21 December 1999
International adoption: respecting children’s rights
Committee on Migration, Refugees and Demography
Rapporteur: Mrs Ruth-Gaby Vermot-Mangold, Switzerland, Socialist Group
1. Summary of the situation
1. At a time when the United Nations is preparing to celebrate the tenth anniversary of the Convention on the Rights of the Child, there appears to be an urgent need to denounce violations of these rights which have been committed on an unprecedented scale for several years and alert the public and governments to illegal practices which are becoming more and more widespread.
2. The Committee on Migration, Refugees and Demography fully supports the draft recommendation and the conclusions of the report of the Social, Health and Family Affairs Committee.
3. Nevertheless, it would like to dwell on a few specific aspects of the question of international adoption, in particular those connected with the transfer of adopted children to receiving countries and their return to their country of origin.
4. International adoption now obeys market rules. It no longer corresponds to the initial idea of contributing to children’s welfare; rather, it has become a primarily lucrative activity which generates substantial profits. Corruption is also rife among civil servants and judges.
5. Countries have often reacted by announcing moratoriums on adoption in order to investigate abuse or establish an adequate legal framework. But the closing of frontiers in one country often means that demand shifts to other countries.
6. International adoption was unknown in the countries of the former eastern bloc. These countries in transition, in particular Albania, Romania, Bulgaria and Russia, have seen a worrying increase in adoption. Reactions in some of these countries have sometimes been fierce, as in Romania and Georgia.
2. International legal framework
7. As regards children’s rights, the 1986 United Nations Declaration states that international adoption may be considered as an alternative means of providing a child with a family if that child cannot be cared for in the country of origin.
8. The 1989 Convention on the Rights of the Child emphasises that it is the state’s duty to act in the child’s best interests. It recognises a child’s right to an identity at birth (name, nationality and family relationships). Finally, it establishes the principle of subsidiarity.
9. This principle of subsidiarity is made into a rule in the 1993 Hague Convention, which recognises that intercountry adoption may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in his or her state of origin. The main purpose of the Hague Convention is to establish machinery for inter-governmental co-operation in pursuance of the provisions of the United Nations Geneva Declaration on international adoption. Responsibilities and tasks must be shared between states of origin and receiving states. Procedures for international adoption should ultimately be the responsibility of the states involved, which must guarantee that adoption is in the child’s best interests and respects his or her fundamental rights.
10. Violations are often committed under the guise of proclaimed humanitarian acts and justified by a simplistic view that a child receives a better upbringing in a rich country. Trafficking in children often involves criminal networks, intermediaries of all sorts (including intermediaries in receiving countries to find homes for the children) and couples who will do anything to adopt a child.
11. New methods of child trafficking are being employed to circumvent the law in order to meet the growing demand for children for adoption. These methods include exerting pressure on authorities to export more children and make the laws and procedures more flexible; obtaining children for adoption illegally (kidnapping babies and children, encouraging mothers to abandon their new-born babies or agree to give up their unborn babies, telling mothers that their children are dead, exchanging children for material goods, paying women to conceive children for adoption, giving biological parents false information on the consequences of adoption in order to force their consent, giving adoptive parents false information on the state of health of the child to be adopted, and so on), obtaining adoption licences by fraudulent means (forging documents, corrupting civil servants and judges), side-stepping the adoption procedure (false declarations of paternity or forged birth certificates, arranging for children to transit through a third country).
12. A child’s right to an identity includes the right to information concerning his or her origins (the Hague Convention binds states to preserving information on children’s origins and granting access to it). There is a high risk that a child’s identity will be sacrificed when an adoption takes place illegally. Child traffickers try to cover up their tracks by arranging for the children to transit through third countries before offering them for adoption abroad. All the research carried out recently shows that keeping children from learning of their origins has a negative effect on their development. As a result of this research, adoptive parents have begun to be aware of this and they are beginning to establish or maintain links with the children’s biological families (“open adoption”). Adoption registers have been made available to them in some countries.
