Academic journal article Law & Society Review

Moving Children through Private International Law: Institutions and the Enactment of Ethics

Academic journal article Law & Society Review

Moving Children through Private International Law: Institutions and the Enactment of Ethics

Article excerpt

Moving Children Through Private International Law: Institutions and the Enactment of Ethics

The world of international adoption today is undergoing profound changes. Adoption advocates speak of a state of crisis. Since 2004, the number of international adoptions has dropped dramatically. A global decrease was evidenced by at least 50 percent in 2011 since figures in 2004 (Selman 2009, 2012), and the numbers keep falling worldwide. Yet the shortage of adoptable children in so-called "sending countries"-those nations sending children away for international adoption-have not diminished the demand for children in "receiving countries"-those states to which the children are sent to be adopted by prospective parents. The continued demand has put severe pressure on institutions that facilitate international adoptions. Some argue that the situation has elicited or aggravated corrupt practices, child buying, and child trafficking in the major sending countries, such as China, Russia, and Guatemala (Smolin 2006, 2010; Graff 2008). Across these institutions, internal and public debates are taking place to devise the best ways to manage these new challenges.

One of the principal interrogations in these debates is how the current practice of international adoption relates to the application of the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption (hereafter, Hague Adoption Convention), a Convention established in 1993 that is geared toward regulating cross-border adoptions. Legal scholarship on adoption has labored over this problem by gauging the original goals and intentions of the Convention, by assessing how well countries implement its principles and directives, and by scrutinizing the effectiveness of the instrument.1 While some argue that the Hague Adoption Convention closes opportunities for adoption and can be regarded as one of the major instigators of the recent decline (Bartholet 2007:154; Clemetson 2007), others contend that the decline was precipitated more directly by local measures, independent of the Hague system (Smolin 2010: 465). On the whole, the literature has focused primarily on the regulatory aspects of the Hague Adoption Convention. Within this framework, commentators may critique the language, implementation, or adaptation of the Convention in local, organizational, or governmental settings. The solutions they suggest often remain within the realm of law, proposing more regulation or proffering institutional "best practices." Crucial questions, however, remain: in what way is the Convention enacted in daily practice? How do institutions-including their actors, experts, and stakeholders-make use of or implicate the Hague Adoption Convention in their day-to-day operations?

In this article, I examine the uses of the Hague Adoption Convention in institutional practices that must contend with reproductive desires, on the one hand, and humanitarian intentions, on the other. I discuss the fundamental issues of practice and ethics, and describe the tension between enabling adoption and policing the commodification of children. Sociolegal scholarship on adoption, or reproductive technologies more broadly, focused on this tension, bringing ethics to bear on commodity thinking (Ertman 2003; Goodwin 2010; Yngvesson 2002). Drawing from theories in economic sociology, legal anthropology, and science and technology studies, I extend these studies to focus particularly on how the Convention and its artifacts (such as forms, guidelines, and "best practice" guides) are enacted by institutions and what the consequences of such enactments are.

Enactment is a key term in science and technology studies (Lien and Law 2011; Mol 2002; Strathern 2005; Woolgar and Lezaun 2013) and is aimed at bypassing investigations of representation. In looking at how a legal technology-such as the Hague Adoption Convention-is enacted, I'm not concerned with how it has been represented, which would involve epistemological questions aimed at uncovering a more truthful world outside of representation. …

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