User:Caroprand/sandbox

Outline_ International Adoption

Team Member: Carolina Prandelli, Hanjie Wang, David Gertiser, Damien N. Somé

Note: Dear Professor, We have endeavored to sketch the outline in a very comprehensive manner in the hope you could help us narrow down to the core priorities in line with your expectations from this exercise.

The current Wikipedia entry for the topic of “International adoption” has many inadequacies. It has been evaluated by Wikipedia itself as an article that has multiple issues and therefore needs to be improved. Concerns expressed by Wikipedia include the need of “additional citations for verification” and the fact that the article may not represent a “worldwide view of the subject”. Our task, henceforth, consists essentially of: 1. locating and editing the contentious parts; 2. adding new content in order to improve the overall quality of the article and to make it reflect a global perspective on the question of international adoption. We will do so by grounding our writing into the existing literature on the subject, by taking other Wikipedia contributors’ opinion on the “talk” page, and also by following strictly Wikipedia’s recommendations for a good Wikipedia article.

Concretely, we hope to improve the article with regard to the following aspects:

1-Terminology [edit]

Problem observed:

The current article uses confusedly and interchangeably the terms “transnational or intercountry/ international/ interracial adoption or transracial/ transcultural” adoption.

Solution:

For more clarity we intend to consistently use the term “International adoption” which seems to us more comprehensive. Meanwhile, we will devote 1~2 lines to clarify the difference between these confusing terms.

2- Concept and History of international adoption [New Section]

Problem observed:

The current article simply addresses the term of “international adoption” without any reference to its history, despite the fact that “international adoption” is plentiful in meaning and has evolved historically.

Solution:

To help understand the current situation and problems of today’s international adoption in a historical context, we will create the new section of “Concept and History of International adoption”. Here, we show the history narrative of international adoption, its evolution, and its current situation.

Reference:

UNDP Child Adoption Trend and policies, 2009, available at http://www.un.org/esa/population/publications/adoption2010/child_adoption.pdf

Claire Gore, « L’adoption. Adoptables, adoptés, quelles sont les réalités de l’adoption ? Sa place en lien avec les évolutions de la parentalité ? Son devenir institutionnel ? »,

Armand Colin, Paris, 2007 (p. 55 and p. 77 about the current trends of the international adoption as tool of child protection)

Trevor Buck ,“International Child Law”,New York : Routledge, 2011 ( brief history of international adoption and current trends, p. 243)

Isabelle Lammerant, Marlène Hofstetter , “Adoption: at what cost? For an ethical responsibility of receiving countries in intercountry adoption”, Terre des homes, 2007 (sensitive introduction on the current trends of the phenomenon of international adoption)

Ingeborg Schwenzer, “International Adoption”,Bern: Stämpfli, 2009 (p.99 historical perspective of the phenomenon of adoption (not specifically “international adoption”), from Roman Law, Middle Age, to Modern and Contemporary Ages )

3- International Legal Framework [Editing on current section of “International Law”]

Problem observed:

In the current section of “International Law”, only two conventions are mentioned, the “Hague Adoption Convention” and very briefly the “UN Declaration Relating to the Welfare of Children”. Important literature missing includes the “UN Convention on the Rights of the Child” as well as an attempt to systematically present laws/ regulations on a regional/ national level. There are only scattered and very general references to specific countries’ laws and policies with regard to international adoption.

In addition, the existing section on the Hague Adoption Convention seems to contain “original research” showing a specific point of view: the implementation of the Convention results in hindering adoptions instead of implementing them. However the argument seems underdeveloped (only the case of one country is presented, namely Guatemala). The section also lacks proper references and it is biased in the sense that the opposite point of view (e.g. positive effects of the Convention’s implementation in some countries) is not reported.

