Adoption in Relation to

International Law
University of Wisconsin Whitewater
POLISCI 350: International Law
Liz Hausher
11/24/2014

International adoption is the process of adopting children from a country other

than the adopters own. There are crucial laws and processes that must be followed
before a family can even be considered for adoptive parenthood. These laws have been
put in place, however, to protect both the adoptive parents and the children. In each
country, there are multiple laws that one must follow in order to adopt internationally, but
there are often differences between these laws that make the process difficult. The
Hague Convention on the Protection of Children and Co-operation in Respect of
Intercountry Adoption is an important piece of international legislation that helps to
create a universal set of policies from which member countries can perform safe and
well-regulated adoptions.
Historically, there have been several issues related to international adoption one
of which being the trafficking of children. According to E.J. Graff, who writes for the
American Prospect, Between 1998 and 2008, nearly 30,000 Guatemalan-born children
(mostly infants and toddlers) were adopted by U.S. parents. In some years, that meant
that an astonishing 1 out of 100 children born in Guatemala was adopted by an
American family. For most of that time, everyone but the prospective adoptive parents
knewor in some cases actively chose to unknowthat the countrys international
adoption system was a cesspool of corruption and crime, and motivated by money.
Non-governmental organizations (NGOs) and news organizations reported in detail,
repeatedly, that the countrys babies were systematically being bought, coerced, or
even kidnapped away from families that wanted to raise them. (E.J.Graff). This is just
one of many examples of child trafficking going on in under developed countries. In
many third world countries child trafficking is used to bring in income and many adoption

agencies will even pay for someone to go out and kidnap a child from their family
(Smolin).
Another issue that international adoption has faced in the past, especially in third
world countries, is fraudulent adoptions. In many third world countries, parents make
the tough decision of putting their child or children into an orphanage while they are
focusing on work or in poverty (Cherot). In certain cases, the children will even receive
education benefits while they are staying in orphanages (Cherot). According to the law,
adults that are looking to be potential parents have to wait until the biological parents
give up their right as a parent before they are able to adopt a child from an orphanage
(Cherot). When it comes to many cases that take place in third world countries, that
isnt how the process necessarily goes. There are many different stories about parents
looking for their child once they are ready to bring them home, only to find out that they
are too late and that their child has been sold (Cherot). New mothers may be told that
their baby died during birth or they will be drugged and their child will be stolen
(Hollingsworth). These babies are then given a new identity and sold for a very
profitable amount of money (Cherot). Due to the adoption processes in many countries,
it was decided that a law needed to be put in place that not only protected the children,
but also the birth parents and adopting parents as well.
Countries that are not members of the Hague Convention on the Protection of
Children and Co-operation in Respect of Intercountry Adoption may be performing
illegal adoptions. Before the United States became part of The Hague Convention in
2008, there were questionable adoptions going on. According to the members of the
Child Welfare League of America, there was a particular case that was investigated

during 1999 to 2000. Baby J, born in the United States in December 1999, was placed
with a private agency for adoption. The birthmother had contacted the agency during
her pregnancy and received financial and medical support from it until Baby Js birth. A
couple in the United States declined to adopt Baby J because, at the time of her birth,
the baby tested positive for cocaine. Within days, a new adoptive family was found.
The fact that the couple were British citizens living in England scarcely slowed the
process. By her fifth day of life, Baby Js adoption agreement was signed, $19,000 was
transferred, and the prospective adoptive father had picked up his new daughter and
returned with her to the United Kingdom. (Child Welfare).
Normally in adoption cases, it takes months before a child is able to go home
with their adopting parents. The parents must be seen as suitable to even start the
process of adoption. This lead to, the adoptive family came to the attention of British
child protective services when Baby J was taken for medical treatment. After a court
hearing, at which social services concerns about the suitability of the couple were given
in evidence, the baby was made a Ward of Court, placing her under the Courts
supervision. She was subsequently placed with a foster family. ISS-UK contacted ISSUSA for assistance. Through the coordinated efforts of both ISS-UK and ISS-USA,
authorities at the Texas state child welfare agency were made aware of the fraudulent
credentials of the preparer of the home study, on the basis of whose assessment they
had placed Baby J. Under the 1980 Hague Convention on the Civil Aspects of
International Child Abduction, the private Texas adoption agency petitioned the High
Court of England for return of the infant. Baby J was returned to the United States in
July 2000. (Selinski, Naughton, Flanagan, Fry, and Pickles).

