INTERNATIONAL ADOPTIONS:

PROTECTING FUNDAMENTAL HUMAN AND CHILDREN RIGHTS

“The true measure of any society can be found in how it treats its most vulnerable members.” Ghandi

Camilla Turquia Gomes

Ohio Northern University College of Law

May 2014

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TABLE OF CONTENTS

I. Introduction

II. The Right to a Family is a Basic Human Right

A. Medical Evidence of the Extreme Hardship Suffered by Institutionalized Children

B. The Fundamental Right of a Child to Grow in a Family

III. International Adoptions Protecting Fundamental Human Rights

A. Pathway to Hostility and Decline: Worldwide Crises

B. Syllogism

IV. The Future of International Adoptions

A. The hostility to International Adoptions Must Stop: Necessary Reforms in a Rule

of Law Perspective

B. The Bill Children in Families First

V. Comparative Analysis of Countries in the matter of International Adoptions

A. United States of America and Worldwide Impact

B. Brazil

VI. Conclusion

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I - Introduction

U.S citizen MaryLee Lane moved to the Philippines in 1974 and became

involved with orphanages in that country. She soon recognized the enormous plight of

hundreds of abandoned and neglected children who were unlikely to survive the age of

five, struggling with a life in institutions that lacked the basic necessities. Ms. Lane

worked to establish a pilot program in early 1975 that eventually lead to her initial

intercountry adoption program, the first one in the Philippines, with 16 children matched

for placement in that same year. Subsequently her work was extended to 18 other

countries, and received national attention for her efforts to alleviate the plight of

children.1

MaryLee Lane is the founder and CEO of Hand in Hand International

Adoptions, an American based non-profit that has placed more than 9,000 children from

18 countries with permanent loving families in the U.S. She was the first foreigner to

provide a sustainable solution for the many children living in overcrowded orphanages in

the Philippines, and for the past 40 years her work has been devoted to the cause of

parentless children living in institutional care.

Working for almost 40 years with inter country adoption, Ms. Lane can

testify to all the steps of the development of this institute, and has lived through the

change of proceedings, the enactment of new regulations, and implementations of

international treaties. She has also personally witnessed thousands of children that were

living in institutions in developing countries being successfully placed into American 1 http://www.handinhandinternationaladoptions.org/about-hand-in-hand/

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families and having the opportunity to thrive and become beautiful human beings. She

has already attended their weddings, graduations and even helped them to adopt children

themselves. These children wouldn’t have a future if it had not been for Ms. Lane’s

efforts into finding them families through international adoption.

I first felt passionate about this institute of International Adoption when I

had the privilege of meeting Ms. Lane in April 2012, and heard some of her stories about

those children. I heard her telling me stories about children that were unlikely to live

through their childhood, often very sick, that were adopted by American families and

developed with them a bond of love and affection that allowed them to grow happily,

achieving all the dreams they could possibly have.

Before entering my career in the practice of international law abroad, I

lived my entire life in Brazil. I have witnessed the plight of children in developing

countries with my own eyes; I have seen street children everyday, sometimes driven by

their own parents to practice illegal activities, such as drug trafficking or prostitution. The

struggle and lack of opportunities of those children were always something close to heart.

I know that these most vulnerable human beings don’t have a choice, and that they are

innocent victims of Brazil’s social and economic conditions with high rates of

unemployment and low salaries.

At a young age I also learned about the parentless children that lived in

institutions, which in Brazil are not called orphanages, because only very small

percentage of the children are in fact orphans. The majorities are children whose parents

could not care of them, and either neglected, abused, battered or terribly hurt them. I

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often visited these institutions to play with the children, all of whom were severely

damaged from dreadful past life experiences and desperately in need of attention, love,

and care. São Paulo’s Adoption Foundation estimates that more than 200,000 children are

living in institutions in Brazil.2 These children have two possible options: either they are

adopted, or they will continue to grow up and live in institutional care until they turn 18

years old, when they are considered adults and have to live on their own in the streets. I

have always known the end of this story. Those vulnerable and unprepared youths that

were not adopted would live in the streets and engage in criminal activities, becoming a

serious social problem in the country.3

Children have been institutionalized since the days of the poor house and

the living conditions in those institutions in developing countries are, most of the time,

inhumane.4 Overcrowded and lacking resources for proper food, education and staff to

care for the children, these facilities caught world’s attention when the situation of the

orphanages in Romania came to light illustrating a serious violation of Human and

Children rights. Harvard Neuroscientist Charles A. Nelson, PhD, was sensitive to this

situation. He conducted a research project for many years about the impact of these

extreme living conditions on brain development of the children living in Romanian

orphanages5. The results he found were disturbing and will be discussed in Chapter One.

2 http://www.gaasp.org.br/index.php?option=com_content&view=article&id=362:os-

orfaos-do-brasil&catid=58:reflita&Itemid=73 3 Foltran, Mônica. Online article. Published online 9/28/2012 (Brazil)

http://diariocatarinense.clicrbs.com.br/sc/geral/noticia/2012/09/jovens-em-israel-

vitimas-do-trafico-cobram-promessas-do-governo-brasileiro-3900440.html 4 Stuck Documentary. Thaddaeus Scheel. Globox Media Group Inc, 2012. DVD 5 http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2846084/

http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2831707/

http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3722610/

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Also in Chapter One I will defend that the right to a family is a basic and

fundamental Human Right of Children. To support this premise I will demonstrate that

the bond between the child and the parent is a fundamental element to the healthy

development of children6, and the parentless children living in institutions lack this

important element.

