Ethan B Kapstein. Foreign Affairs. Volume 82, Issue 6. November/December 2003.
A Global Business
Children are our most precious resource—and, like most precious resources, they are traded across borders. As more parents have adopted babies from abroad over the past decade, the international market for children has boomed: in 2001, some 34,000 children—mainly from Asia and central and eastern Europe—found new homes in western Europe and North America.
With 9.5 million children now languishing in developing-world orphanages, there are many more opportunities to create loving families across borders. Yet, because the demand for infants from poor countries is rising among adults who live in wealthy ones, corruption has distorted the baby trade. Unscrupulous go-betweens buy or abduct infants from needy biological parents and sell them to eager adoptive families.
Facilitating the placement of orphaned children while attacking the corruption that accompanies it will be a fine balancing act. A free market for babies is out of the question: while infants can fetch a high price, they are not, and should never be treated as, commodities. But banning adoptions from countries that tolerate corrupt adoption rings is no solution either. Moratoriums have been imposed on adoptions from Cambodia and Romania, for example, but they only succeeded in denying orphans there a chance to find families while shifting the demand to new suppliers such as Russia and China.
A more promising course would be to reinforce the multilateral legal regime that regulates global adoption. The Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption, now in force in 54 countries, requires states to facilitate international adoptions while stamping out exploitation. Strengthening this regime is essential to the well-being of orphans and to the parents who would receive them. But doing so will require more diplomatic pressure, more foreign aid, and more political courage in confronting traffickers than the international community has yet mustered.
Historically, international adoption has sprouted in the aftermath of wars. After World War II, American families adopted European orphans, chiefly from Germany, Italy, and Greece; after the war in Korea, they took in children from that devastated peninsula. At the end of the Vietnam conflict in 1975, some 3,000 children were adopted by foreign parents as part of Operation Babylift. So many infants left Vietnam that in 1983, Hanoi declared a moratorium on further adoptions, which has since been lifted.
More recently, changes in economic and social policies have determined the sources of supply. With the end of the Cold War, market-driven economics were ushered into central and eastern Europe, causing the collapse of communist-era welfare systems and a surge in the number of abandoned children. Romania, for example, had allowed only 30 intercountry adoptions in 1989; in the year after the fall of Nicolae Ceausescu, it let more than 10,000 children leave the country.
Likewise, although no Russian child was adopted abroad prior to 1990, Russia is now the world’s largest supplier of orphans to parents in the United States, satisfying about 40 percent of total demand. China, which also frowned on giving up its orphans for international adoption in the late 1980s, now ranks as a close second. Its one-child policy, which strongly favors boys, has left many Chinese girls in need of foreign parents. In fact, it is estimated that two-thirds of all children put up for adoption are female.
At the same time, the demand for foreign-born babies has soared in the West, thanks largely to changing social norms, such as increasingly relaxed notions of what constitutes a family. As couples wait longer to marry and, as a result, have fewer children of their own, many more seek to create families through adoption. So do an increasing number of single adults and gay couples.
Prospective parents today have a more difficult time finding babies at home, because relatively fewer children born in Western countries are now put up for adoption. In the United States, for example, adoptions of U.S.-born children satisfy between one-half and two-thirds of the total demand for nonbiological children. (Precise figures are difficult to compile because the U.S. government—like many others—does not keep very reliable statistics.)
The combined effect of these social and economic changes has been a boom in the international adoption trade. Between 1988 and 2001, the number of cross-border adoptions nearly doubled, jumping from about 19,000 to over 34,000. By 2001, Americans alone accounted for 19,237 international adoptions—over half of the world’s total. Other industrial states have recorded even more spectacular increases: in Canada, the number climbed from 232 to 1,874 between 1988 and 2001; in Spain, it skyrocketed from a mere 93 to 3,428 in the same period.
The baby trade is likely to continue to grow, partly because it is no longer simply a response to wars and humanitarian crises. For better or worse, it now behaves much like a commodities market, with demand informing supply; and neither demand nor supply is likely to subside. As the HIV/AIDS pandemic grows, many more babies will become available for adoption around the world. Some 13 million children already have lost one or both parents to AIDS. According to UNICEF, that number is projected to reach 25 million by 2010. Most of these children live in sub-Saharan African countries, which have not traditionally been an important source for international adoptions because of cultural and religious strictures on that practice. But this reluctance could wane as the AIDS crisis mounts, if extended families can no longer function as caregivers. Some African countries, such as Ethiopia, are already becoming more open to international adoption. As AIDS spreads throughout eastern Europe and Asia, the number of orphans will surely grow in these regions also—as will the challenge of finding new homes for them.
International adoptions were largely unregulated until the 1980s and 1990s, when several appalling trafficking stories made headlines in international media, prompting political action. The most widespread and alarming problem has been the illicit purchase and sale of babies. From Albania to India, families and orphanages have swapped children for money, television sets, cameras, or watches. A recent article in The New York Times revealed that a family in India sold their month-old daughter for $20 to a “woman from a nearby village,” who then sold the baby to an orphanage, which in turn arranged for its adoption abroad.
