Courtesy Reuters

The recent instances of international adoptions gone awry -- the suspected abduction of Haitian children after the January earthquake, followed by the case of a Russian boy sent home by his adoptive mother in Tennessee -- have once again focused the public's attention on the lopsided relationship between adults in the West and children in the developing world (and in emerging markets). In both of the above examples, questions of adult morality -- and, indeed, sanity -- became mixed up with the dictates, obligations, and vagaries of international law, with children caught in the confusion. This need not be the case: as I first argued in Foreign Affairs in 2003, the world's children deserve a stronger safety net of global rules on adoptions.  

To be sure, such extreme cases are hardly representative of the international adoption process. In 2009, for example, parents in the United States -- who adopt the largest number of foreign children -- took in more than 12,500 children from abroad. This number is down considerably from almost 23,000 children, partly because of a backlash against international adoptions in some countries, as well as "alerts" issued by the United States for adoptions from several nations, including Guatemala and Nepal. Still, outlying cases do happen, and they can reveal fundamental problems.

In both the Haitian and the Russian case, it is important to note that neither country has ratified the Hague Adoption Convention (HAC), the international agreement that aims to protect the rights of the child in cases of cross-border adoption. The treaty requires sending countries to determine that a child is "adoptable," meaning that he or she is considered orphaned under national law, and that no payment has been given in return for a child. It also requires all intermediaries in the process -- most often an orphanage or adoption agency -- to disclose pertinent medical and family information to prospective parents. Finally, national bodies must oversee and provide accreditation of adoption agencies.

Although all the facts are not yet clear in the recent Haitian and Russian cases, it does seem certain that adherence to the HAC process would have avoided some problems. In Haiti, it appears that the children who were claimed for adoption were not, in fact, legally adoptable. Even if their parents had been killed by the earthquake, they may have had other relatives who were looking to act as their parents. In Russia, meanwhile, full medical disclosure (if indeed such information was lacking) might have prevented the tragedy.

It is of interest to note that Russia signed the treaty in 2000 but has yet to take the steps necessary to make it law; Haiti is not a signatory. Given the complicated set of state and federal laws governing adoption processes, the United States took 14 years -- from 1994 to 2008 -- to move from signature to ratification. As a result of this uneven and delayed application of international norms, the rules governing international adoption are weak at best, leaving children at risk of adoption fraud.

Enforcing the HAC has, perhaps unsurprisingly, proved to be problematic. Participants in the adoption process -- including agencies, orphanages, attorneys, judges, and government officials -- have a range of potential motives in either facilitating or impeding particular adoptions. It would be naïve to deny the role that money can play in such a transaction. One analysis published earlier this year in Global Policy estimates that Chinese orphanages received $23.7 million in fees from adoptive parents in 2005, which averages to around $3,000 per child.

Nonetheless, states have made strong and public efforts to comply with the HAC in order to preserve international credibility on this highly flammable issue. The United States, for example, regularly prevents U.S. citizens from adopting children from countries whose procedures are deemed corrupt. The State Department publishes alerts when it has strong concerns about adoption processes. Just two weeks ago, for example, it cautioned that it "strongly discourages prospective adoptive parents from choosing adoption in Nepal because of grave concerns about the reliability of Nepal's adoption system and the accuracy of the information in children's official files."

Yet states could and should be doing much more on behalf of the HAC. To date, the United States has not provided foreign aid to help countries in the developing world meet their Hague Convention obligations. Since U.S. citizens adopt a large share of the world's adoptable children, and those prospective parents want clean and transparent procedures, the United States should allocate some foreign assistance to educating national governments and judiciaries on their responsibilities under the HAC and relevant U.S. legislation. Other countries whose citizens are active in international adoptions, such as France, should make similar efforts. The United States should also lead a multilateral initiative to provide resources for inspecting and improving conditions in orphanages. Much as the efforts of global activists forced many corporations to open up their factories in the developing world to outside inspectors, a similar movement should work for transparency on behalf of orphaned children.

Some have argued that the emphasis in adoption policy should not be on enforcing the HAC but rather ensuring that the adoption process serves what has been called "the best interests of the child." This view has in turn produced two disparate arguments: one, that children are better off in their own national and cultural environment, and two, that a loving home is nearly always preferable to an orphanage. After all, would it not be better for orphaned children to be raised by families in Europe and the United States than to remain in institutions in the developing world -- even if this process contains hints of so-called baby buying? And is commercial surrogacy all that different from baby buying in international adoptions? What, some might argue, is the moral difference between these two approaches to having a child?

Yet, surely, there must be an important legal distinction between eggs carried by a surrogate and orphaned children who have already been born. Ironically, this so-called human rights argument risks transforming children into mere commodities or utilitarian goods. This is the real lesson of the recent controversies over the Haitian children and the Russian adoptee. In both cases, the children were treated as goods that could be freely traded -- or returned -- across borders. The world's governments must take strong preventive action when adults take part in supplying and fueling the global trade in children. As a first priority, this will mean strengthening the Hague Convention and devoting sufficient resources to making it an effective instrument on behalf of the world's most vulnerable children.

  • ETHAN B. KAPSTEIN is Tom Slick Professor of International Affairs and Dennis O’Connor Regent’s Professor of Business at the University of Texas at Austin.
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