Solution:

We will change the name of the section into International Legal Framework. First we aim at completing the section about the international laws on international adoption, including other legal sources and presenting a less biased point of view with regard to the Hague Convention. Second, we consider it necessaryto improve the Law section adding more information about the general legal frameworks (and policy trends) specifically for 4 regions. Basically, each team member will briefly contribute analysis of Asian , African, American and European perspectives. Although an exhaustive mapping of national laws on international adoption is impossible, by presenting the general legal aspects of four regions at least we aim to provide a broader and global picture.

Reference:

UNDP Child Adoption Trend and policies, 2009, available at http://www.un.org/esa/population/publications/adoption2010/child_adoption.pdf

Isabelle Lammerant, Marlène Hofstetter , “Adoption: at what cost? For an ethical responsibility of receiving countries in intercountry adoption”, Terre des homes, 2007 ( Europe trends p. 21)

Claire Gore, « L’adoption. Adoptables, adoptés, quelles sont les réalités de l’adoption ? Sa place en lien avec les évolutions de la parentalité ? Son devenir institutionnel ? », Armand Colin, Paris, 2007 (European Context p. 190)

P.R. China Adoption Law (2005)

Aime Wata, « La protection internationale de l’enfant en droit congolais » Geneva :: Schulthess éd. Romandes, 2013

4- Sources of children for adoptive parents [ Editing on current section of “Sources of children for adoptive parents in the United States”]

Problem observed:

1) The current section is too biased and narrow, focussing only on the case of the US. Even though parents in the US are those adopting the most, International Adoption is a global issue and more standpoints have to be included.

2) Russia’s ban on US adoption is mentioned in this section. Considering the fact that some other countries are also placing bans on international adoption, this emphasis on the Russia- US story is partial.

Solution:

1) We will work on sources of children for adoptive parents from a worldwide perspective, not simply the US. Might be providing statistics by region/ country.

2) We will also include other countries implementing bans on international adoption, and whether these ban are against specific countries.

5- An “adoption market”? [New Entry]

As some of the literature so far reviewed raise several issues related to the “politicization” or “monetization” of international adoption, we are considering mentioning them by reporting the accurate references and trying to balance the positive and negative aspects related to the phenomenon. It will be a very challenging attempt to maintain a “neutral point of view”. We still have to discuss this potential “new entry” in greater detail. Specifically the main issues related to the topic we found are:

1) Demand and supply/ offer logic and international dynamics, gender perspective (Reference: Reysoo Fenneke, Bos Pien «N’est pas mère qui veut. Le paradoxe de l’adoption interntionale» Nouvelles Questions Féministes, vol. 30 n. 1, 2011; Herman Ellen, The paradoxical rationalization of Modern Adoption) – The politics of international adoption (Wcelebrities’participation in international adoption. Reference: Trevor Buck ,“International Child Law”,New York : Routledge, 2011)

2) Financial transparency (Isabelle Lammerant, Marlène Hofstetter , “Adoption: at what cost? For an ethical responsibility of receiving countries in intercountry adoption”, Terre des hommes)

3)Child Trafficking:

Problems observed:

Due to large demand of children adoption and situation of under- supply, many children are trafficked. This is closely linked with International Adoption, and is identified as one of the major drawbacks as pointed out by Wiki contributors on “talk” page.

Solution:

We will 1) briefly explain the relationship between international adoption and child trafficking; and 2) create the link to the Wikipedia entry of “Child Trafficking”.

Reference:

Isabelle Lammerant, Marlène Hofstetter , “Adoption: at what cost? For an ethical responsibility of receiving countries in intercountry adoption”, Terre des hommes

7- Positive consequence of international adoption. [edit]

Problem observed:

The current section of “Consequences of international adoption” has been very imbalanced distributed into negative and positive, with negative outweighing the positive parts. It threatens the neutrality of this article. Also identified by Wiki contributors on the “talk” page as major drawbacks.

Solution:

1) We will look into literatures to find more positive consequences and add these to the article, so as to recover the neutrality of wikipedia articles.