In the worst cases, infants are sold after having been abducted. Some of the most egregious examples of that practice have emerged from Central America. Senior officials in Honduras allegedly helped kidnap children from poor families and sell them to foreigners in the early 1990s. A 2000 report by the United Nations found that in Guatemala, a leading supplier of infants worldwide, “in the majority of cases, international adoption involve[s] a variety of criminal offences, including the buying and selling of children, the falsifying of documents, the kidnapping of children, and the housing of (these) babies awaiting private adoption.”
Stopping this traffic will be no small feat. The basic economic incentives that rule markets have a powerful hold, even when the trade is for humans. Infants can fetch anywhere between $5,000 and $25,000. Even if the biological parents see only a small fraction of that amount, in impoverished countries that may be a hefty sum. And parents in receiving countries buy babies in spite of corruption, in the hope of giving them a better life, without realizing that they may be encouraging more trafficking.
It is also difficult at times to distinguish child trafficking from legitimate adoption; the difference may be clear conceptually, but it is not always clear in reality. An American agency that helped bring 600 Russian children to the United States in the 1990s admitted giving orphanages clothing and medical supplies in order to establish preferential relationships with them. But the agency claimed that because it did not pay the orphanages, the Russians had not been “selling the children.” Buying infants is illegal; covering the cost of raising them until they are adopted is not. The distinction between the two can be so obscure, however, that unless parents actually confess to selling their children, adoption and immigration authorities may struggle to prove it.
The discovery of corrupt practices has prompted some receiving states to ban adoptions from suppliers with sketchy records and some suppliers to suspend the emigration of orphans while they review their own practices. These moratoriums only displace the problem, however: sanctions against some countries simply shift the market to new suppliers. The number of Romanians available for international adoption seesawed throughout the 1990s and 2000s, as moratoriums were imposed and repealed and imposed again while the Romanian government wrestled with charges of corruption. In 2001, Romania placed 782 children in the United States; the following year, with another moratorium in place, the number dropped to 168. During the same period, adoptions in the United States of children from Russia increased by about 700, and adoptions of children from China increased by about 350. The shift in suppliers shows that unilateral or bilateral measures cannot be effective means of regulating a trade that, by definition, affects thousands of children and scores of countries. A single adoption may involve several jurisdictions: a child born in Malaysia may be adopted in Singapore by parents living in Ireland who seek to bring the child home through the United Kingdom.
Recognizing these shortcomings, in the late 1980s, the un launched multilateral discussions to develop a normative framework for the baby trade. (Earlier attempts to regulate the baby trade had been made at the regional level, in the Americas, western Europe, and the Nordic countries, but given the international nature of this commerce, they had proved ineffective.) Negotiations culminated in the adoption of the Convention on the Rights of the Child (CRC) in 1989. The CRC distinguishes child trafficking from legitimate adoptions, stating that the placement of children should not result “in improper financial gain for those involved in it.” The convention also states that “intercountry adoption may be considered as an alternative means of a child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin.”
The CRC was an important but tentative first step toward regulating international adoption. The convention does not define “improper financial gain,” for example, offering no guidelines for telling bribes apart from acceptable child support. Also, the convention’s preference for in-country solutions over intercountry adoption places the onus on home countries to clean up their orphanage and adoption systems. That, however, has proved beyond the capabilities of most states, particularly those in the developing world. The temptations of profitable cross-border transactions give these countries little incentive to encourage adoptions at home, especially when they often lack the resources to fund such efforts in the first place.
The CRC itself does not regulate international adoption. But it directs the 191 states that are party to it to conclude “multilateral arrangements or agreements” to establish a transparent process for adopting children across national borders, including by passing necessary legislation at home. That challenge was taken up by the Hague Conference on Private International Law, a little-known intergovernmental organization created in 1893 and tasked with unifying the rules of private international law. In 1993, the conference presented to its member countries a draft convention on international adoption, which they promptly and unanimously endorsed.
Now in force in 54 countries and signed, but awaiting ratification, by another nine, the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption is the baby trade’s legal backbone. Heeding the CRC’s call, the Hague Convention seeks “to take measures to ensure that intercountry adoptions are made in the best interests of the child and with respect for his or her fundamental rights, and to prevent the abduction, the sale of, or traffic in children.”
Whereas the CRC states that children should remain in their home country so long as foster care can be found there, under the Hague Convention intercountry adoption is acceptable if a “suitable family” cannot be found in a child’s home state. In other words, the two documents are informed by opposite presumptions: the Hague Convention snubs the CRC’s preference for domestic solutions, holding instead that the “best interests of the child” may be better served by a foreign adoptive family than by a domestic orphanage.
The Hague Convention also aims to establish a “system of cooperation” among states to prevent the traffic in children. It recognizes that child trafficking, like terrorism and the drug trade, can only be curbed through multilateral cooperation. (The international police authority Interpol was an active participant in the Hague Convention’s deliberations.)
Finally, the Hague Convention requires that states amend their national adoption laws to conform to the convention’s principles and guidelines. The terms of the convention require both supplying and receiving countries to implement new legislation: it asks the first to clean up corrupt adoption networks, and the second to crack down on the receipt of trafficked children. The children’s country of origin must also certify that they are in fact legally adoptable.