13. The child’s identity is often imperilled. A case was reported of pregnant women giving birth abroad so that their babies could be exported to another country; when the government of the receiving country put an end to this trafficking, problems arose over the nationality of these babies born to foreign women. Children who have been imported into a country illegally are often forgotten. If they lose their original nationality as a result of the adoption procedure in the country of their birth, they are faced with the precarious situation of statelessness.
14. National identities can also be doubtful in the event of an adoption falling through, which is more likely to happen when the usual precautions have not been taken. The fate of children infected by the Aids virus is often tragic. These children are often presented to their prospective adoptive parents as being healthy. Many of these children have been rejected, or ended up in distant countries, or been sent back to their country of origin.
15. The abduction of children for the purpose of trade in organs is a particularly odious crime. This trade is active in some countries of Eastern Europe, where life of minors is at risk in order to satisfy the needs of a rich clientèle in North America and Western Europe.
16. In allowing such acts to continue, the idea is perpetuated that fundamental decisions concerning the life of a child can be taken in wilful ignorance of the law and, what is more, for financial reasons, which is in total contradiction with the UN Geneva Convention on the Rights of the Child. The existence of a particularly high number of cases of abuse among international adoptions potentially affects all children, who are in danger of being abandoned in the countries in question.
17. When scandals connected with adoptions break out, it often happens that the countries of origin put a total ban on international adoption; such measures affect those children who are in need of this form of aid. When irregularities are brought out into the open, domestic adoptions also bear the consequences.
3. Problems raised by cases of abuse in international adoption
18. Cases of abuse often arise during periods of armed conflict, ecological disasters, political uprisings or economic crises.
19. Sound legislation is essential if such abuse is to be prevented. The absence of legislation in many former communist countries has created a favourable climate for trafficking in children in Albania, Bulgaria, Latvia and Poland. Adoption in the strict sense is not the only area in which legislation is needed. Children who have no legal existence are also vulnerable. Many countries do not have legislation making the registration of births compulsory (only 3% of births are registered in Bangladesh). Legislation is also vitally important in establishing the criteria whereby parents are considered to have abandoned their children. It should allow for a period during which parents may change their minds, and set out the procedure to be followed.
20. The lack or shortage of courts and administrative departments capable of implementing such legislation considerably increases the risks. In some countries, the courts are snowed under. They may not have any judges who are competent in this field. The welfare services may prove to be incapable of carrying out the measures that will enable children to stay in their families, find alternative domestic options or make the appropriate arrangements when adoptions are envisaged.
21. In countries that have no policy of maintaining children in their biological families, the fact that people are prompted to abandon their children or accept foster care is clearly liable to lead to abuse in the field of adoption. Other symptoms of a corrupt adoption system are the inadequate and insufficient attempts to find the parents of abandoned children and the lack of consideration given to possible domestic solutions. Judges may also be too quick to declare that a child has been abandoned.
22. The worst and most frequent problems occur with private adoptions. In order to counter the sale of children, the Committee on the Rights of the Child, a body established under the UN Convention on the Rights of the Child to monitor its application, has requested that national adoptions be centralised and not left in the hands of judges seeking to make a profit.
23. When prospective adoptive parents decide to act unilaterally, the opportunities for taking protective measures are drastically reduced. The fraudulent practice of demanding advance payment for children who do not exist or are unsuitable for adoption is widespread. In many cases, private adoptions take place because of the strict procedures involved in international adoptions. It is very important that these parents should be made aware of the fact that these measures are aimed at protecting the interests and rights of the child, and are not arbitrary obstacles to adoption. They should also remember that, as the Rapporteur of the Social, Health and Family Affairs Committee rightly pointed out, adoption is not to be seen as a solution to a childless couple’s overwhelming desire to have a child, but rather as a means of finding parents for abandoned children or orphans.
