When children are adopted we tend to focus on the fact that for these children their legal and social identity changes—they go from being orphans to being sons and daughters in a new family. But when these children are adopted internationally, their legal status involves more than an adoption court issuing an adoption order. These children are not only new members of new families, they become new citizens of new states. Their legal status is transferred across state borders, and this legal exchange needs to be understood from both sides of the exchange.
The first article in this series argued that thinking about intercountry adoption as an exchange has important implications for how we understand the practice and how we can best protect vulnerable children and adoptive parents. The second installment examined the motivations, institutions, and complications on the adopting side of intercountry adoption. But perhaps the most interesting side of the exchange is the state with vulnerable children. This state must decide whether or not it will allow foreigners to adopt children, and how restrictive it will make the adoption process. All these decisions are made at the state level through policy negotiations. Thus, this final installment in the series examines the motivations, institutions, and complications for the states in the intercountry adoption exchange that allow foreigners to adopt children.
Sending states play a vital role in the intercountry adoption exchange as the state allowing foreigners to adopt vulnerable children. There are three legal pathways through which states “allow” intercountry adoption, and each pathway reflects a different set of motivations. Some states have legislation that legally provides for the possibility of intercountry adoption. For example, China’s adoption law of 1991 specifically states that foreigners can adopt Chinese children under certain circumstances. States with intercountry adoption laws usually have robust intercountry adoption programs, and often have implemented the provisions of the Hague Convention on Intercountry Adoption, the multilateral treaty governing the process. For these states, intercountry adoption laws are typically formulated so that an adoption in the origin state of the child is also legal in the receiving state of the child, and children usually receive citizenship upon entering the destination state. These states legally facilitate intercountry adoption and are usually committed long-term to the practice.
Second, there are states that do not legally facilitate intercountry adoption by transforming their legal system to provide for such adoptions, but they have no laws prohibiting the practice. Foreigners can adopt children within the state, and there is no prohibition against the adopted child immigrating to another state. These adoptions are typically processed differently than the first category; the child often must be readopted in their destination state. Some of these states have intercountry adoption programs, but they are unwilling or unable to absorb the cost associated with transforming their laws. For states that fall in this category, states like Belize and Bangladesh for example, there is either a weak or still developing commitment to intercountry adoption or there is not political will to cement the state’s commitment to the practice. Thus, intercountry adoption serves as a more limited solution to the state’s problem with vulnerable children.
Third, there are some states that allow a foreigner to become the legal guardian of a child within its state then allow that child to migrate to another state. The legal identity of the child does not change within its birth state, but in the adopting state, the child is adopted and given a new legal identity. These adoptions, while possible, are often legally complex. For example, several Muslim states have guardianship provisions because there is no category for adoption in Sharia law. A foreign citizen can gain guardianship of the child in their birth state under Sharia law, but the child does not change their legal identity as a part of the new family in their birth state. Once the child migrates to the adopting state, the family adopts the child into its family in the adopting state changing the child’s legal status. For states in this category, intercountry adoptions are only allowed in limited circumstances, and seen as less preferable than other domestic solutions to vulnerable children.
In the sending state of the child, there are institutions at the international, state, and the local level which interact to process adoptions. At the international level, the Hague Convention on Intercountry Adoption is a focal point of coordination that helps states facilitate adoptions across international borders. Though all the adopting states are committed to the treaty at this time, many of the states which allow foreigners to adopt vulnerable children are not committed to the treaty, and adoptions are processed outside the Hague framework. In these cases, adopting states and the sending states of children coordinate directly in bilateral relationships. This bilateral negotiation differs depending on the sending state’s pathway for allowing adoptions.
For states in the first category, there are typically institutions that are designated as the adoption authority that handles the processing of intercountry adoptions. For example, in Ethiopia, the Ministry of Women, Children, and Youth Affairs (MOWCYA) is responsible for processing adoptions out of Ethiopia. These designated institutions coordinate state-level policy on adoptions and interface with the institutions in the adopting state. States in the other two categories often do not have institutions designated to the practice of intercountry adoption, and adoptions are processed through the courts and domestic lawyers who are able to navigate the court systems.
At the local level, adoption agencies are the advocates seeking to build robust intercountry adoption relationships between states. Therefore, they often are the agents seeking to convince states with vulnerable children that intercountry adoption is an effective solution for states that have an abundance of vulnerable children. Moreover, because adoption agencies are always connected to an adopting state, they are specifically seeking to facilitate adoptions back to the adopting state with which they are connected. These agencies often have their own orphanages where they house children who are eligible for adoption. These children’s homes then serve as examples of how to manage orphan care. Thus, not only do adoption agencies spread information about adoption, they also spread standards and best practices for child welfare programs.
Just like with the adopting side, there are also complications in the process for the sending states of children for intercountry adoption. For example, although adoption can be an effective solution for states facing a child welfare crisis, intercountry adoption is often quite unpopular among the publics in these states. Public opposition to intercountry adoption can cause the government to respond and shut down intercountry adoption programs already processing adoptions, leading to interruptions in these adoptions. Moreover, because many of the states facing child welfare crises have weak institutions that present the opportunity for corruption, intercountry adoption programs in the sending states of children can become inextricably tied to corrupt practices that undermine the legitimacy of individual adoptions in particular and adoption relationships in general.
Regardless of our personal connection with adoption, we all have a responsibility to understand the dynamic affecting vulnerable children around the world. Ultimately, intercountry adoption is a solution to social welfare problems that should be focused on meeting the needs of vulnerable children. Thus, it is vital that we understand the political dynamics in the states where the vulnerable children are located. Armed with this knowledge, we can better speak into debates on adoption from particular sending states and think creatively about how to process more accountable and corruption-free adoptions at all levels of the process.
-Becca McBride is Assistant Professor of Political Science at Calvin College, in Grand Rapids, Michigan. Her research focuses on investigating how politics influence states’ efforts to control intercountry adoption, and how advocacy organizations influence state policy on adoption. She has a PhD in Political Science from Vanderbilt University and an MA in Russian, Eurasian, and East European Studies from Georgetown University.