This feature, which could be called “home country control,” was a necessary compromise. It was the product of negotiations among the convention’s participants, who came from different backgrounds and held radically different views concerning adoption. Islam, for example, strictly prohibits adoption, although it does permit a type of foster-parenting arrangement. In India, only Hindus are allowed to adopt Hindu children, as several American families painfully discovered recently when Indian courts barred them from adopting local children. The Hague Convention reflects the need to let states legislate these issues internally, consistent with their values. That flexibility was all the more important given that adoption legislation is relatively undeveloped in most countries and jurists are struggling to define the legal relationship between adopted children and their biological parents, their adoptive parents, and their siblings.
A key feature of the Hague Convention, therefore, is its requirement that each state designate a “central authority” to oversee the adoption process in its own territory, including the implementation of the convention’s directives through new domestic legislation and the coordination of adoption procedures with other states. The difficulty of this task cannot be underestimated, especially in federal countries such as the United States, where adoption is the prerogative of individual states rather than the national government. Three years after the Intercountry Adoption Act of 2000 was passed by Congress and signed into law by President Bill Clinton, regulations to implement the Hague Convention in the United States are still forthcoming. The delay has generated tension between Congress and the State Department, the United States’ designated central authority.
Room for Growth
The Hague Convention is rightly seen as a major breakthrough: it holds that the best interests of children should guide any effort to regulate adoptions; it favors international adoptions over resort to domestic orphanages; and it streamlines the adoption process by requiring that supplying states certify children who may be adopted. Therefore, extending and enforcing the convention should become a priority.
As the country that adopts most foreign children, the United States should hurry to implement it. Washington should also exert diplomatic pressure on major supplying states—such as Cambodia, Haiti, Kazakhstan, South Korea, Ukraine, and Vietnam—that have not yet become parties to the convention. The European Union also has a key role to play in this respect. As active participants in the baby trade seek membership or free trade agreements with the EU, they will become increasingly susceptible to Brussels’ moral suasion. The EU should tie any ongoing economic negotiations with countries involved in the baby trade to improvements in their adoption practices.
Despite its contributions, however, the Hague Convention regime does not, and cannot, tackle systemic corruption, which is likely to worsen as the trade in foreign-born children increases. One of the convention’s limitations is precisely the discretion it leaves states to regulate their own adoption networks; “home country control” does little to curb the corruption that is endemic in some places. If poorly paid officials will take payoffs to fix parking tickets or facilitate foreign direct investment, how can it be assumed that they will not take cuts on child trafficking?
Even in the cleanest of supplier states, there is little money to spare for tracking abuses, funding orphanages, or supporting educational and health care services. It is essential, therefore, that aid be granted to states that need but cannot afford to reinforce their child welfare systems. That goes for states that have not signed the Hague Convention too—perhaps even more so. As U.S. Congressman Henry Hyde, a leading advocate for intercountry adoption, has pointed out, “some of the foreign countries whose systems are the most problematic are unlikely to ratify the Convention anytime soon.” Very little foreign aid is currently earmarked for adoption and child welfare issues.
More modest policies can also help, if only by simplifying existing adoption procedures and promoting goodwill. In 2002, the U.S. government launched a promising initiative, “Adjudicate Orphan Status First,” to screen babies before prospective parents initiate lengthy and costly procedures to adopt them. Under this program, the Bureau of Citizenship and Immigration Services conducts nonbinding reviews of orphans in Poland, Sierra Leone, Haiti, Honduras, and the Philippines to determine whether they are in fact eligible for adoption and immigration to the United States. The program is designed to spare many families the pain of discovering that they cannot adopt the baby they cherish because of health problems, trafficking, or other irregularities. If the program proves to facilitate intercountry adoption by increasing transparency and predictability, it should be extended to other supplier states and appropriately funded by Congress.
Measures short of adoption that provide comfort to orphans should also be encouraged. Foster parenting, for example, allows a family to support financially an orphaned child from afar, often in the form of a monthly stipend. Unfortunately, potential foster parents are often reluctant to contribute to the upkeep of children who live in countries where the government, intermediary agencies, or orphanages are suspected of being mismanaged or unaccountable. Western governments, international organizations such as UNICEF, and nongovernmental organizations could help dispel such concerns by providing better information about, and perhaps even certifying, institutions that would receive assistance. Governments should also subsidize the generosity of foster parents by offering them tax breaks, as many do for charitable contributions.
Turning the baby trade into an open market would do nothing to stamp out corruption and abuses; it may even encourage some women to breed children simply with the goal of selling them. So the course paved by the Hague Convention—a multilateral, forward-looking strategy—is the one to follow and to support with commonsense policies, diplomatic pressures, and, of course, adequate funding.
To be sure, our failure to build an effective international adoption regime is unlikely to dominate the foreign policy agenda these days; it threatens neither national security nor economic welfare. But with worldwide adoptions on the rise, it is a pressing problem nonetheless. Fixing it would help bring together the thousands of children and parents whose only desire is to build a family. In this day and age, that is no small achievement.