The enormous numbers of children in the world who are institutionalized,

added to the broad range of social problems in developing countries, affect directly these

countries capacity to place these children domestically with adoptive families, so millions

of children are left in institutions and on the streets, being denied the opportunity to

thrive.7 International adoption significantly increases the chance for these children to

have a family and a better future. International adoption will be presented in Chapter Two

as an effective way of protecting neglected and abandoned children of the world.

Furthermore, Chapter Two will examine important considerations, such as

the worldwide crisis that international adoptions have incurred in the past years, and the

unfair hostility within the subject in the international community. Unfortunately, despite

the undeniable importance of international adoptions to protect fundamental human and

children rights, since 2004 the number of children placed in the U.S., which is the major

receiving country of the world, has reduced 69%8. The actual meaning of this is that

thousands of children were left in institutions when they could have been given the 6 Charles Nelson, professor of pediatrics at Harvard Medical School and director of research

at Harvard-affiliated Children’s Hospital Boston Developmental Medicine Center. Link at

http://news.harvard.edu/gazette/story/2010/10/breathtakingly-awful/ 7 Orphan Hope International (UNICEF). http://www.orphanhopeintl.org/facts-statistics/ 8 U.S. Department of State, Bureau of Consular Affairs.

http://adoption.state.gov/about_us/statistics.php

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opportunity to have a family and thrive. The causes, and consequences of this crisis will

be detailed in Chapter Two.

Even though this crisis has not been faced in its real importance and

recognized as a serious threat to human life by the authorities of the world, there has been

a strong effort by respected academic bodies and organizations in the U.S. to change this

situation. These organizations have been working extensively to present reliable and

sustainable solutions to solve the problem, and their impressive work and efforts will be

examined in Chapter Four in a rule of law perspective. This chapter will also focus on the

legislation Children in Families First (CHIFF), new pending in the U.S congress, and

explain its important solutions for the problem.

Chapter Five will bring a comparative perspective of the subject in the U.S

and Brazil, and these countries policies in that regard.

The current situation of international adoptions in the U.S. is critical, and

this has a worldwide impact because the U.S. is the major receiving country of

international adoptees. Stories like MaryLee Lane’s, who has devoted her entire life to

the cause of parentless children, are threatened by the current situation. Most critically,

parentless children of the world are growing up in institutions, where they are being

denied the opportunity to thrive, but are expecting to be placed into nurturing families

that can love, protect, educate and encourage them to follow their passions while they

grow into happy adults.

2. The Right to a Family is a Basic Human Right

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A. Medical Evidence of the Extreme Hardship Suffered by Institutionalized

Children

In the year 2000 a group of American doctors began an extensive research project

with the support of Tulane University, the University of Maryland, and Boston Children’s

Hospital about the effects of institutionalization for the development of Children9. This

project is named the Bucharest Early Intervention Project (“BEIP”) and has the purpose

of monitoring the brain development of 136 parentless children from Romania in the age

between six and thirty six months. These children are in two separate groups: 68 were

assigned to remain in institutional care, and the other 68 were assigned to foster care. A

control group of 72 children that were never institutionalized was also maintained10.

The results of this ongoing project were published in several articles, and one of

the most complete was published by the National Scientific Counsel on the Developing

Child, named “The Science of Neglect: The Persistent Absence of Responsive Care

Disrupts the Development of the Brain.”11 These are results of more than 10 years of

consistent research on this project that were also published in 2014 at a book by Harvard

University Press, named Romania’s Abandoned Children – Deprivation, Brain

Development, and the Struggle for Recovery.12

Each of these publications has its own particular focus, but all of them show the

same disturbing conclusion: the brains of the children who live in institutions are severely

9 http://www.bucharestearlyinterventionproject.org/About-Us.html 10http://www.unicef.bg/public/images/tinybrowser/upload/PPT%20BEIP%20Group%20f

or%20website.pdf 11 Center on the Developing Child at Harvard University. (2012). The Science of Neglect: The

Persistent Absence of Responsive Care Disrupts the Developing Brain: Working Paper

12. www.developingchild.harvard.edu 12 http://www.hup.harvard.edu/catalog.php?isbn=9780674724709&content=book

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and permanently damaged due the lack of stimulation and human interaction.13 The

results of the BEIP are emphatic in showing that the more time these children spend on

institutions without proper care and attention and no outside interaction, the more they

develop a physical condition named “psychological dwarfism.”14 This condition shows

that the lack of contact with people and outside stimulation severely affect their capacity

to grow and thrive.

