By- Likhita Agrawal & Vatsalya Pankaj, Third Year, B.A.LL.B.(Hons.) students at
National Law University, Nagpur
INTRODUCTION
Inter-country adoptions refer to adoptions wherein the nationality and place of residence of the adoptive parents and the adopted child lie in different nationalities.[1] Such adoptions are often seen where one country has lower birth-rates and an aging population, a phenomenon seen in developed countries and countries with huge birth-rates and a relatively young population, a phenomenon seen in developing countries.[2]
As such, adoptions involve sovereign states, multiple conventions govern it. The Hague Convention on Protection of Children and Cooperation in Respect of Inter-country Adoption, 1993 (“Hague Convention”), and Convention on the Rights of the Child, 1990 (“CRC”) outline the rights of the child and the responsibilities of both states towards the child. It is pertinent to note that any legislation or treaty for a child works on the “Doctrine of Best Interest,”[3] that is, the law should be interpreted and applied to benefit the child.
However, on the point of inter-country adoptions, many objections have been raised. Firstly, the child loses the culture and heritage of the country of birth and is “forced” to accept the culture and society of the country of adoption. Secondly, often Scholars have highlighted that while adoption does lead to a severance of ties with the family of birth and replaces it with new relations to the family of adoption, the bond between the country of the birth and the child cannot be broken.[4] Such objections have led to the call for the “Doctrine of Domestic Preference,” which essentially provides that if the child can be adopted by a parent in the country of birth, then that should be preferred over adoption by a family that is situated outside the country.
There are more serious risks that come with Inter-country adoptions too. Often it is seen that such adoptions become a money-making exercise for people looking to exploit the system.[5] Such children on the pretense of adoption are being trafficked, leading to severe human rights violations. The blog shall be discussing the multitude of facets of Child Adoptions, the regulatory mechanisms, and how to prevent them from becoming unethical human trafficking exercises.
CHILD TRAFFICKING AND INTERNATIONAL CONVENTIONS ON CHILD RIGHTS AND ADOPTIONS
The CRC focuses on the basic human rights of children with the view of safeguarding the interest and overall development of children. The convention aims at the ‘three Ps,’ i.e., rights of children to provision, protection, and participation of the children. Article 21 of the convention talks of the recognition of adoption between different countries. It states that the child may be adopted by a family other than his own country when it can be believed that the circumstances in the birth country are not in his benefits. This implies that through the adoption, the country in which the child would be brought up would serve for a better environment and play a positive impact on the growth and development of the child.
Further, it calls for ‘appropriate measures’ to be taken to ensure that the adoption process does not involve any monetary consideration. However, it is noteworthy that the term appropriate measures are subjective. What may be appropriate for one case may not be the case for another and hence requires elucidation. This is to prevent it from being used as a veil for the heinous act, such as child trafficking.[6]
Additionally, the “best interests” of the child also has a various interpretation. It cannot be said that merely because a living condition in one country is bad, it will improve on adoption by another country. Often it is seen that in cases of adoption of a girl child to countries of Africa and Asia, they are exposed to Female Genital Mutilation in the name of the tradition and culture. Thus, while the intention was to secure better living conditions, the children are subject to more severe consequences. This is especially important as Article 14 of CRC expresses that the state must consider the right of the child regarding the freedom of thought, conscience, and religion, and it cannot be ensured in some countries with a specific religion.
The other convention which specifically deals with intercountry adoption is the Hague Convention. The convention, while having noble objectives of facilitating and regulating Intercountry Adoptions, fails to achieve its goal. This is so as it more of a restrictive nature and comes with several compliances that would be required to be fulfilled. The numerous compliances burden the states and the adoptive parents and hence difficult to follow. In place of being restrictive, it should be positively promoting these adoptions.
