This is a question that is on the minds of a growing number of intercountry adoptees around the world! Especially since the publication of the UNs Joint Statement on Illegal Intercountry Adoption.
Last year, for the purposes of our advocacy, I worked with Prof David Smolin to construct an easy to read document to help our adoptee community better understand and think critically about whether our legally completed intercountry adoptions via paperwork and process constitutes what is understood to be an illegal or an illicit adoption.
What is an Illegal or Illicit Intercountry Adoption?
Special Rapporteur on the Sale of Children in her speech to the United Nations in March 2017, Ms Maud de Boer-Buquicchio stated:
“All adoptions which result from the commission of crimes such as the abduction, sale and trafficking of children, and from illicit practices such as lack of proper informed consent by biological parents, improper financial gain by intermediaries and related corruption, are illegal, and must be prohibited, criminalised and sanctioned as such by all Member States.”
The difficulty is that rarely do the member states follow what Maud recommends i.e, prohibit or criminalise these practices. Countries around the world have agreed and devised trafficking legislation but it does not include intercountry adoption as part of it’s definition because it only includes situations for the purposes of sex trafficking or slavery, which intercountry adoptions rarely fit within.
As adoptees, it can often be difficult to ‘prove’ or provide hard evidence that these illicit or illegal practices occurred. People, especially those who facilitated our adoptions, will claim everything was perfectly legal, that a legal process was followed — but is the paperwork true and correct? Or has it been largely falsified to make it appear that our adoptions are legal? For many, we discover the tragic truth at reunion with biological families. We come to understand that what was in the “legal paperwork” was in fact fictionalised to appear to be a legitimate adoption. If we don’t find our families because the paperwork is inaccurate and misleading, we can have suspicions and it can take time, sometimes years, to piece together some of the irregularities as we delve deeper into our adoption history, how things were facilitated, and by whom.
Below are some common situations and/or violations that you might come to understand in how you came to be adopted. We outline the complex issues of what constitutes an illegal or illicit intercountry adoption. These definitions and terms are to be used to guide the community to think through some of the adoption practices that come to light as we delve deeper into how intercountry adoptions came to be facilitated.
An illegal adoption occurs when:
- A child is obtained by force or abduction, such as when the child is stolen out of a maternity hospital, the child’s neighbourhood, or home, etc., with the child then officially or unofficially placed with another family.
- Relinquishment is induced and the physical or legal transfer, or consent to adoption is achieved by the promise or payment of remuneration (money or another valuable consideration), with the child then officially or unofficially placed with another family.
- Children are obtained from the original family through fraud or misrepresentation, whether explicit or implied; typically, this involves a representation that the child is being given some kind of opportunity, such as education, temporary care, etc., which does not involve the permanent legal severance of the parent-child relationship.
- The subsequent sale or transfer of a child illegally obtained (as described above) is for payment, as when a child is sold by intermediaries to an orphanage or child-placing agency.
- Payments are made by adoptive parents for the purpose of inducing original family members to transfer a child physically or legally, relinquish a child, or consent to adoption; adoptions may still be illegal without this element, as in most illegal adoptions the adoptive parents are unaware of the illegal purposes to which the “adoption fees” they pay are used.
- An adoption where consents were obtained from the original family without counselling which accurately informs the original family as to the effects of such consent, including whether an adoption would terminate the legal relationship between the child and the child’s original family.
- An adoption where government officials were paid bribes or improper payments for personal or governmental use in order to induce them to approve adoptions or steps to adoption or international travel without regard to the best interests of the child or the legality of the adoption.
An iIllicit adoption occurs when:
- The original family were not offered any financial assistance to keep them together but were offered only the option of adoption, in instances where poverty was a precipitating motivation in the placement of the child.
- Payments to intermediaries, such as agencies, orphanages, attorneys, judges, social workers, or others arranging the adoption, are in excess of normal costs to process an adoption, in light of standards for comparable work within the country where the work is performed. For example, payments for intermediaries in the country of origin for intercountry adoption-related services should be similar to payments for similar work for domestic adoption.
- Where placement options within the child’s country of origin where not given due consideration, and/or were unduly discounted due to demand pressures from receiving countries for children or financial inducements toward intercountry adoption.
- Where the country of origin severely restricted domestic adoption, including standards for adoptive parents, while being more permissive toward intercountry adoption; an example would be adoptions from China during periods when the government’s population control policies were applied to make it difficult to adopt domestically in China.
- Adoptions conducted during or immediately after natural disasters (earthquakes, floods), or other circumstances (war, COVID) where large numbers of children are temporarily separated from their family, and it is not possible to provide safeguards for the rights of the child or determine the location or situation of the original parents and family members.
- Adoptions of lost children where reasonable efforts are not made to locate the original family members.
These definitions are being used based on a number of international conventions, namely, The 2000 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography (“OP-CRC”); the Convention on the Rights of the Child (CRC); The 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption; the 팔레르모 프로토콜.
As Prof David Smolin concludes in one of his excellent 조항, “the very system of intercountry adoption has no effective legal means to prohibit and prevent the sale and commodification of children” and this is why so many of our intercountry adoptions fit within these categories to be considered illegal and/or illicit.
Until governments and authorities create the legal means to prosecute and hold entities accountable for these illicit and illegal practices and adoptions, we remain victims with nowhere to turn but to remain angry for what has been done to us in the guise of save and rescue! Is adoption truly in our best interests when no legal safeguards are put in place to prosecute those who conduct, participate, and mediate illegal and illicit adoptions?
An awakening is happening all over the world from the many who have been illegally and illicitly adopted via legal intercountry adoption systems and processes. One can only conclude as many around the world are understanding, is that the current process of intercountry adoption is a legalised form of child trafficking, i.e., an illegal and illicit adoption.
엄청난 덕분에 Prof David Smolin for helping create this easy to read/understand document!