The children observed in the BEIP research actually seemed much younger then

they were.15 They showed less weight and height, and other physical aspects of younger

children.16 When children are left under these conditions in institutions, they languish and

incur severe brain damage that results in often-incurable mental disorders.17 This was the

situation that the doctors observed in the orphanages in Romania, and they even gave

testimonies that children were living in such horrible conditions that they made an

agreement that they couldn’t cry in front of them, but several times they had to step out of

the room because they could not handle it.18

13 Washington Post. Youtube video (2014)

http://www.washingtonpost.com/sf/style/2014/01/30/a-lost-boy-finds-his-calling/ , 14 www.emedicine.medspace.com “Definition: Psychosocial short stature (PSS) is a disorder

of short stature or growth failureand/or delayed puberty of infancy, childhood, and

adolescence that is observed in association with emotional deprivation, a pathologic

psychosocial environment, or both. A disturbed relationship between child and caregiver is

usually noted. A number of pediatric endocrinologists have studied and categorized several

generally accepted subtypes; these clinicians also have described therapeutic interventions

for children with PSS. http://emedicine.medscape.com/article/913843-overview

15 Fox, Sharon E, MD. Levit, PAT Ph.D. Nelson, Charles Ph.D. How the Timing and Quality of

Early Experiences Influence the Development of Brain Architecture. National Institute of

Health (2011) at p. 1 16 Id. at p.9 17 Id. 18http://www.istoe.com.br/assuntos/entrevista/detalhe/315997_AS+CRIANCAS+NAO+TIN

HAM+QUEM+AS+AMASSE+

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In the words of Charles A. Nelson, III, Ph.D.19, one of the three principal

investigators of the BEIP, he described the impact being neglected and growing up in

institutions has on a child20:

Experiences are important for facilitating brain development. Around

between 20 to 24 months there is a cutting point, and unless these

experiences occur in this window of time, the brain development can go

off track. What happens in the situations with neglect is that these

experiences are lacking, and the brain is in sort of a holding pattern

looking for experiences. And if there are no experiences it means that

the brain is miss-wired. Children that live under these conditions have

much lower IQ, a lot of attention deficit hyperactivity disorder, lots of

anxiety, attachment problems, difficulties in interpersonal relationships,

and they actually show a smaller brain. And then when we record the

19 Biography of Charles A. Nelson, III, Ph.D. Professor of Pediatrics, Neuroscience, and

Psychiatry at Harvard Medical School; additionally, he is the Director of Research in the

Division of Developmental Medicine and holds the Richard David Scott Chair of Pediatric

Developmental Medicine Research at Children’s Hospital Boston. He has been inducted as a

Fellow by the American Psychological Society and the American Association for the

Advancement of Science, and the Romanian Academy of Medical Sciences; Dr. Nelson has

also received an honorary doctorate from Bucharest University. Recognized internationally

as a leader in the field of developmental cognitive neuroscience, Dr. Nelson has achieved

numerous breakthroughs in broadening scientific understanding of brain and behavioral

development during infancy and childhood. Over the last two decades, Dr. Nelson has

focused his research efforts on the development and neural bases of memory; recognition

and processing of objects, faces, and emotion; and neural plasticity. He studies both

typically developing children and children at risk for neurodevelopmental disorders,

particularly autism. http://www.bucharestearlyinterventionproject.org/Our-People.html 20 Vide footnote 16, youtube video, transcript. Interview with Charles A. Nelson, III, Ph.D.

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electro activity of their brains, it shows much less electro activity than

the other group who was not living in institutions 21

Dr. Nelson, also mentions in the same interview why they ended up having this

study with children in Romania. The situation of the Romanian orphanages and the plight

of an enormous number children living under these condition were caused by the regime

of the dictator Nicolae Ceausescu that lasted from 1972 to 1989.22 Through his

oppressing and tyrannical government, he implemented strong policies to populate the

country, based in his view that for the country to be strong it had to grow in population.

He outlawed abortion and contraceptive methods, and even imposed taxes for couples

that had fewer than three children. He also built many state owned institutions and

orphanages, to where the parents sent their children for the state to take care of, because

their economic condition would not allow them to care of their own children. During that

time, it became a common practice in Romania for the parents to drop their children off

in institutions, which soon became overcrowded with infants living under terrible

conditions.23

This dreadful situation was hidden to the outside world by Ceausescu’s

oppressive policies that censored the media and all forms of protest.24 Therefore, in 1989

the dictator was executed by the military and that was the end of his regime.25 The world

discovered the situation of the orphanages in Romania in October 1990 when ABC

21 Id at 7’30’’min 22 http://www.imdb.com/name/nm0147476/bio 23 Supra n. 15 at p. 9 24 Id. 25 Id.

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channel aired the 20/20 report “Shame of a Nation – Unsaveable Children of Romania.”26

This report documented the living situations in the orphanages in Romania, which were

estimated to have approximately 80,000 children suffering the most severe forms of

neglect.27

It was later confirmed by BEIP that these children found in Romanian institutions

presented severe brain damage and a life brutally impacted by those terrible past life

experiences. The BEIP consistently facilitates the people to recognize that children need

the bond of affection formed with their parents to develop and thrive. They must have

other persons to care for them, and to respond to their stimulations providing them with

experiences that are lacking in neglected children.

