families are interestedin adoption, although only about 200,000 are currently taking steps to pursue it. SeeBartholet, E. Where do black children belong? The politics of race matching in adoption,Pennsylvania Law Review (1991) 139:1163, 1166 n. 5 (hereafter Bartholet, Race Matching).See generally the article by Stolley in this journal issue.

3. See note no. 1, Bartholet, Overview, pp. 10-6 to 10-7.

4. See the article by Stolley in this journal issue.

5. See note no. 1, Hague Report, p. 62, n. 96. See also Todd, D. Children new commodity in red-hot world market, Vancouver Sun, October 1, 1991, at F4.

6. See note no. 2, Bartholet, Race Matching.

7. Without the preferential visa the foreign-born adoptee would be subject to the regularquota system limiting immigrants and would, in most instances, not be eligible for entryfor many years.

8. 8 U.S.C. section 1101 (b) (1) (F) (1976). Less restrictive requirements are applicable whenthe adoptee has lived abroad with the adoptive parents for two years: there is then no U.S.home study requirement and no orphan restriction. Immigration and Nationality Act, 8U.S.C. section 1101(b)(1)(E)(1976).

9. Children whose birthfathers’ paternity has been established in countries which have proce-dures for legitimating such children, as most countries do, cannot qualify as an orphaneven if the parents have never married or lived together, and even if the father has neverknown or has abandoned the child. See U.S. Department of Justice, INS. The immigrationof adopted and prospective adoptive children, Form M-249Y (1990) pp. 18-19.

10. See note no. 9, U.S. Department of Justice, pp. 19-20.


11.

12.

13.

14.

15.

16.

17.

18.

19.

20.

21.

22.

23.

24.

Krause, H. Creation of relationships of kinship, in International Encyclopedia of ComparativeLaw. The Hague: New York, 1976, vol. 4, pp. 85-86.

Carlson, R. Transnational adoption of children. Tulsa Law Journal (1988) 23:317, 366-70.

For information about how to accomplish an international adoption, see note no. 1,Bartholet, Overview, section 1003[2], pp. 10-23 to 10-33. See also Gelber, G. Internationaladoption: Legal requirements and practical considerations, pp. 11A-1 to 11A-23 in Adop-tion Law and Practice, cited in note no. 1.

See note no. 1, Hague Report, p. 188, noting the connection between irrational legal barri-ers and abusive adoption practices. The report argues that internationally agreed to stand-ards ensuring “straight forward and well-structured procedures for intercountryadoption” should contribute to combating child trafficking and further asserts that “if pro-spective adoptive parents are offered an alternative which provides them with guidance,avoids needless costs and minimizes bureaucratic procedures, they will be less tempted tohave recourse to dubious intermediaries.”

U.N. General Assembly Resolution 41/85 of December 3, 1986, attached as Annex H to theHague Report, cited in note no. 1.

Adopted on November 20, 1989, and attached as Annex I to the Hague Report, cited in noteno. 1. Articles 20, 21, and 35 deal with the protection of children without families, adop-tion nationally and internationally, and the sale, trafficking, and abduction of children.

See U.N. Adoption Declaration Article 17 (“If a child cannot be placed in a foster or an adop-tive family or cannot in any suitable manner be cared for in the country of origin, inter-country adoption may be considered as an alternative means of providing the child with afamily”); U.N. Convention Article 21(b) (States recognizing adoption shall “recognize thatintercountry adoption may be considered as an alternative means of a child’s care, if thechild cannot be placed in a foster or an adoptive family or cannot in any suitable mannerbe cared for in the child’s country of origin”).

See note no. 1, Hague Report, pp. 174-78, which describes agreements between govern-ments, and between governments and nongovernmental organizations, that exist betweenthe Philippines on the one hand, and Australia, Sweden, the Netherlands, and Norway onthe other, between Sweden on the one hand and Ecuador and Greece on the other, andbetween El Salvador and Canada.

See note no. 1, Hague Report. The author has been serving as a member of an advisorygroup to the U.S. State Department in connection with its role in representing U.S. inter-ests in the Hague Conference negotiations.

Institutionalization is far more common than foster care in the poor nations of the world,as well as in South Korea. See note no. 1, Hague Report, p. 64, where it is noted that institu-tions, “often poorly staffed, managed and supervised, are a major, perhaps the major,‘source’ of children being adopted abroad.”

Estimates of the numbers of street children—children who essentially live in the streets—vary from 31 to 80 million, with roughly one-half located in Latin America. While most ofthese children are thought to have “continuous” contact with their biological families, it isestimated that some 25% have only “occasional” contact or no contact whatsoever.UNICEF Executive Board. Exploitation of working children and street children. U.N. Doc. EICEF/1986/CRP.3, p. 16, attached as Annex B to the Hague Report, cited in note no. 1.Others have estimated the total number of street children at 100 million, and project thatthis total will double in the next decade. Estimates of the number of street children in Bra-zil alone range from 10 to 36 million. In addition there are said to be more than 10 mil-lion refugee children.