24. In emergency situations, the increased vulnerability of children and their families, added to the sensationalist image conveyed by the media and the appearance on the scene of outsiders ready to provide help on their own initiative, makes abuse and bad practice in international adoption even more frequent.
25. International adoption is strongly advised against in emergency situations. The lack of national control and the collapse of judicial and administrative bodies make the whole process of registering births and court decisions an impossible task. Children in emergency situations are not ready for adoption.
26. Once it has been determined that a child is suitable for adoption, the first step must be to see whether the child can be placed in its extended family or, in the case of refugee children, within the community of refugees or in families from the country from which he or she has fled. International adoption should only be envisaged after repatriation or other placement measures have been ruled out.
4. Risk situations
27. The 1994 Hague Conference recommended that all reasonable measures should be taken to find children’s parents or families and reunite them when children had been separated from them, and that children should not be repatriated to be reunited with their families if there was a risk that those children would not receive appropriate care or satisfactory protection in their countries of origin.
28. The events that took place in central and eastern European countries in the 1990s showed the dangers of abuse in the field of international adoption that may arise as a result of radical changes in the social and political climate and the sudden impoverishment of part of the population. Economic recession can also lead to flagrant abuse. This is what happened in Vietnam in 1993. In order to meet the high demand for children and to be able to carry on with the trafficking that had been going on for years, local intermediaries began to pressurise mothers into abandoning their children.
29. International placement in children’s homes has expanded considerably over the past few years and now concerns thousands of children each year. These children may be living in institutions or suffering from health problems, or they may be the victims of armed conflict or other perils. Children from central and eastern European countries are in the front line. Children are generally fostered by families in other countries as a temporary measure for fixed periods. The major risk involved here stems from the fact that children are placed in foster homes by groups of volunteers. This form of placement does not benefit from the same guarantees as placement in national institutions, nor does it receive the attention it deserves from local authorities. Another risk is that international fostering is sometimes used to get round certain legal international adoption procedures: in such cases, the children do not return to their own countries at the end of their stay and the foster families start adoption proceedings in the children’s countries of residence.
30. The new 1996 Hague Convention on the Protection of Children sets out protective measures and special procedures to ensure that international placement in foster families is carried out in the best possible conditions. Article 33 of the convention provides for a consultation procedure in the event of decisions by the authorities of one state to place children in care in another state. Other articles concern procedures for helping to find children who have disappeared and transferring children who are ill or at risk from one State to another.
31. The problem of international adoption can be summarised as follows: on the one hand, thousands of children are currently living in institutions in conditions that give cause for concern. For some of these children, adoption is a solution that can be envisaged because they need a permanent family environment. However, for various reasons, these children are kept in institutions. On the other hand, thousands of couples or individuals in receiving countries consider adoption as a last resort after a long and difficult path that has led them from unsuccessful infertility treatment attempts to rejected applications for domestic adoption or positions at the bottom of long waiting lists.
32. The Committee on Migration, Refugees and Demography agrees with the conclusions of the Social, Health and Family Affairs Committee that the primary purpose of international adoption must be to protect the rights of the adopted children and provide them with a stable family environment, and asks the Council of Europe to take a more active approach to these issues.
33. The Council of Europe’s 1997 European Convention on Nationality should contain a special provision concerning illegally adopted children who are in danger of being made stateless. The Committee on Migration, Refugees and Demography therefore proposes that a third sub-paragraph be added to paragraph 7 of the draft recommendation, reading as follows: “revise the European Convention on Nationality of 6 November 1997 in order to make it easier for foreign children to acquire the nationality of the receiving country in the event of the adoption falling through or the adoption procedure breaking down”.
Reporting committee: Social, Health and Family Affairs Committee (Doc. 8592).
Committee for opinion: Committee on Migration, Refugees and Demography.
Reference to committee: Order N° 543 (1998).
Draft opinion approved by the committee on 17 December 1999.
Secretaries to the committee: Mr Newman, Mrs Nachilo, Mr Adelsbach.