As a result of the ABC documentary in 1990, there was a great effort by

Americans to help these children in the following years.28 Reporters, Doctors,

Researches, Missionaries, were in absolute shock and suffered a severe emotional impact

when they personally saw the situation on the Romanian orphanages.29 At that time some

Americans were sensitive to the situation and adopted some of these children, providing

them the love and affection they needed.30

Izidor Ruckel is one of the children that were adopted at that time. He was born in

Romania under Ceausescu’s regime, and had polio when still a baby. His parents took

him to a hospital, and never came back to get him. After Izidor was cured of the polio,

26 http://vimeo.com/58260574 - abd documentary 20/20 “Shame of a Nation - Unsolvable

Children of Romania” 27 Id. 28 Id. 29 Id. 30 Id.

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even though he was permanently harmed by his early medical condition, he was

transferred to an orphanage, where he lived for 11 years. At the age of 11, he was adopted

by an American family and came to live in San Diego, California. When he came to the

U.S., he had the opportunity to thrive and bravely face his dreadful past life experiences

with the support of his adoptive family.31

Izidor’s story is one of the many that reflect the most extreme form of the neglect

suffered by children in orphanages. Unfortunately, this problem is not only observed in

Romania but also in millions of those other institutions around the world. It is estimated

that there are still approximately 70,000 parentless children living in orphanages in

Romania; and, most critically, it is estimated that more than 10 million children32

currently live in such institutions around the globe.

The BEIP was not the only medical study that reached the conclusion that “a

stimulus-rich environment is the foundation of neural development in infancy; children in

an institution may not experience such an environment”33. The medical conditions of

orphans have been the center of many respected publications,34 and all of them are

emphatic in affirming that children who spend considerable time at an institution retain

31 Id. 32 Stuck. Supra n.4 33 Don C. Van Dkyke et al., Promoting a Healthy Tomorrow here for Children Adopted from

Abroad, http://contemporarypediatrics.modernmedicine.com/contemporary-

pediatrics/news/clinical/ophthalmology/promoting-healthy-tomorrow-here-children-

adopted (Fev, 1 2003) 34 Bucharest Early Intervention Project. Publications.

http://www.bucharestearlyinterventionproject.org/Publications.html

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“medical, behavioral, emotional, and developmental difficulties that can severely impact

their long-term well-being.”35

Not all the orphanages in the world offer the same living conditions of the

Romanian ones, but they have in common the fact that all children living in these

facilities do not have a family to care for them with which to develop a bond of affection.

The problem is critical in developing countries, where those institutions tend to lack basic

necessities to care for the children.36

Furthermore, developing countries often have a disrupted society, and only a

minority of the neglected children is living in institutions. The social welfare of deprived

countries and the extremely poor conditions leaves thousands of children on the streets,37

especially when those countries are impacted with war or natural disasters such

earthquake and tsunamis. Millions of children are left on the streets with no one to care

for them, and nowhere to go. These are all forms of neglect suffered by children taking

place today, and can be observed in most developing countries in the world.

All of the facts exposed above lead this to one simple conclusion: every child

needs to grow in a family. It has been extensively demonstrated by medical evidence that

children must have experiences provided by human interactions that stimulate the brain in

order to properly develop and thrive.

35 McKinney, Laura. International Adoption and the Hague Convention: Does

Implementation of the Convention Protect the Best Interest of the Children. 6 Whittier J.

Child. & Fam. Advoc. 361 2006-2007. At p. 5 36 Id. 37 Bartholet, Elizabeth, International Adoptions: The Human Rights Position, 1 Global Policy

(2010)

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Additionally, in the situation of neglected and parentless children living in

institutions, their best interest is to be placed with a family at the earliest possible

moment.38 As many good orphanages as there are in the world, these institutions will

never be able to provide the same love and attention that the children have when placed

with a family. Orphanages cannot be a final place for a child.39

B. The Fundamental Right of a Child to Grow in a Family

“Human beings need parental care for a prolonged period to survive physically and to develop mentally and emotionally. Even the best institutions fail to provide the kind of care that infants and young children need” 40 Elizabeth Bartholet (2012)

The United Nations defines human rights as “rights inherent to all human beings,

whatever our nationality, place of residence, sex, national or ethnic origin, color, religion,

language, or any other status.”41 In other words, simply by existing, all persons have

human rights. These rights protect the basic conditions necessary for healthy human

survival, such as the right to life, liberty and security.42

Laws, conventions and treaties have extensively covered the issue of human

rights. The Universal Declaration on Human Rights, which was enacted in 1948 after

WWII, is still one the most cited instrument in the area to this date.43 Articles One and

38 Browne, K. et al. (2004), Mapping the Number and Characteristics of Children Under 3 in

Institutions Across Europe at Risk of Harm, report prepared by Center for Forensic and

Family Psychology at University of Birmingham. At pg. 11 39 MaryLee Lane, Hand in Hand International Adoptions, see footnote 1 40 Bartholet, Elizabeth. International Adoptions: The Child’s Story”, Georgia State University

Law Review, 24 (2), at p.346 41 http://www.ohchr.org/en/issues/pages/whatarehumanrights.aspx 42 Article 4 of the Universal Declaration of Human Right

http://www.un.org/en/documents/udhr/#atop 43 Id.