General economic, health, and related conditions for children in Africa and Latin Americahave been getting worse in recent years, and this trend is likely to continue. UNICEF. Sum-mary, The state of the world’s children. New York: UNICEF House, 1989.

See note no. 5, U.N. Adoption Declaration Article 5 (“In all matters relating to the placementof a child outside the care of the child’s own parents, the best interests of the child, par-ticularly his or her need for affection and right to security and continuing care, should bethe paramount consideration”). See also note no. 16, U.N. Convention Article 21.

A publication on “Intercountry Adoption and Trafficking in Children” put out by Defensefor Children International, an organization that has focused almost entirely on the nega-tive aspects of international adoption, concedes that trafficking cases are extremely lim-ited in number: “[T]he vast majority [of birth parents] do not part with their child formoney, but out of despair or with the hope to ensure the child’s welfare or survival. . . .[Trafficking] cases are reported from time to time but not well documented. No doubtthey constitute only a tiny proportion of the displacements of children for adoption pur-


poses.” Lucker-Bubel. Inter-country adoption and trafficking in children: An initial assessment ofthe adequacy of the international protection of children and their rights, D.C.I. Geneva: Defensefor Children International, 1990, p. 2.

25. See, for example, 60 Minutes (CBS News television broadcast, April 14, 1991); Hunt, K. TheRomanian baby bazaar, New York Times, March 24, 1991, section G (magazine); Todd, D.International baby-buying rampant, says U.N. study, Ottawa Citizen, August 1, 1991, at A7.See generally Pollitt, J. Intercountry adoption: Serving the welfare of children, March1992, pp. 49-53, concerning international adoption issues in the Romanian context, anunpublished paper on file with the author).

26. See note no. 25, Pollitt, pp. 45-49. See also Cantwell, Who said “Best interests”? Interna-tional Human Rights Monitor (1990) 7,1/2:4 (165,000 children in Romanian orphanages,with the conditions ranging “from being unacceptable to constituting grossly inhumantreatment”). A recent documentary film is moving testament to some of the horrors. Lostand Found, directed and produced by Joshua Seftel, premiered at the Museum of FineArts in Boston, Massachusetts, on May 8, 1992.

27. See note no. 25, Pollitt, pp. 49-50. Some 5,000 children were adopted from December1989 until July 1991; 1,500 of these were adopted by people from the United States, withroughly half the children coming from institutions.

28. For a description of legal “reform” moves in Romania, see note no. 25, Pollitt, pp. 58-63.See also Cantwell, N., and David, P. Romania: Is the adoption jungle a thing of the past?International Children’s Rights Monitor (1991) vol. 8, special issue: 29-30. And see Farrow,M. Romanian orphans suffer by new rules, supporter says. Vancouver Sun, August 9, 1991,at A11 (new regulations will cause thousands to languish unnecessarily in institutions);Farrow, M. Romania’s children continue to struggle. Vancouver Sun, December 4, 1991, atB2 (20% increase in number of children in Romanian orphanages in brief period sincegovernment halted adoptions in summer of 1991 with view toward new adoption restric-tions).

29. See, for example, Tizard, B. Intercountry adoption: A review of the evidence. Journal ofChild Psychology and Psychiatry (1991) 32,5:743-56 (review of studies on international adop-tion outcomes concludes “results similar to those found in studies of in-country adop-tion”); Linowitz, J., and Boothby, N. Cross-cultural placements. In E. Ressler, et al., eds.Unaccompanied children (New York: 1988), pp. 181, 183-85 (review of the research, findingthat all the major follow-up studies “stress the successful adaptations of most adoptees”).Simon, R.J., and Altstein, H. Intercountry adoption (New York: 1991), p. 184 (“Studies of in-tercountry adoptees in the United States suggest that children who are adopted as infantsmake positive adjustments to their new environments”). Feigelman and Silverman’s studyof Korean adoptees in the United States dealt with adoptees in their adolescent andyoung adult years, when it is generally thought adoptee identity and other problems arelikely to surface if they have not before. The study revealed extremely successful adjust-ment, with the Korean adoptees measuring as better adjusted than their white Americancounterparts. Feigelman, W., and Silverman, A. Chosen children (1983) pp. 159-62. Earlierstudies of Korean adoptees had shown consistently high success rates. See note no. 1,Bartholet, Overview, p. 10-20 to 10-21 and nn. 23, 25; note no. 1, Hague Report, p. 76 and n.118. A major nationwide study undertaken in Denmark dealt with foreign adoptees 19 to25 years old, and concluded that they had adjusted well to their Danish environment, thatthe great majority had not been subjected to discrimination, and that they had experi-enced satisfactory identity development. M. Rorbech. Mit land er Danmark Copenhagen:Social Forsknings Instituttet, 1989. English abstract Denmark—My Country (1990), de-scribed in Hague Report, cited in note no. 1, pp. 76-78. For other major studies, similarlypositive in their findings, see Melchior, T. Adoption in Denmark. In R.A.C. Hoksbergen,ed. Adoption in worldwide perspective (1986), pp. 218-19. Andersson, G. The adopting andadopted Swedes and their contemporary society. In R.A.C. Hoksbergen, ed. Adoption inworldwide perspective, p. 27.