After an investigation was held, it was found that inadequate home studies had
been conducted by the same preparer in the United Kingdom; the children had been
placed by the same U.S. private adoption agency; and, sadly, the same serious
questions regarding suitability of the families adopting of the children were raised by the
courts and British Authorities. In January 2000, new British legislation closed the
loophole in its regulations by making it illegal to have a home study done in the United
Kingdom by an independent social worker. (Selinski, Naughton, Flanagan, Fry, and
Pickles). After the investigation of this case in the United Kingdom, a law was passed
stating that it was now illegal to do a private home study by a case worker. As of
February 2000, home studies are only allowed to be done by accredited social workers
that are part of an agency that is approved by the United Kingdoms Department of
Health for Intercountry work (Selinski, Naughton, Flanagan, Fry, and Pickles). Cases
such as this have led to not only the creation of the Hague Convention on the Protection
of Children and Co-operation in Respect of Intercountry Adoption, but also to the
implementation of it.
Prior to the drafting of The Hague Convention, there were two other laws that
were created. The first of which is the UN Declaration Relating to the Welfare of
Children, with Special Reference to Foster Placement and Adoption Nationally and
Internationally and was put in place in December of 1986 (General Assembly). This
Law covers general family and child welfare, foster placement, and adoption (General
Assembly). An important part of this law is under the General Family and Child Welfare
principle in article 5 that states, In all matters relating to the placement of a child
outside the care of the childs own parents, the best interests of the child, particularly his

or her need for affection and right to security and continuing care, should be the
paramount consideration. (General Assembly). This law focuses mainly on the childs
best interests and what measures need to be taken to keep them in a safe, and loving
environment.
The second law that was set in motion in 1989 prior to the Hague Convention
was the UN Convention on the Rights of the Child (Conventions on the Rights of the
Child). In addition to the UN Declaration Relating to the Welfare of Children, Article 12
focuses on States Parties shall assure to the child who is capable of forming his or her
own views the right to express those views freely in all matters affecting the child, the
views of the child being given due weight in accordance with the age and maturity of the
child. (Conventions on the Rights of the Child). Another important aspect of this law is
stated in Article 21 it says that, States Parties that recognize and/or permit the system
of adoption shall ensure that the best interests of the child shall be the paramount
consideration and they shall: (a) Ensure that the adoption of a child is authorized only
by competent authorities who determine, in accordance with applicable law and
procedures and on the basis of all pertinent and reliable information, that the adoption is
permissible in view of the childs status concerning parents, relatives, and legal
guardians and that, if required, the persons concerned have given their informed
consent to the adoption on the basis of such counselling as may be necessary;
(Conventions on the Rights of the Child). In addition to the UN Declaration Relating to
the Welfare of Children this law gives opportunities for the child to have a say in the
decisions that are being made for them, if they are old enough to do so. It also enforces
the use of accredited authorities when dealing with the adoption process. Both of these

laws help to aid in the creation of the Hague Convention on the Protection of Children
and Co-operation in Respect of Intercountry Adoption.
Many international adoption laws focus on the well-being and safety of the child
due to serious concerns of child trafficking and child abuse (HCCH). One of the major
laws that protects children is The Hague Convention on the Protection of Children and
Co-operation in Respect of Intercountry Adoption (HCCH). This was designed in 1993
and adopted by the U.S. in 1994, but its full affect was not implemented until April of
2008 (Encyclopedia Britannica Online). According to The Hague Conference on Private
International Law, better known as the HCCH, there are currently 90 members, and the
majority of the countries who do not participate in this convention come from Africa or
the Middle East (Zhang and Associates). This law is an international agreement that
ensures that intercountry adoption has the childs best interests in place (HCCH). The
convention also focuses on establishing a system of cooperation among the members
to ensure that the children are safe from being abducted, for sale, or entered into child
trafficking (HCCH). This convention is extremely important to the United States because
the United States receives more children from international adoption than any other
country (Pierce). The most important parts of the Hague Convention are focused on in
Article 1, which states that, The objects of the present Convention are a) to establish
safeguards to ensure that intercountry adoptions take place in the best interests of the
child and with respect for his or her fundamental rights as recognized in international
law; b) to establish a system of co-operation amongst Contracting States to ensure that
those safeguards are respected and thereby prevent the abduction, the sale of, or traffic