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Two state that all humans are born equal, and they are entitled to all rights and freedom

with no distinction of age. Although it seems logical to conclude that children are entitled

to all protection granted by human rights, the moral and legal progress on the rights of the

children moved slowly throughout history44.

Most specifically about Children Rights, the Declaration on the Rights of the

Child, endorsed by the League of Nations on 1924, created the foundation for the UN

Declaration on the Rights of the Child, enacted on 1959.45 These instruments use

different words to state the same core principle that “mankind owns to the child the best it

has to give,”46 in the purpose of resolving all possible matters to the “best interest of the

child.”47 Therefore, this core principle of the best interest of a child is violated by some

international policies that do not recognize the right to grow in a family as a fundamental

right.

Maintaining the same core principle of the best interest of the child, the United

Nations Convention on the Right of the Child (“CRC”) entered in force in 1990, and

constitutes “the first legally-binding international instrument to confer upon children an

expansive range of basic human rights.”48 The CRC defines children as “every human

being below the age of eighteen years unless under the law applicable to the child,

44 Barrozo, Paulo. 55 N.Y.L. Sch. L. Rev. 701, Finding Home in the World: A Deontological

Theory of the Right to be Adopted 45 http://www.loc.gov/law/help/child-rights/international-law.php 46 Geneva Declaration on the Rights of the Child, 1924, Preamble 47 The U.N. Declaration of the Rights of the Child comprises a Preample and ten principles.

G.A. Res. 1386 (XIV), 14 U.N. GAOR Supp. (No. 16) at 19, U.N. Doc. A/4354. For an online

text of the Declaration, see the Office of the U.N. High Commissioner for Human Rights

(UNHCHR) Web site, http://www.unhchr.ch/html/menu3/b/25.htm 48 McKinney, supra n.27, at p. 376

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majority is attained earlier,”49 and it granted several new rights of the children protected

under International Law that did not exist before and provided new versions for existing

rights.50 New rights include the right to preserve one’s identity (articles 7 and 8), the right

for vulnerable children to have special protection as refugees (article 20 and 22), and new

versions of existing rights involving the freedom of expression (article 13).51

The above-mentioned rights are subsidiary in comparison to the fundamental right

to a family. As discussed in the last chapter, the family bond is necessary for children to

thrive, and those that are deprived of that bond suffer from several social and

psychological disorders due to retardation on their brain development.52 Without this

fundamental protection, neglected children that live in institutions or on the streets will

incur significant brain damage that will impact them for the rest of their lives.

The CRC initially seemed to recognize the right to grow in a family under this

perspective when it stated in the preamble:

Convinced that the family, as the fundamental group of society and the

natural environment for the growth and well-being of all its members

and particularly children, should be afforded the necessary protection

and assistance so that it can fully assume its responsibilities within the

community,

49 CRC, supra n.6, at article 1 50 See footnote 36 51 Id. 52 See Chapter 1.A

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Recognizing that the child, for the full and harmonious development of

his or her personality, should grow up in a family environment, in an

atmosphere of happiness, love and understanding53

A person reading the CRC’s preamble, including me, gets the impression that this

instrument will use the right to a family as a premise for the other rights enumerated in

the articles that follow. However article 21 of the CRC.54 when discussing the order of

placement for parentless children, reduced international adoptions to a “last-resort,”

available only when the children “cannot in suitable manner be cared for in the child’s

country of origin.”55

The same Convention contradicts itself with a preamble that recognizes that every

child “should grow up in a family environment, in an atmosphere of happiness, love and

understanding,”56 but the after provisions give the option of recognizing institutional care

over international adoptions. The CRC failed to indicate what specific type of alternative

care is preferable; hence, every country is left to their own interpretation if international

adoptions or institutional care is preferable57. This is extremely prejudicial to the children

since it decreases significantly their opportunity to have a family by not granting

international adoption its deserved importance.

The CRC was a consistent step back in recognizing the right to a family as a basic

children’s right, and most of all, that the core principle of “best interest of the child” is

53 CRC, supra n.6, at preamble 54 Id. at art. 21 (e) 55 Id. 56 Id. at preamble 57 McKinney, supra n.27, at p. 382

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not being truly respected. Because it is in the best interest of any child in the world, in

any color, race, age, tribe, and continent, grow up in a nurturing family.58

In total 193 countries ratified the CRC,59 but the U.S. did not ratify it and it is

unlikely to do so in the future. While the reasons for the U.S non ratification of the CRC

are not still very clear, the “CRC’s ambiguous stance towards international adoptions,

along with concern that the practice of international adoption was difficult to coordinate

and susceptible to abuses, led to the development of the Hague Convention in the spring

of 1993.60”

The Hague Convention entered in force in May, 1995, and was initially ratified or

acceded to by 71 countries.61 Article One states its three main objectives, as follows:

