The American professor of law David Smolin calls for a moratoria on intercountry adoption, which nowadays involves around 8,000 children annually who are adopted from the Global South and post-Communist Central/Eastern Europe to the West (North America, Western/Northern/Southern Europe and Australia/New Zealand):
Now is the time for moratoria on intercountry adoption. Further, resuming intercountry adoption should depend on certain conditions. Such a call is neither radical nor unattainable, but would be entirely consistent with international law and the historical development of intercountry adoption.
In summary, the message is simple: intercountry adoption should not be done until and unless it can be done right. Doing intercountry adoption correctly means both meeting international standards and also providing remedies for past adoptions which violate those standards.
The majority of intercountry adoptions over the last sixty years have occurred in contexts of chronic violations of current international standards, in the core sense that the separation of children from their original families frequently was unnecessary and hence adoptions induced and/or exacerbated unnecessary separations of family members.
Remedies for such past practices have only rarely been provided. In practice, preventing future illicit practices without addressing past illicit practices has not worked, because it creates cycles of abuse amidst never-ending impunity.
Hence, doing intercountry adoption correctly means not only preventing future illicit practices, but also providing remedies for past illicit practices.
Hence, there should be a priority on family preservation, creating duties to act affirmatively to avoid unnecessary temporary separations and to re-unite children with their families where separations occurred. Children should not be obtained for intercountry adoption by fraudulently tricking parents and families, by purchasing children, or by stealing or kidnapping children.
Children should not be obtained for intercountry adoption – an inherently expensive practice – merely due to poverty. Children should not be taken from a parent or parents merely because the parents are not married. Where children cannot be maintained in their own families, alternative care and adoption options should generally favor those within the child’s nation and closer to the child’s origins. Adopted persons have a right to information regarding their origins that is accurate, at least by the time they become adults.
These standards acknowledge that sometimes children must, for their own protection and safety, be separated from their families due to severe abuse or neglect. These standards also acknowledge that sometimes separations occur despite the best efforts of all involved.
However, intercountry adoption itself – the demand for children by those wishing to adopt, the possibility of monetary remuneration for intermediaries or governmental actors, the very existence of intercountry adoption systems – should not create separations.
To the contrary, governments and NGOs should prioritize family preservation, and any intercountry adoption systems should reinforce, rather than weaken, this priority on family preservation.
The majority of the estimated one-million intercountry adoptions completed over the last sixty years (1960 to 2020) occurred in contexts of chronic violations of basic ethical principles as now codified in international instruments.42 These unethical adoption systems have profoundly altered the lives of hundreds of thousands of adoptees and millions of original and adoptive family members of those adoptees.
Adoptions due primarily to poverty have been a typical part of the intercountry adoption system throughout its history, impacting adoptions from Latin America, Africa, Southeast Asia, East Asia, South Asia, and Europe. Family preservation efforts to address poverty and avoid adoptive placements have been the exception rather than the rule. Intercountry adoptive systems have typically accepted relinquishments and abandonments caused primarily by poverty as a fact of life over which they have no control and usually have made little or no effort to offer financial assistance to preserve families.
In many cultures it is conceptually easy to add family – extra fathers and mothers or uncles and aunts. Children may circulate fairly freely among trusted adults. Further, in some cultural contexts “hostels” or what are labeled “orphanages” in practice are boarding schools for the poor: a way in which poor families under stress ensure that their children will receive an education and food, while intending to maintain parental status and relationship.
The concept of full severance adoption, in which a parent will permanently lose parentage and any contact and relationship with the child merely through signing a document, is an unfamiliar, even ludicrous, practice to much of the world. These widespread cultural contexts make it very difficult in practice to evaluate a purported “consent to adoption.”
The consent may be understood by parent(s) as consent to a boarding school experience or some kind of child sponsorship, exchange program, or temporary placement. To the degree that “adoptive” parents are in view, they will likely be viewed as new and additional family members, rather than as complete replacements for the birth family.
Under these circumstances, it has been very easy for intermediaries to intentionally extract children for adoption under the false pretenses that the children would remain in law and fact the children of their original families.