2) We will also improve the existing part of negative consequences, possibly adding some findings/questions that have been raised about “the ethics of adoption”

Reference:

Claire Gore, « L’adoption. Adoptables, adoptés, quelles sont les réalités de l’adoption ? Sa place en lien avec les évolutions de la parentalité ? Son devenir institutionnel ? », Armand Colin, Paris, 2007, (p. 77 -78)

Ingeborg Schwenzer, “International Adoption”,Bern: Stämpfli, 2009 (p.26)

Elements of Bibliography:

Aime Wata, « La protection internationale de l’enfant en droit congolais », Geneva :: Schulthess chulthess :n inter

Claire Gore, « L’adoption. Adoptables, adoptés, quelles sont les réalités de l’adoption ? Sa place en lien avec les évolutions de la parentalité ? Son devenir institutionnel ? », Armand Colin, Paris, 2007

Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, (concluded 29 may 1993)

Herman Ellen, “The paradoxical rationalization of Modern Adoption”, Journal of Social History, Vol. 36, No. 2, Winter 2002

Ingeborg Schwenzer, “International Adoption”, Bern: Stämpfli, 2009

Isabelle Lammerant, Marlène Hofstetter , “Adoption: at what cost? For an ethical responsibility of receiving countries in intercountry adoption”, Terre des homes, 2007

Nevena Vučković Šahović et al, “The Rights of the Child in International Law”,Stampfli Publishers, Berne, 2012

Reysoo Fenneke, Bos Pien «N’est pas mère qui veut. Le paradoxe de l’adoption interntionale» Nouvelles Questions Féministes, vol. 30 n. 1, 2011

The United Nations Convention on the Rights of the Child

Trevor Buck ,“International Child Law”,New York : Routledge, 2011

UNDP Child Adoption Trend and policies, 2009, available at http://www.un.org/esa/population/publications/adoption2010/child_adoption.pdf

Some other links to double check:

1- Schuster Institute for Investigative Journalism’s Gender and Justice Project

2- http://www.genderacrossborders.com/2011/05/26/international-adoption/

3- http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2366972/

International Legal Framework

At the international level, the main legal instrument on intercountry adoption is the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (hereafter the Hague Adoption Convention, 1993). However other relevant international legal instruments exist in order to ensure that the best interest of the child and the concern for her/his welfare inform the practices of intercountry adoption. For example, the United Nations Convention on the Rights of the Child (1989) contains some specific references to intercountry adoption . The Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally (1986) calls Member States to establish policy, legislation and effective supervision for the protection of children involved in intercountry adoption. All those instruments have some common principles: -the principle of subsidiarity according to which intercountry adoption should only take place when suitable adoptive parents cannot be identified in the country of origin of the child -the best interest of the child should be the paramount consideration -the placement of the child should be made through competent authorities or agencies with the same safeguards and standards as national adoptions -in no case should an adoption result in improper financial gains for those involved According to the Convention of the Rights of the Child (art. 21), as well as to the UN Declaration on the Protection and Welfare of Children (art. 17) and the Hague Adoption Convention (Preamble and art. 4), international adoption should be considered as an option if other arrangements (with priority to kins and adotive families) cannot satisfactorily be arranged for the child in her or his country of origin (principle of subsidiarity between national and international adoption). However the international community still disagree on the point whether the option of being placed in a permanent family setting through international adoption should prevail on the alternative of the placement of children in domestic care institutions. The United Nations Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (2000) is an additional international instrument which calls on States parties to ensure that coercive adoption is criminalized under national law, regardless of whether such an offence is committed domestically or transnationally, on an individual or organized basis.

UN Declaration Relating to the Welfare of Children (1986)

The UN Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally was adopted by General Assembly resolution 41/85 of 3 December 1986. The UN Declaration Relating to the Welfare of Children reaffirms principle 6 of the Declaration of the Rights of the Child, according to which “the child shall, wherever possible, grow up in the care and under the responsibility of his parents and, in any case, in an atmosphere of affection and of moral and material security” . Article 17 affirms the principle of subsidiarity in these terms: “If a child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the country of origin, intercountry adoption may be considered as an alternative means of providing the child with a family.” Article 24 requires Member States to consider the child’s cultural and religious background and interest. The Declaration encourages States not to hurry the adoptive process. Article 15 states “Sufficient time and adequate counselling should be given to the child's own parents, the prospective adoptive parents and, as appropriate, the child in order to reach a decision on the child's future”.