Article 1

The objects of the present Convention are:

a) to establish safeguards to ensure that intercountry adoptions take

place in the best interests of the child and with respect for his or her

fundamental rights as recognized in international law;

b) to establish a system of co-operation amongst Contracting States to

ensure that those safeguards are respected and thereby prevent the

abduction, the sale of, or traffic in children;

c) to secure the recognition in Contracting States of adoptions made in

accordance with the Convention62 58 Bartholet. Supra at.,27 at p. 15 59 http://unchildrights.blogspot.com/2011/01/chronological-order-ratifications-crc.html 60 McKinney, supra n. 27, at p. 384 61 Hague Convention, supra n.7, at “HCCH members”

http://www.hcch.net/index_en.php?act=states.listing

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In the matter of granting the children the fundamental right to grow in a family,

the Hague Convention took the same initial position of the CRC. Already in the

preamble, it recognized “that the child, for the full and harmonious development of his or

her personality, should grow up in a family environment, in an atmosphere of happiness,

love and understanding,”63 but different from the CRC, it also stated that “intercountry

adoption may offer the advantage of a permanent family to a child for whom a suitable

family cannot be found in his or her State of origin.”64

In this matter, the Hague Convention was a step towards the recognition on the

importance of international adoptions, “because it formally and explicitly acknowledges

that children do best when raised in permanent, private families and because it commits

nations to substantive and procedural standards that will facilitate international

adoptions,”65 in order to allow a bigger number of children to have a chance to grow in a

family.

Hence, in the order of preferable placement for parentless children, the Hague

Convention prioritizes international adoptions over institutional care, observing the

principle of the “best interest of the child”. Domestic adoptions continued to be

recognized as the first option on the order of placement. The focus of this chapter is the

right to grow in a family, but some other implications of the Hague Convention will be

discussed further on other Chapters.

62 Id., at art. 1 63 Id at preamble 64 Id. 65 Lynn D. Wardle, Parentlessness: Adoption Problems, Paradigms, Policies, and Parameters, 4

Whittier J. Child & Fam. Advoc. 323, 350-351 (2005), at 358.

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In conclusion, the recognition of the fundamental right of the children to grow in

a family is still in construction. The medical community largely demonstrated the

medical impact that neglected children suffer when not in family.66 Over these years, it

has been shown to violate the physical and emotional integrity of children, who when

they are denied the opportunity to develop the affective bond with a permanent family,

biological or adoptive.67

The laws and conventions on the subject seem to recognize this fundamental

right, but in practice their policies on protecting this right are still weak. The right to a

family should be recognized and enforced, as a basic and essential condition necessary

for the healthy development of any child. Children must grow in a family, because

children must be loved and cared for. Children must feel safe enough to dream and

prepared enough to fight for those dreams:

When love creates the kind of conservatory where the share of human

capabilities each person is endowed with a fair chance of flourishing.

This is the developmental role of love. It is in the experience of

profound and unconditional love that young ordinarily find the terra

firma that assures them of their place in the world, and where their own

sense of limitation and vulnerability is transmuted into self-confidence

and an appetite for the future as an inviting frontier of open

possibilities68

2. International Adoptions Protecting Fundamental Human Rights 66 Bucharest Early Intervention Project. Publications. Supra n. 34 67 Id. 68 Barrozo, supra at. 35

22

“These children might survive but they are deprived of a connection that will shape the very core of what they become. Our physical and emotional well being is formed and grows from moments of early bonding with the parents, for some children this connection is with an adoptive family” Stuck documentary, 201369

A. Pathway to Hostility and Decline: Worldwide Crises

The institution of international adoption first arose as an opportunity for the

victims of World War II when the United States enacted the Displaced Persons Act in

194870. Since its inception, the practice has grown, especially in the U.S, which is

affirmed as the country that receives the greatest number of international adoptees.71

Since then international adoptions have gradually developed worldwide, and

regulations have been enacted in the each country, and internationally. The most

significant were the Convention on the Rights of the Child (CRC)72 and the Hague

Convention on Protection of the Children and Co-operation in Respect of Inter Country

Adoption (Hague Convention)73, adopted by 193 countries74 and 75 countries75

respectively, as mentioned in the last chapter.

The number of foreign children adopted by the U.S. increased significantly in the

last 20 years, going from 8,012 adopted on 1989 to 22,991 in 200476. This number is still

very small compared to the number of children living in institutions or on the streets

69 Stuck. Supra n. 24 70 Pub. L. No. 80-774, § 1, 62 Stat. 1009 (1948) 71 Bartholet, Elizabeth. Propriety, Prospects and Pragmatics. 13 J. Am. Acad. Matrimonial

Law. 181 1995-1996. At p. 195 72 http://www.ohchr.org/en/professionalinterest/pages/crc.aspx 73 http://www.hcch.net/index_en.php?act=conventions.text&cid=69 74 http://unchildrights.blogspot.com/2011/01/chronological-order-ratifications-crc.html 75 http://www.hcch.net/index_en.php?act=states.listing 76 U.S Dept. of State, Intercountry Adoptions: Statistics,

http://adoption.state.gov/about_us/statistics.php

23

around the world; nevertheless it is certainly significant if one consider the results

individually. In only in one year more than 22 thousand children, who would not have

any chance in life, were inserted in a family and now have the opportunity to develop and

thrive.