30. See note no. 29, Tizard, pp. 747-51. Thus Feigelman and Silverman found that Colombianchildren with medical problems requiring extensive treatment at the time of adoption,who were raised by U.S. adoptive parents, adjusted “remarkably well” and better overallthan did white children born in the United States and raised by adoptive parents. Seenote no. 29, Feigelman and Silverman, pp. 140-42, 144-45.

31. See Dalen, M., and Saetersdal, B. Transracial adoption in Norway. Adoption and Fostering(1987) 11:41-46, as reported in Tizard, cited in note no. 29, pp. 747-48, 749-50. See alsoHarvey, I. Adoption of Vietnamese children: An Australian study, Australian Journal of So-cial Issues (1983) 18,1:55, 59-61, 65-68 ( major study of international adoptees in Austra-lia, finding high rates of adoptive success among Vietnamese adoptees who arrivedsuffering from malnutrition, deprivation, and other traumatic early experiences). The


studies generally indicate that age at placement and preadoption trauma are the mostpowerful indicators for problems in adoptive adjustment. See note no. 29, Simon and Alt-stein, p. 190; note no. 1, Hague Report, p. 78 and nn. 122-24. These studies tend nonethe-less to show that, after some period of time for adjustment, the adoptees and theirfamilies function very well. See note no. 29, Linowitz and Boothby, pp. 183, 185. See alsoHarper, Intercountry adoption of older children in Australia. Adoption and Fostering(1986) 2:27-28, 30-31.

32. See note no. 29, Tizard, pp. 52-54; note no. 29, Feigelman and Silverman, pp. 141-43, 145,154-62 (indicating that Colombian and Korean adoptees involved had developed limitedsense of identity with culture of origin).

33. See note no. 29, Tizard, p. 755. The only study Tizard cites as providing such evidence is in-apposite because it is a study making some negative findings about the in-country adop-tion of Native children in Canada. (This study has serious methodological problemswhich undercut the significance of its findings in any event. It is reported in Bagley, C.Adoption of Native children in Canada: A policy analysis and a research report, in Simonand Altstein, cited in note no. 29, pp. 55-79.) The Feigelman and Silverman study re-ferred to in notes no. 29 and 32 found that the Korean and Colombian adoptees involvedhad high rates of adoptive success.

34. See discussion entitled “The Empirical Studies,” in chapter 6, Adoption and the role of race, inBartholet, Family Bonds, cited in note no. 1. See also Bartholet, Race Matching, cited innote no. 2, pp. 1216-21. See generally Silverman in this journal issue.

35. See note no. 29, Rorbech, described in the Hague Report, cited in note no. 1, pp. 76-78. Seealso Register, C. Are those kids yours? American families with children adopted from other coun-tries. New York, 1991, pp. 205, 207.

36. See note no. 29, Tizard, p. 746.

37. See note no. 18. See also Hague draft Convention model, discussed on page 95 in this article.

38. The adoption studies demonstrate uniformly that delay in placement is a key factor nega-tively affecting adjustment. See the studies cited in notes no. 29-35.

39. A variety of proposed and existing laws dealing with the registration, recognition, and en-forcement of judgments entered by foreign jurisdictions could be looked to as models.New Hampshire has legislation which specifically provides for recognition of a “ForeignDecree Affecting Adoption”: “A decree of court terminating the relationship of parentand child or establishing the relation by adoption issued pursuant to due process of lawby a court of any other jurisdiction within or without the United States shall be recog-nized in this state and the rights and obligations of the parties as to matters within the ju-risdiction of this state shall be determined as though the decree was issued by a court ofthis state.” New Hampshire RSA Public Safety and Welfare, section 170-B: 23 (1973). Seealso The Uniform Adoption Act (1969 Revised Act), section 17, “Recognition of ForeignDecree Affecting Adoption” (same); Uniform Enforcement of Foreign Judgments Act(1964 Revised Act) (providing for filing and enforcement of judgments entered by othercourts within the United States); Uniform Foreign Money-Judgments Recognition Act(providing for recognition and enforcement of judgments entered by non-U.S. courts).See generally discussion in Carlson, cited in note no. 12, on recognition of foreign de-crees regarding relinquishment and adoption.

international adoption: current status and future prospects

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