UN Convention on the Rights of the Child (1989)

The United Nations Convention on the Right of the Child marks a turning point in the international law of children’s rights recognizing the child as an active subject of international law whose views must be taken into consideration when dealing with matters affecting her or him (art.12). The principle of the best interests of the child should be a primary consideration in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies (art, 3). This same principle shall be the paramount consideration also when States Parties recognize and/or permit the system of adoption. Particularly, article 21 requires that States Parties “ensure that the adoption of a child is authorized only by competent authorities who determine that the adoption is permissible in view of the child's status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption. The placement of the child also should not result in improper financial gain for those involved in it (art. 21.d).

The Hague Adoption Convention (1993)

Recognizing some of the difficulties and challenges associated with international adoption and in an effort to protect those involved from the corruption, abuses and exploitation which sometimes accompanies it, in 1993 the Hague Conference on Private International Law developed the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption . It came into force on May 1995. As of March 2013, the Contracting States of the Convention are 90. Republic of Korea, Haiti, Nepal and the Russian Federation are signatories but have not ratified .With respect to the previous multilateral instruments which include some provisions regarding intercountry adotion, the Hague Adoption Convention is the major multilateral instrument regulating international adoption which calls for the need for coordination and direct cooperation between countries to ensure that appropriate safeguards are respected in order to promote the best interest of the child (ar. 1)and prevent the abduction, the sale of, or traffic in children. The Convention also requires that the all process should be authorized by central adoption authorities designated by the contracting states (chapter III of the Convention outlines the roles and responsibilities of this authority). If fully implemented at the national level, the Convention offers also a protective framework against the risks potentially implied in private adoption (when the adoptive parents set the terms of the adoption directly with the birth parents or with children's institutions plced in the country of origin, without recurring to accredited adoption service providers) . The Convention leaves to the states discretion with regard to which public authority should be designated as central adoption authority (whose supervision and authorization is necessary to proceed with the adoption, art. 17 ) and which other bodies should be duly accredited as the provider of adoption services (art.9) . If fully implemented at the national level, the Convention offers also a protective framework against the risks potentially implied in private adoption (when the adoptive parents set the terms of the adoption directly with the birth parents, without recurring to accredited bodies) . The Guide to Good Practice for the implementation and Operation of the 1993 Hague Intercountry Adoption Convention, provides a guidance for the Convention operation, use and interpretation. The Convention has been considered crucial because it provides a formal international and intergovernmental recognition of intercountry adoption, working to ensure that adoptions under the Convention will generally be recognized and given effect in other party countries. To comply with international standards, many changes have been introduced in national legislation enacting laws to criminalize the act of obtaining improper gains from intercountry adoptions . However instances of trafficking in and sale of children for the purpose of adoption continue to take place in many parts of the world. Especially during emergency situations, natural disasters or conflicts, has been found that children are adopted without following appropriate legal procedures and risk to be victims of trafficking and sale . It has been raised also the issue that an excessive bureaucratization of the adoption process –following the implementation of the Hague Adoption Convention’s provisions - possibly establishes additional barriers to the placement of children

International Adoption in Europe

Since 1970s, European countries such as Spain, France, Italy, and several Scandinavian countries have experienced a considerable increase in the demand for adopted children from non-European countriesas a result of a scarce numbers of national children available for adoptions. Gender studies have also suggested that this is the result of the modern trend in the Global North of delaying the conception of the first child which consequently increases the risk of reducing fertility and increase the demand for adoption. However, recent data show a stabilization or even a decrease in the inter-country adoptions . From one side it has been argued that this is the result of a decrease in the causes of abandonment, implementation of social policies in favour of families, less stigmatization of unmarried mothers, the economic development and an increase in the national adoptions in the main source countries . From the other side it has been considered also the result of new regulation and policies adopted from some countries of origin (e.g. Romania)aiming at regulating the outflow of children and preventing child trafficking. The trend however differs from country to country. Between 2000 and 2005, for example Spain, France and Italy have experienced an increase in international adoptions of 70%, while in Switzerland and in Germany they have decreased and in Norway have remained stable.