Indeed, even intermediaries who intend to explain the meaning of full adoption may have trouble making themselves understood by first families that lack a cultural context for such an arrangement. Intercountry adoption has been understood by innumerable first families as educational and economic opportunities for their children that ultimately would assist the family, rather than as permanently severing the child’s relationship with the family.
Hence, this disjunction between the concept of full severance adoption and common cultural practices in many places has contributed both to intentional child laundering schemes, and also to unintentional placements despite a lack of true consent and real understanding by the birth family. Countless parents who intended to benefit their children with opportunities and support while maintaining contact and parental status, have found themselves permanently severed from their children.
To translate this to the cultural practices of some western parents: it is as though you signed a contract for a summer camp or boarding school or exchange program for your child, only to be later told that you signed a contract to permanently relinquish your child, and would never see your child again. Then you are told that it is your fault and there is no remedy, since you “signed” – a permanent and irrevocable act.
Children who are accidentally separated from their children, for example, while traveling or in other understandable circumstances, become subjects of adoption and intercountry adoption systems with little or no effort made at family re-unification. Low levels of education and literacy and a multitude of national languages can contribute to the difficulties in accomplishing re-unifications. The lack of effort made toward re-unification is sometimes due to the financial incentives favoring adoption.
One way to hide the origins of a child is simply to record them as being found abandoned. Further, in China, a prominent country of origin, relinquishments have been unlawful, making abandonments the normative route for children to come into care. This limits the possibilities of family preservation efforts while creating a shield for misconduct, since every case is an abandonment with the origins and original situation of the child and the child’s family officially unknown.
The family bonds created and lived by adoption radically complicate the question of remedies, placing adoption triad members in conflicted and extraordinarily difficult dilemmas. Hence, remedies should seek to address those conflicts and dilemmas. The passage of time does not eliminate the need for remedies, but rather changes the available remedies. Wrongful adoption still matters after more than a half century to those whose lives were profoundly altered. Hence, remedies must be long-term and intergenerational.
Wrongful separations of children from families induced and/or followed by intercountry adoption has been a wrong without a remedy for more than a half century. The instances in which any kind of acknowledgement or remedy has been facilitated or provided by governments are quite rare. In general, wrongdoers have been able to act with complete impunity. In general, adoption triad members have been forced to manage the harms and traumas on their own, sometimes with the assistance of NGOs.
Indeed, to a significant degree, being wrongfully separated from family and then adopted has not even been treated or defined as a harm or wrong at all. Instead, the positive image of adoption has defined these wrongs as ultimately beneficial and hence in no need of a remedy.
Even in the rare cases of some kind of criminal prosecution, the complex question of how to handle adoption triad relationships over lifetimes amidst these crimes has been usually left unaddressed. Remedies for adoption triad members that would address the wrongful separation have generally been neglected. Again, there are a few exceptions, but these are so notable particularly because they are so very rare.
Beyond the issue of providing remedies for individual cases is that of providing national responses to long-standing practices that violate human rights. Some degree of national reckoning has occurred in a few states in response to the wrongful taking of children from indigenous peoples, and from single mothers, generally in the context of domestic adoption or apart from adoption.
However, in the context of intercountry adoption such responses have been even more rare, or are just in early stages. The Impunity Commission in Guatemala is a rare exception, although it did not really include the provision of remedies for victims in regard to the illegal separations of children from families. Unfortunately, it has been more common for governments to create obstacles to systemic or individual remedies.
For example, an NGO assisting Ethiopian birth families victimized by wrongful intercountry has been threatened by European governmental actors with the claims that they are violating privacy laws, even though their information came directly from birth families rather than from adoption files. Indeed, a birth mother who wanted to tell her story regarding the loss of her child to a domestic adoption to my own law school class was threatened by court action.
Hence, privacy laws have been used as a shield by governmental actors to protect unethical or illicit adoption practices against being disclosed to the public or remedied. Governments typically have failed to do their job of preventing and investigating and remedying illicit intercountry adoption – and yet when others work on these tasks, governments sometimes try to block their work. Unfortunately, governments have often done more to cover up and hide illicit and unethical adoptions, then to investigate and remedy them.
There are now far more people harmed by the lack of remedies for past practices, than would be helped for the foreseeable future even if intercountry adoption could be completely reformed.