Additionally, jurists have viewed that; the convention is not sufficient to curb the problems of child trafficking. Firstly, The regulations sometimes take away a good fortunate life of the children or sometimes push them in a perilous situation. Secondly, while the preamble of the convention mentions that goal of abolishing the buying-selling of the children, none of the Articles of the convention calls upon states to prohibit it. Further, there is no obligation created on parts of states to punish such offences. Furthermore, the convention also lacks to encompass anything about the independent adoption practices, which are a major source of child trafficking. Thus, the deterrence factor is absent in the convention, which could prevent people from conducting such inhumane activities. Jurists have pointed out that the process of intercountry adoption should have a uniform and single adoption procedure, which can eliminate the confusion and can lead to efficient governance. Therefore, the issue of child trafficking must be dealt with in a vigilant manner, which is not the case in the convention.
Along with these conventions, there are certain other conventions which prohibit child trafficking. The point which needs to be taken into consideration is that though all these conventions mentioned above condemn the practices of trafficking bit, none of these discuss either its inter-relation with inter-country adoption or the measures to be taken to curb trafficking conducted under the shield of inter-country adoption.
CONTEMPORARY ISSUES OF CHILD TRAFFICKING
While the conventions fail to relate Inter-country adoption to child trafficking, there are multiple instances where on the pretense of adoption, the reality of child trafficking as taken place.[7] Examples can be taken from Thailand, wherein hundreds of children were “adopted” through the process of trafficking. There are many reasons why such incidents occur. Firstly, while the state must which, the child originally belongs to run background checks on the family of adoption, once the adoption process is complete, the child is outside the jurisdiction of the state. Hence, as the child, in essence, is no longer a national of the original state, there is no responsibility on the state, giving the adoption to check for the welfare of the child.[8] This leads to the complexity that, if the child was indeed trafficked and never reached the intended country, then which country should take responsibility. This leads to the child becoming essentially stateless, as he would cease to be a national of state of birth and wouldn’t be able to acquire the citizenship of the state of adoption because he would find himself in a different country, which would be against his right to statehood as per Article 9 of UDHR.
There are further issues that come with international adoptions. The commercialization of the act is strictly prohibited; however, it seems to be rampant. Also, due to vaguely worded Articles, the providing of gifts would be allowed, but the providing of bribes for adoption is strictly prohibited.[9] There is a multitude of things that are wrong with the existing framework for international adoptions, and they need a serious relook.
CONCLUSION
It is clear that Inter-country adoptions come with inherent risks. There is the risk of culture, identity, and often even the risk of trafficking. At the same time, some treaties regulate such adoptions and are specially designed to prevent exploitation of the system. There is a need for countries to take more responsibility and cognizance of human trafficking issues. The doctrine of the best interest of the child must not be limited to only finding a suitable family for the child but also extend up to ensuring that the child reaches such a family safely.
Further, it must be the responsibility of the receiving country that such adoptions don’t become a tool for criminal offenses. There is a need to stop the use of intercountry adoption as a veil for the brutal practices of trafficking. This is an issue that has not been highlighted yet. However, there is an urgent need for it to be recognized as so to prevent the exploitation of human rights that is currently going on.
References
[1] Jordan Bunn, Regulating Corruption in Intercountry Adoption, 52 Vand. J. Transnat'l L. 685 (2019). [2] Mark Eade, Inter-Country Adoption: International, National and Cultural Concerns, 57 Sask. L. Rev. 381 (1993). [3] Hague Convention, art. 3(1); See also Celica Bojorge, Intercountry Adoptions: In the Best Interests of the Child, 2 Queensland U. Tech. L. & Just. J. 266 (2002). [4] David M. Smolin, Intercountry Adoption as Child Trafficking, 39 Val. U. L. Rev. 281 (2004).
[5] Trish Maskew, Child Trafficking, and Intercountry Adoption: The Cambodian Experience, 35 Cumb. L. Rev. 619 (2004). [6] Supra note 4. [7] Supra note 5.
(Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)
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