European Legal Framework

Council of Europe

The enactment and enforcement of international standards and laws regulating adoption depends on how competent authorities in each contracting states interpret international instruments and implement their provisions. European regulation and practices on the matter vary from country to country. An attempt to harmonize adoption laws among Member States of the Council of Europe was made with the European Convention on the Adoption of Children (1967), entered into force in April 1968. In 2008 a revised version of the European Convention on the Adoption of Children was prepared by a Working Party of the Committee of Experts on Family Law under the authority of the European Committee on Legal Cooperation within the framework of the Council of Europe. The Convention was opened for signature on 27 November 2008. As of November 2013, the 1967 Convention has been ratified by 18 of the 46 Member States of the Council of Europe, while 3 Member States are signatories but had not yet ratified. As for the revised Convention only 9 countries have signed and 7 signed and ratified. The European Convention establishes common principles which should govern adoption, the procedures affecting it and its legal consequences in order to reduce the difficulties in promoting the welfare of the adopted children caused by the differences in legislation and practices among the European States. Among its essential provisions, the Convention stipulates that the adoption must be granted by a competent judicial or administrative authority (art. 4), that birth parents must freely consent to the adoption (art.5) and that the adoption must be in the best interest of the child (art.8). Any improper financial advantages arising from the adoption of a child are prohibited (art.15).

European Union

Within the European Union regulation, reference to intercountry adoption is made in the article 4 of the Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification. The article regulates the immigration of adoptive third country national children provided that the parents are established third country national within the European Union. EU Member States authorized the entry and residence of children adopted in accordance with a decision taken by the competent authority of the Member State concerned or a decision which is automatically enforceable due to international obligations of the Member State or must be recognized in accordance with international obligations (art. 4 (b)). With the ratification and adoption of the Hague Adoption Convention, European countries have developed training for social workers in charge of provide international adoption-related services, they have pointed competent specialists, created a centralized system of control (e.g. Italy and Germany). On the contrary, in Switzerland the bureaucratization of the procedures has been considered to have slowed down the all process resulting in a decrease of the number of children adopted. Traditionally in Spain, France and Switzerland, the adopting parents can choose between two paths to carry out international adoption: recurring to the intermediation of an accredited body – most of the time a private organization – and with the supervision of the central adoption authority designated by the state, or opting for a private adoption without the referral to the intermediary. In Italy and Norway the second option, considered as “private adoption”, is forbidden. In Italy for example all international adoptions should be arrange by competent bodies accredited by national law. The only exception is granted to prospective adoptive couples whose one of the spouse is native of the country from which the child is demanded or for Italian families who has lived for long period in the country and have a significant relation with its culture. In these two cases their demand for international adoption can be sent to the International Social Service, an international not-for-profit organization active in more than 100 countries through a network of branches, affiliated bureaus and correspondents, without recurring to the accredited national bodies. France and Germany have recently adopted a third path, creating public bodies, which exercise simultaneously a formal intermediary role and in practice perform the functions of a central adoption authorities. Data show that in all European countries, both those which legally prohibit and allow for it, the practice of private adoption is widespread and has raised concerns most of all in relation to the risk of child trafficking. Many European countries have signed bilateral agreement with countries of origin –source of adopted children- (e.g. Spain with Philippines and Bolivia, France with Vietnam). Legally speaking bilateral agreements cannot disregard the guarantees provided by the Convention of the Rights of the Child and by the Hague Adoption Convention.