Academic journal article Duke Journal of Comparative & International Law

The Road to Parentless Children Is Paved with Good Intentions: How the Hague Convention and Recent Intercountry Adoption Rules Are Affecting Potential Parents and the Best Interests of Children

Academic journal article Duke Journal of Comparative & International Law

The Road to Parentless Children Is Paved with Good Intentions: How the Hague Convention and Recent Intercountry Adoption Rules Are Affecting Potential Parents and the Best Interests of Children

Article excerpt

INTRODUCTION

The Hague Conference on Private International Law's Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Convention) (1) went into force in the United States in April 2008. (2) The aim of the Hague Convention is to provide needed regulation for intercountry adoption. (3) However, this Note questions whether the Hague Convention is actually accomplishing its goals and whether the best interests of children are actually being met. The Hague Convention seeks to provide standards for and transparency of the intercountry adoption process, but while the aims are honorable, the practical reality is that children may be negatively affected. Preferred countries for intercountry adoption, such as China, Romania, Guatemala, and Vietnam, have reacted to global scrutiny by tightening their regulations and in some cases closing their borders altogether. Examining such countries will provide insight into how the Hague Convention is affecting children. The system does indeed need safeguards, but at what cost?

This Note argues that the Hague Convention process inadequately protects vulnerable children. Part I discusses the need for reforms in intercountry adoption. Part II focuses on how the Hague Convention seeks to implement such reforms, and how current regulations are not ensuring that the best interests of children are realized. Part III, by looking at specific countries, demonstrates how restricting intercountry adoption can lead to less than optimal results for children. Finally, Part IV briefly suggests a proposal to remedy the flaws in the current Hague Convention.

I. HISTORY AND DEVELOPMENT OF INTERCOUNTRY ADOPTION

Due to its high demand for children, the United States is a major player in intercountry adoptions and has been for quite some time. Potential American parents have looked outside the country as the availability of domestic infants has waned. (4) The United States issued immigrant visas to 19,613 orphans in 2007, which is almost three times as many visas as it issued in 1990. (5)

An orphaned child in need of a permanent home and family is not a new phenomenon. The phenomenon of intercountry adoption took off after World War II and grew in the following decades as natural disasters, wars, and the Acquired Immune Deficiency Syndrome (AIDS) epidemic left increasing numbers of now-orphaned children without traditional family care. (6) Even with increased numbers of orphans, a country's decision whether or not to allow its children to be adopted internationally often depends on its current political and social situation. (7) The usual suspects with high rates of intercountry adoptions are often poor and economically unstable. (8) Sub-Saharan Africa is reported to have the highest proportion of orphans, but the "absolute numbers of orphans are much higher in Asia." (9) While exact numbers are hard to come by, estimates from 2003 showed 143 million orphans "in 93 countries in sub-Saharan Africa, Asia, Latin America, and the Caribbean," with roughly 15 million of those orphaned due to the HIV/AIDS epidemic. (11) Generally, wealthy countries are the receivers of adopted children, while underdeveloped and developing countries are the senders. (11) Furthermore, a serious supply and demand problem exists. (12) Healthy infants are in high demand, with many potential parents reluctant to adopt older children or ones with special needs. While the same demand (if not higher) exists for adopted children as it did a few years ago, major senders of children are creating narrow restrictions and regulations, and some are cutting off the flow of adopted children altogether. (13) These restrictions are to some degree warranted, as intercountry adoption procedures are not without imperfections.

A. Perils and Pitfalls of Intercountry Adoption

Countries such as China and Romania are generally reluctant to participate in intercountry adoption for two main reasons. …

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