The devastating tsunami that struck South Asia on December 26 has left an untold number of orphans in its wake. Since then, governmental and charitable organizations around the world have been flooded with phone calls and emails asking how these children can be adopted. The simple answer is that adopting the tsunami's orphans is near impossible--and that situation is unlikely to change anytime soon.

This may seem like a scandalous conclusion--and a harsh counterpoint to all the humanitarian aid that has flowed to the region--but it is understandable, if no less tragic, given the complex and multifaceted nature of the issue. Put simply, it is the unfortunate result of international legal standards that govern adoption policies in the "host" countries that welcome adopted children and the "home" countries that supply them.

The U.S. Department of State, which is responsible for articulating U.S. international adoption policy, has flatly refused permission to Americans who wish to adopt the tsunami orphans. Other industrial states have adopted a similarly strict position, largely because they seek to uphold the multilateral agreement that governs international adoptions, the so-called "Hague Convention."

Under the treaty, host and home governments must determine together which children can legally be adopted through an in-depth, case-by-case examination of the circumstances under which the children have become available for adoption. The point is to ensure that children have not been put up for adoption for monetary gain and that their parents gave them up freely, of their own accord.

The tsunami presents host countries such as the United States with several problems that complicate the adoption of South Asian children. Many parents are still missing and have not yet been issued death certificates. Even when parents have been proven dead, children have often been accepted into the homes of their relatives, sometimes under physical and economic conditions that many American or European parents would probably consider grossly inadequate. And in the weeks following the tsunami, international media reported that at least some orphans had been sold for adoption by profiteers, making them unfit for adoption under the Hague Convention.

The adoption of tsunami children is also stunted by practices in their home countries. Even assuming that, in the weeks ahead, some children are identified as being legally available for adoption, local custom in many South Asian countries makes it unlikely that the region will become an important new source for parents seeking a child. Most of the parental deaths occurred in Indonesia, a predominantly Muslim nation, and Muslim law does not easily permit international adoption. For rationales largely to do with inheritance, Muslim law requires that, whenever possible, orphaned children be taken in by close relatives. Muslims, moreover, generally do not allow non-Muslims to adopt their children.

Sadly, then, there will be no quick respite for the tsunami's youngest victims. Many of them will remain in orphanages for years despite the willingness of families in industrial countries to provide them with a loving home.

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  • Ethan B. Kapstein is Paul Dubrule Professor of Sustainable Development at INSEAD in Paris and a Trade and Development Fellow of the German Marshall Fund of the United States.
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