International adoption as a last resort

Legal controls have seen the number of children taken into care fall drastically

War-orphaned children in Bunia, in the northeastern Congo. International adoptions fell by half across the world between 2004 and 2011.
War-orphaned children in Bunia, in the northeastern Congo. International adoptions fell by half across the world between 2004 and 2011.F.O. (REUTERS)

A child's welfare must always prevail over all other considerations. This is the general principle that guides international rules on minors, including adoptions.

The problem is that deciding what's best for a child is an exercise that falls into that blurry area between what's good and what's possible; what's most desirable and what's least bad.

Most experts feel that the reasons why international adoptions fell by half across the world between 2004 and 2011 (they went from 45,299 to 23,500, according to Newcastle University's Peter Selman, an authority on the topic) are growing control over adoption procedures and fewer abandoned children available for adoption.

At first sight, this looks like good news. But some voices warn against the trend, such as Harvard University professor Elizabeth Bartholet, who considers that these good intentions can end up punishing thousands of minors who are forced to spend more time in orphanages or who have no chance for adoption.

Adoption is under siege, with many countries imposing new restrictions"

In Spain, one of the receiving countries with the highest rate of adoptions abroad, the figure has fallen from 5,500 to 2,560 since 2004. China and Russia, the main source nations, have gotten tougher on adoption conditions for ethical and legal reasons, but also in part out of a sense of hurt pride. In addition there are isolated cases of countries that have outlawed adoption altogether for religious reasons. Morocco and Mali did so in the last few months.

"International adoption is under siege, with the number of children placed dropping in each of the last few years, and many countries imposing severe new restrictions. Those who are on the attack use arguments based on human rights, saying that such adoption denies heritage rights and often involves abusive practices. [...] But a child's most basic human right is the chance to grow up in families that will often be found only through international adoption. These rights should trump any conflicting claims of state sovereignty." So wrote Bartholet, who is also faculty director of the Child Advocacy Program at Harvard Law School, in a 2009 article.

Bartholet complains, among other things, about the principle of subsidiarity contemplated in the 1993 Hague Convention on the Protection of Children and Cooperation in Respect to Intercountry Adoption, which states that if a child can be adopted in his or her own country, he or she cannot be made available for international adoption.

The greater controls make for longer waiting times for prospective parents and longer periods spent inside orphanages for the children. The idea of subsidiarity changes the profile of adoptable children toward older kids with physical or mental disabilities, explains Adolfo García, general coordinator of the Spanish umbrella group Coordinator of Associations in Defense of Adoption and Fostering (Cora).

García admits that international laws "demand infrastructure that many countries simply cannot have, or requirements such as specific medical assistance," which are also very hard to fulfill. And yet, despite all the inconvenience, García adds that "in practice, it is much better to have [all these protection measures] than not to have them."

Some good intentions can punish minors, who spend more time in orphanages

As for the principle of subsidiarity, he fully agrees. "International adoption should be the last resource, because it means renouncing the most valuable asset a country has."

The best example of this global trend is China, the largest source country in the world: nearly 80,000 Chinese children were adopted between 2003 and 2011. But since 2005, intercountry adoption figures have dropped from 13,000 to 4,000. There are several explanations for this. Continuing economic progress and the introduction of government policies have reduced the number of adoptable children; Chinese families are also adopting more, and there are fewer unwanted babies. Chinese authorities have cracked down on requirements for foreign families, such as adoptive parents being no older than 50, not being homosexual, and not being single parents.

But while Beijing has made conditions tougher for foreigners wishing to adopt healthy babies, it has relaxed requirements for adopting children with disabilities or "special needs." In this case, waiting times are reduced to one or two years. Also, 90 percent of all babies and children available for adoption are girls, because of the single-child policy and Chinese society's preference for boys.

From the mid-1980s to 2004 there was a huge boom in adoptions from poor countries by couples from wealthy countries, and there were some unwanted results.

If real reform is not applied, intercountry adoption will end up being abolished"

"There was a terrible and unquestionable phenomenon: the pressure of demand created a growing supply," explains Jesús Palacios, a professor of evolutionary psychology at Seville University." If someone is willing to find a baby at any price, there will always be someone ready to satisfy that demand and take advantage of it. Thanks to the conditions established in the Hague Convention, and the good judgment of most families and authorities involved, almost all adoptions were conducted properly. But all possible measures and requisites must be established to ensure that the exceptions to this rule are as few as possible, and hopefully nonexistent."

"Certain receiving countries put pressure on certain source countries in order to be able to adopt children," says Laura Martínez-Mora, legal advisor for the Hague Conference on International Private Law. "At the same time, some countries of origin ask receiving countries to support or organize development aid programs. This might be done with the best of intentions (such as helping families and children who can never be adopted), but in practice, sometimes if this aid is not offered, then adoption is not possible."

This expert says that a clear separation must be established between international adoption and this type of financial contribution.

So far, 89 countries have signed the Hague Convention, including Spain in 1995.

The Newcastle specialist Peter Selman wrote in a recent article about the possibility that "if real reform is not applied, intercountry adoption will end up being abolished - written off like a neocolonial mistake."

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