in children; c) to secure the recognition in Contracting States of adoptions made in

accordance with the Convention. (HCCH).
They are many differences when it comes to adopting a child that isnt from a
country that is a member of the Hague Convention. For starters, the adoption service
provider that you go through from a country that is a member of the Hague convention
must be licensed in the U.S. along with having an accredited or approved by one of the
department of states designated accrediting entities (HCCH). Whereas, in the nonconvention country, they only need to have a licensed adoption service provider.
Countries that are part of the convention require 10 hours of parent education, whereas
in non-convention countries it may only be mandated by the U.S. state of residence
(HCCH). Another important difference is that the Form I-800-A must be filed to suit the
parents eligibility for a child before they are being matched with the child, whereas with
the non-convention countries it can be filed at the same time as form I-600 (HCCH).
Additionally, parents in member countries are able to review the childs medical records
before adoption for up to two weeks, whereas for non-convention countries they might
not get the childs medical records in advance at all (HCCH). Furthermore, countries
that are members submit the childs visa application before the adoption, whereas for
non-members the visa application is submitted after the adoption (HCCH). One last
difference is that the countries that are members preserve the adoption records for up to
75 years whereas the non-member countries may not preserve them at all (HCCH). As
one can see, The Hague Convention places a lot of emphasis on making sure that the
potential adopter is protected along with the child being adopted (HCCH).

In order to ensure that the Hague Convention is enforced, the Intercountry

Adoption Act of 2000 was put into place (Bureau of Consular Affairs). The purposes of
this Act are (1) to provide for implementation by the United States of the Convention; (2)
to protect the rights of, and prevent abuses against, children, birth families, and
adoptive parents involved in adoptions (or prospective adoptions) subject to the
Convention, and to ensure that such adoptions are in the childrens best interests; and
(3) to improve the ability of the Federal Government to assist United States citizens
seeking to adopt children from abroad and residents of other countries party to the
Convention seeking to adopt children from the United States. (Public Law 106279 106th
Congress).

Having many laws to protect children and their parents during the process of
adoption is really important. Each of the laws help to build off of each other and to
reinforce the concepts behind one another. When it comes to adoption countries that
are not participating in The Hague Convention can be looked down upon. Many
adoption agencies will steer their clients towards a member country because it results in
a much safer and controlled process.
When starting the process of international adoption it is required that the
adopting parents first choose an adoption agency to go through. Finding an agency that
is accredited and that the parents feel comfortable with is extremely important. Once the
parents have found an adoption agency, they must submit very detailed information
about themselves in order to see if they are even qualified to adopt a child. The
information that the agency must send to the court includes their religious background,
social history, moral fitness, mental and physical fitness, and criminal background

(Cornell University Law School). After the court receives this information, they are then
able to determine whether or not the person trying to adopt a child is suitable to do so.
After an individual is granted the acceptance of being able to adopt a child they then
need to determine which country they would like to adopt from. Then the country that
the individual chooses is able to look at their application for adoption and has the right
to either refuse or accept their application. As stated earlier, the differences in these
processes are determined by countries that are members or nonmembers of The Hague
Convention.
Countries that are members of the Hague Convention may have a much longer
and extensive process to go through, but the end result is worth it. Although it may take
more time, it results in a safe, non-fraudulent, adoption. Alison Dilworth, who works in
the Bureau of Consular Affairs Office of Childrens Issues, states that, I have seen all
of this first-hand over the past two years. I have visited 14 different countries,
negotiated with dozens of Central Authorities, and participated in seminars, conferences,
and workshops on all aspects of intercountry adoption. Time and time again I have
seen success under the Hague Adoption Convention. (Dilworth). In a particular case
she says, Lian is protected and secure because of the laws and regulations that China
implemented when they became a member of the Hague Adoption Convention. He will
become part of a loving, permanent family, who will know all of the medical issues he
faces and all of his history while in the care of the Chinese system before he joins them
in the United States. His new family will be prepared to support and love him through
the transition to his new home. Most of all, they will know that Lian is truly an orphan,
with no family waiting for him, desperate to know if he is alive and well. (Dilworth). It is