The increase in number of international adoptions in the world and the release of

some reports regarding human trafficking and baby buying lead to the elaboration of the

Hague Convention in 1993. It was mentioned in the last chapter that the Hague

Convention had the purpose of regulating the proceedings and establishing safeguards for

receiving countries and sending countries in international adoptions in order to insure

they will happen in “the best interest of the child.”77

Despite the good purpose and intentions of the Hague Convention, the result

ended up being quite the opposite. The number of international adoptions within the U.S.

has plunged by 69% since 2004, leaving more than 75,000 children that could have a

family forgotten in institutions around the world during these nine years of decline78. The

impact of this number is felt by the most vulnerable people in all developing countries

around the world that once had an international adoption programs with the U.S. Those

are the innocent, parentless children of several developing countries.

The implications of the Hague Convention center on the fact that it set up very

strict rules, which were necessary to ensure security of the proceedings. But countries

struggled for many years to put all the requirements into practice. For instance the U.S.

77 Kimbali, Caeli Elizabeth. Barriers to the Successful Implementation of the Hague Convention

on Protection of Children and Co-Operation in Respect of Intercountry Adoptions. 33 Denv. J.

Int’l L. & Pol’y 561 2004-2005 at p. 563 78 https://bothendsburning.org/seventy-five-thousand-children-and-counting/

24

took eight years to write the legislation to implement the Hague Convention, and some

developing countries have not yet accomplished that79. These difficulties were not only

felt by the governments involved, but also the organizations. Adoption agencies had to go

through a strict proceeding for Hague accreditation with the newly created Central

Authority, and had to provide endless requirements and documents. For some

organizations, that was the end. They could not afford complying with these costly

proceedings and still support the extreme financial hardship caused by the decrease in the

number of adoptions80.

In 2008 after realizing the decline of the numbers of international adoptions for

three consequent years in the U.S., and after the implementation of the Hague Treaty in

April 200881, the Human Rights Center of the American Bar Association (ABA) released

the report n. 10282, analyzing all aspects of international adoptions and the

implementation of Hague in a Human Rights perspective:

Several important facts and conclusions were stated in Report n. 102 of the ABA.

First, it recognized that international adoptions have “developed important recognition as

a method of serving the needs of children without homes,”83 and that adoption in general,

domestic or international, “serves children’s interests far better than foster care or

institutionalization.”84 It continued by stating the reasons for this affirmation and citing

79 Stuck. Supra n. 59 80 Kimbali. Supra n. 66. At. p. 573 81 U.S. Department of State. http://adoption.state.gov/hague_convention/overview.php 82 American Bar Association, Center for Human Rights. Report n.102 (2008).

http://www.americanbar.org/content/dam/aba/migrated/International_Adoption_1.authc

heckdam.pdf 83 Id. at p. 2 84 Id.

25

the medical studies and research about children’s development and the devastating results

in neglected children.85

Then the report brought up the Hague Convention, stating its purpose, and that

“international adoption should be preferred to any in-country placement except for family

preservation and in-country adoption.”86 Next, the ABA’s report cited the crisis of

international adoptions at that time, and stated that the proceedings of international

adoption were often “costly and burdensome.”87 The report continued affirming that the

ABA supports legislations to make the proceedings “more timely, less costly, and less

burdensome”88. Referring to the downfall of the numbers and the imminent crises, it was

stated:

Despite the obvious benefits of international adoption and the Hague

Convention, it is at a crisis moment now, with the numbers of such

adoptions into the U.S. down these last three years in contrast to the

steady growth over the previous six decades. Romania is one nation that

essentially closed down international adoption. Guatemala has recently

closed down international adoption, pending development of a new

regulatory regime. China has recently passed restrictions, which limit

significantly the parents considered eligible for adopting. Yet the needs

of children without homes in these countries and worldwide for the

85 Id. at p. 3 86 Id. 87 Id. 88 Id.

26

nurturing homes that international adoption provides have not

diminished89

Subsequently, the report asserts that the proceedings must be safe enough to

prevent abuses, such as surrender of parental rights in exchange for money and any other

violations of laws. It further stated that because of these abuses some countries have

decided to close doors on international adoptions90. Another argument to justify a

hostility to international adoptions by some countries is the position that the child should

have the right to preserve his culture, although it is clear that “foster care simply does not

exist to a significant degree in the sending countries of the world”91.

Several reasons can be cited for why domestic adoption and foster care is not

available enough in developing countries. The main ones are poverty, and lack of stable

political and economic conditions, leading to the number of children in need being

extremely high - most of them are not even in institutions, but on streets. The problem is

extremely critical, and international adoptions do provide a solution to reduce the plight

of parentless children in developing countries and increase their chance of growing up in

a family.

In the end, the ABA report n.102 fully supported international adoptions as a

legitimate option for parentless children in need, as follows:

International Adoption now serves some 40,000 children per year. This

Resolution proposes that international adoption should be an integral

89 Id. 90 Id. at p. 4 91 Id.

27

part of a comprehensive strategy to address the problems of children

without permanent homes. The Hague Convention indicates that

international adoption should be seen as preferable to all in-country

alternatives except for adoption. This Resolution emphasizes the

importance of prompt, lawful and ethical adoptive placement and

rejects mandated holding periods that would require delay in

international adoptive placement and place those children at severe and

unnecessary risk92.