There are sixty years of misconduct, and substantial harm to millions of people, to address. In any event, reforming intercountry adoption without addressing the harms of the past is not really practical. Such an approach creates a never-ending cycle of impunity. No matter how many reforms there are, if there are no consequences or remedies for past illicit practices, this practice of impunity will tend to fuel new abuses.
So long as the impression continues that “the end justifies the means,” that the good of adoption is far greater than the harm even in cases of children wrongfully separated from their families, the abuses will continue.
Most likely, states and societies will never appreciate the profound harms caused by wrongful adoption practice until and unless there is a time of national accountability for the past. It is simply too easy to minimize these harms, because the concept of a harmful adoption is a contradiction to the mental construct of adoption as a wonderful, generous and even saving act of love.
And yet, until and unless adoption policy truly takes into account the depth and scope of harm done by intercountry adoption, rational decisions about the future of intercountry adoption are impossible.
Illicit intercountry adoption practices are often the “perfect crime” in the sense of a crime which will almost surely go unpunished. Wrongful adoption is a crime whose methodology effectively disables its victims from timely complaining or acting.
Birth families are usually too powerless and poor to effectively seek redress. Adoptees as children often are unaware of their own history and victimization and due to their developmental processes may not feel ready to investigate their history until decades after the crime.
Adoptive parents are usually unaware of the wrongdoing, and in the context of full severance adoption tend to see birth families as a threat rather than an opportunity for further relationships. Hence, it is not surprising that it is rare for there to be any kind of legal accountability, criminal, civil or administrative, for illicit adoption practices.
The negative view of moratoria views each intercountry adoptive placement prevented as a harm to that child, regardless of whether it is a statistically significant harm overall. To the contrary, it is more likely that more children would be helped than harmed by such moratoria.
Moratoria would most likely prevent a significant number of intercountry adoptive placements that violate international standards. Most likely, a significant proportion of those adoptions would have been situations where the child’s separation from their family was induced by the availability of intercountry adoption, and/or was the result primarily of child laundering, poverty, or non-marital parents. Intercountry adoption in those cases would have exacerbated an unnecessary separation of a child from the child’s family.
Moratoria would eliminate the “demand” pull of intercountry adoption, whereby children are removed from their families to satisfy the demand for children from receiving states and accompanying financial incentives for intermediaries. Thus, the moratoria would in itself most likely result in more children remaining with their families, even without more active family preservation efforts.
If implemented correctly, a moratoria on intercountry adoption would also refocus attention on active family preservation efforts, as well as greater attention to suitable domestic solutions. Thus, even as to the children who are denied intercountry adoptive placements due to a moratoria, it is likely that a significant number would end up in a different, but entirely appropriate—even better—situation. It is an unfortunate kind of arrogance, which can be labeled neo-colonialist, to assume that children are always better off by being removed from their country of origin.
One of the ironies of illicit adoption practices is that they victimize additional children beyond those placed abroad. The prospects of large intercountry adoption fees can induce some orphanages to bring children into orphanages to effectively be a kind of catalogue of options for prospective adoptive parents. The orphanages know only a small percentage will be sent abroad, but the financial benefits of the international placements nonetheless motivate a broader practice of building up an “orphan” population.
This is related also to the practice of orphanage trafficking, which is the practice of bringing children unnecessarily into residential care for the purpose of attracting donations from usually foreign donors. Moratoria on intercountry adoption is thus one part of a broader agenda of preventing the unnecessary and harmful pulling of children into residential care for purposes of profit.
I have finally realized that moratoria are a necessary part of the agenda of prevention and remedy of illicit intercountry adoption practices. Countries, like Guatemala, that have taken seriously the task of accountability for past illicit adoption practices have instituted moratoria. Even the United States has instituted moratoria in relationship to specific countries, like Cambodia and Vietnam. A call for broader moratoria is based on the evidence that violation of international standards in intercountry adoption is a much more widespread problem than has been recognized. A call for broader moratoria is also based on the glaring absence of remedies for the vast majority of instances of illicit adoption practices.
Enough is enough. The time for accountability is overdue. Let decisions about the future of intercountry adoption finally be made in full view of the past. Let the future of intercountry adoption depend on the willingness to acknowledge and remedy, so far as is possible, the past.