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This is presentation by Dr. Cantwell in an international conference held by the Presidential Committee on Ageing Society and Population Policy on Jan. 24. He contributed it for the series of Dialogues with Adoptees and shared his in depth lifelong research and field experience from a global perspective. ― ED.
By Nigel Cantwell
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On the global level, where are we today?
The 1993 Hague Convention on Inter-country Adoption (HC 93) has been useful in confronting certain problems associated with ICA ― and indeed in reducing unwarranted recourse to ICA ― but it has by no means eliminated all those problems. This is demonstrated by the fact, for example, that expert groups at The Hague are still working on ways to prevent and address illegal adoptions and to tighten financial standards.
HC 93 certainly constitutes a landmark in ongoing efforts to formalize, harmonize and regulate more strictly the processes in ICA, including financial aspects, but it fails to tackle certain essential issues.
This is because HC93 is grounded in a system whose key features are the same as when the first adoptions took place from Korea in the 1950s, initially instigated by what were known as "humanitarian" concerns. ICA is still carried out through mediation by non-state actors ― private entities or agencies ― where prospective adopters pay for the "privilege" of caring for a child. That system is fundamentally flawed but has not been seriously questioned until very recently.
Yet adoption is no longer seen as a humanitarian act as such but as a public child protection measure, and this "pay-to-care" system is not a children's rights approach to carrying it through. Unsurprisingly, no other child protection measure involving out-of-home care requires the carers to pay ― quite the contrary.
"Pay-to-care" in fact reflects an adult-centered, not child-focused, approach to ICA. It legally introduces vast amounts of money into a so-called protection process that consequently is at very high risk of being influenced or perverted by the financial interests involved. In other words, a long time ago already, ICA became a demand-led practice to which many states, agencies and individuals found it was often particularly advantageous to sign up.
For me, this is why we are ― and indeed have been for some time ― in the situation we find ourselves today, with "adoption programs" and "cooperation agreements" in place that can in no way be viewed as being based on the rights and best interests of the child.
And this is why, in consequence, we have countries ― including Korea ― that find it all the more difficult to shake off the label of "sending country" or "country of origin" assigned to them by "receiving countries." This is not just semantics: it signifies an expectation that "sending countries" will keep on "sending," regardless of the real need or the availability of alternatives.
An important new feature of the ICA landscape, nonetheless, is the tremendous impact that the voices of inter-country adoptees have had in recent years ― by no means just in pursuit of efforts to trace their origins but also in identifying illicit acts relating to their adoption and, thereby, exposing huge weaknesses in the way ICAs are carried out to this day. Thankfully too, academics and activists have provided evidence to support their efforts to demonstrate the profoundly concerning nature of the ways in which the adoption of children abroad has been, and still is, conceived and organized worldwide.
As a result, an increasing number of countries are looking more closely at the nature and consequences of their participation in ICA. And many decide to impose a moratorium ― in other words, suspend ICAs ― while they do so.
Outcomes of moratoria
Imposing a moratorium is invariably a recognition that widespread, systematic and serious problems associated with ICA exist and that they have not or cannot be tackled effectively.
Opponents of suspensions, often located in receiving countries, complain that a moratorium prevents other children from "benefitting" from adoption abroad, and thus runs counter to their best interests. However, such arguments cannot be allowed stand: the seriousness of the issues that generate suspensions means that the risks for the rights and best interests of those other children would of course be particularly high. At the same time, great care must be taken to ensure that all adoption cases pending at the time of the suspension are reviewed systematically, so that decisions consonant with the rights and best interests of the children concerned can be made expeditiously.
In fact, a significant proportion of countries have at some point suspended all ICAs of their children for a more or less lengthy period. Thus, for example, between 1991 and 2009, no less than 11 of the 19 countries in Central and Eastern Europe and Central Asia were obliged to resort to a moratorium ― and in four cases they had to do so on two separate occasions. Many countries in Africa and elsewhere have followed suit, particularly in the last 10 to 15 years. This shows the degree to which serious abuses of ICA have now been acknowledged worldwide.
Temporary suspensions are often used to allow for the development and application of more effective safeguards for ICA. To date, such measures have simply involved improved adherence to Hague obligations but have not tackled the system itself. Nonetheless, the result has invariably been a considerable reduction in the number of children subsequently adopted abroad, with domestic solutions being privileged and no discernible increase in the number of children in residential care. Indeed, in some instances, such as Guatemala, there has been a substantial fall in the number of children placed in hogares (children's homes) precisely because the option of subsequent ICA does not presently exist, which was the main reason for their being placed in those facilities.
In some cases, such as Romania, an initially temporary suspension was made permanent, except for citizens abroad, whereas certain other countries, such as Mali, have ordered permanent suspension from the start, though also with the exception of their diaspora. Significantly, both Romania and Mali were already contracting states to HC93 when those decisions were made. Again, as with temporary suspensions, there is no evidence of negative ramifications in terms of children's rights ― in fact the reverse is true.
Receiving countries, for their part, have tended to impose suspensions unilaterally on adoptions from specific countries that they consider unable or unwilling to respect the rights and best interests of children being proposed for ICA. In other words, each receiving country has determined, according to its own criteria, that the situation in a given country from where children are being adopted is unsatisfactory, and crucially they lay responsibility for this squarely on that other country. Last year, however, the Netherlands made the ground-breaking decision to suspend all inter-country adoptions. This is the first time that a receiving country, under Hague procedures, essentially asserts that the rights of actual or potential inter-country adoptees from anywhere cannot be securely protected under the current system ― one that relies on private intermediaries and the "pay-to-care" principle, leading to adoption "programs" and cooperation agreements. Obviously, we do not yet know the full ramifications of this recent Dutch decision but there is growing pressure on other receiving countries to undertake their own similar, dispassionate analysis of ICA practice.
What might be the path forward for Korea?
In light of all the above, may I make the following suggestions as Korea reviews the situation.
First, no longer refer to Korea as a "sending country" and do not accept others using that term: doing that will set the scene for Korea's attitude towards dealing with the issue.
In Korea, virtually all ICAs concern children of single mothers. This is very different from the realities of many other countries, and it offers clear opportunities for Korea, a resource-rich country, to develop a wide range of initiatives that would enable those children to remain with their mothers and families ― or at the very least secure suitable care in Korea itself.
It should never be forgotten that the preamble of HC93 states only that ICA "may offer the advantage of a permanent family to a child…", not that it always has to be resorted to. Crucially, therefore, HC93 does not oblige contracting states to carry out ICAs, it simply applies in every case if and when they choose to do so. Consequently, ratification of HC93 is on the understanding that this provides a legal framework within which an adoption abroad will be undertaken, should it be deemed truly necessary on a case-by-case basis.
If suspension of ICAs is enacted, a mechanism must first be foreseen to ensure that legitimate ICAs under way at the time ― what we call "pipeline cases" ― are dealt with appropriately and expeditiously.
Not only should formal programs and agreements on ICA (and thus the operations of all agencies) be halted at that moment but, even if the suspension itself is temporary, they should never be restarted.
In sum, while I would not say that never should a single child ever again be adopted abroad from anywhere, I would definitely say that no child should be adopted abroad under the current system.
I have never forgotten what Indian activist Gita Ramaswamy told me when I was investigating illegal adoptions in the state of Andhra Pradesh back in 2002. "Inter-country adoption is a social experiment that has failed", she said ― and under prevailing conditions, I certainly think she was right.
Nigel Cantwell is an international consultant on child protection policies based in Geneva.
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