important that the people who represent children and work with the adoption agencies
find the Hague Convention to be an essential part to the adoption process. As for
Alison Dilworth, she is set on the fact that this law helps to regulate adoptions and to
ensure the safety and well-being of the child.
In the end the ability to be able to adopt internationally is amazing. Being able to
take a child from an orphanage or out of a bad and poor situation, and bring them to a
loving family is beneficial in so many ways to not only the child, but also the parents. If it
wasnt for the Hague Convention on the Protection of Children and Co-operation in
Respect of Intercountry Adoption there would be so many more corrupt adoptions taking
place. This law really does focus on the safety of both the child and the parent, and
goes to extreme measure to make sure that the family the child is being placed into is
suitable for the child. Hopefully in the future more countries decide to change their
ways of adoption and join the Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption.

Works Cited
"Adoption." LII / Legal Information Institute. Cornell University Law School, n.d. Web. 24
Nov. 2014.
Cherot, Natalie. "International Adoptions Struggle for Hollywood Endings - The Science
of Society." Pacific Standard. Pacific Standard: The Science of Society, 3 Jan.
2008. Web. 24 Nov. 2014.
Convention on Protection of Children and Co-operation in Respect of Intercountry
Adoption." HCCH. The World Organization for Cross-border Co-operation in Civil
and Commercial Matters, 2014. Web.

23 Nov. 2014.

"Convention on the Rights of the Child." Convention on the Rights of the Child. United
Nations Human Rights, 2014. Web. 24 Nov. 2014.
Dilworth, Alison. "The Hague Adoption Convention: In the Best Interestes of the Child."
Web log post. DIPNOTE. U.S. Department of State Official Blog, 2 Aug. 2012.
Web. 24 Nov. 2014.
Graff, E.J. "International Adoption or Child Trafficking?" The American Prospect.
University Press of Kansas, 6 Jan. 2012. Web. 24 Nov. 2014.
General Assembly 95th Plenary Meeting, United Nations Article 1-Article 24 (United
Nations 1986). Print.
"Hague Convention." Encyclopedia Britannica Online. Encyclopedia Britannica, 2014.
Web. 24 Nov. 2014.

Hollingsworth, Leslie. "International Adoption among Families in the United States:

Considerations of Social Justice." Social Work. N.p., 20 June 2003. Web. 24
Nov. 2014.
"Non-Hague Convention Adoption." Adoption in Immigration. Zhang and Associates,
P.C. US Immagration Attorneys and Counselors, 2009. Web. 24 Nov. 2014
Pierce, William. "Accreditation of Those Who Arrange Adoptions under The Hague
Convention on Intercountry Adoption as a Means of Protecting, through Private
International Law, the Rights of Children." Journal of Contemporary Health Law &
Policy (1996): n. pag. LexisNexis Academic. Web. 24 Nov. 2014.
Public Law 106279 106th Congress (n.d.): n. pag. Public Law 106-279 106th
Congress. Authenticated U.S. Government Information, 6 Oct. 2000. Web. 24
Nov. 2014.
Selinske, J., D. Naughton, K. Flanagan, P. Fry, and A. Pickles. "Ensuring the Best
Interest of the Child in Intercountry Adoption Practice: Case Studies from the
United Kingdom and the United States." Child Welfare League of America (2002):
n. pag. Web. 24 Nov. 2014.
Smolin, David M. "Child Laundering: How the Intercontry Adoption System Legitimizes
and Incentivizes the Practices of Buying, Trafficking, Kidnappying, and Stealing
Children." Child Laundering: How the Intercountry Adoption System Legitimizes
and Incentivizes the Practices of Buying, Trafficking, Kidnapping, and Stealing
Children (2005): n. pag. HumanTrafficking.org. Web. 24 Nov. 2014.

"What Is Intercountry Adoption." Travel.state.gov. Bureau of Consular Affairs - U.S.

Department of State, 4 June 2014. Web. 24 Nov. 2014.