Despite the publication of this strong report supporting international adoptions in

a Human Rights perspective, since 2008 the numbers of foreign children adopted in the

U.S has continued to decrease. The current crisis of international adoptions is a serious

human right violation to the right of family of many children in the world. They are being

denied the opportunity to have a family because of factors that they cannot control.

This problem requires immediate action.

B. Syllogism

After all the information in the Chapters above, one can reach a loud and clear

conclusion, organized as a syllogism93 below:

Premises:

92 Id. 93 Definition by http://grammar.about.com/ “Syllogism: In logic, a form of deductive

reasoning consisting of a major premise, a minor premise, and a conclusion”.

28

1. All children’s mental and physical health is severely impacted when they are deprived

of nurturing parenting relationships, as observed in cases of neglect in institutionalization

or in street life (Chapter 1.A),

2. All children have the fundamental right to grow in a permanent family, which is

preferable over all other temporary care available (Chapter 1.B),

3. The Hague Convention states that domestic adoptions are preferable to international

adoptions (Chapter 1.B), and

4. Foster care and domestic adoptions do not meet the needs of all the children in need of

a permanent home (Chapter 2.A)

Conclusion:

Therefore,

1. International adoption increases significantly the opportunities for parentless children

to have a permanent family, and protects the fundamental human and children right to

grow in a family.

III. The Future of International Adoptions

A. The hostility to International Adoptions Must Stop: Necessary Reforms in a Rule

of Law Perspective

“Over the last half-century, international adoption has been a pathway to a family for thousands of children. But factors like greed, ideology, religion, and politics have

29

corrupted the system and governments around the world are closing doors to these adoptions” Stuck Documentary94

Given the importance of international adoptions in protecting basic human rights,

the hostility that has been granted to it must stop. The system was corrupt because of

factors exposed above, but since the first signs of corruption appeared, there was also a

large effort of authorities and organizations that are sensitive to the cause to solve these

problems. The Hague Convention promotes very important ideas to ensure security of the

proceedings between states, and international adoptions, which suffered the impacts of

lack of regulations in the past. They should no longer have this problem. The Hague

Convention regulated international adoptions in the “best interest of the child” and in an

effort to terminate corrupted practices, in order to help more children to have families.95

Unfortunately, twenty years after the Hague Treaty was concluded the results are

far from satisfactory. The Hague failed to provide incentives for major sending countries

to join the treaty, and some countries have still not joined. Some of those who have

joined have had problems with the costs and proceedings for implementation.96

The U.S is a pioneer on helping other countries in the world in times of crisis.

Since the end of the WWII, when it provided assistance to then devastated Europe with

the successful Marshall plan, the U.S have acquired a leading role in providing assistance

and cooperation to developing countries. President Kennedy created the United Stated

94 Stuck. Supra n. 57 95 Kimbali. Supra n. 66. At. p. 564 96 Id.

30

Agency for International Development (“USAID”) in 1961, and since then the

opportunities for international development grew significantly.97

In every decade USAID’s priorities shifts in different areas of development

according to what are most needed at that time. In the 1970s the priorities were regarding

basic human needs, such as food, health, population planning, and education. In the

1980s, “foreign assistance foreign assistance sought to stabilize currencies and financial

systems.”98 In the 1990s the priority shifted to sustainable development, and helping

transitional countries to improve quality of life.99 In the 2000s the priority turned into the

state building and the wars in Iraq and Afghanistan.

During all these years USAID has maintained the goals for which it was created,

and continues to provide assistance to transitional countries being loyal to its mission:

USAID’s mission statement highlights two complementary and

intrinsically linked goals: ending extreme poverty and promoting the

development of resilient, democratic societies that are able to realize

their potential. We fundamentally believe that ending extreme poverty

requires enabling inclusive, sustainable growth; promoting free,

peaceful, and self-reliant societies with effective, legitimate

governments; building human capital and creating social safety nets that

reach the poorest and most vulnerable.100

97 USAID. http://www.usaid.gov/who-we-are/usaid-history 98 Id. 99 Id. 100 Id.

31

Most recently, international development reforms have also focused in

implementing the rule of law in those transitional countries. As Dr. Rachel Kleinfeld

details it, implementing rule of law in a state creates the idea of the following elements:

A. Governments are subject to laws and must follow pre-established

and legally accepted procedures to create new laws

B. Citizens are equal before the law

C. Judicial and governmental decisions are regularized: they are not

subject to the whims of individuals, or the influence of corruption

D. All citizens have access to effective and efficient dispute-solving

mechanisms, regardless of their financial means

E. Human rights are protected by law and its implementation

F. Law and order are prevalent101

Item E refers to Dr. Kleinfeld’s element for rule of law implementation about

human rights, and the necessity of those to be protected and enforced by law. In this

sense, the right to a family must be protected and implemented by specific laws in order

to create a state based on the rule of law.

Therefore, the U.S. has a leading role in implementing human rights reforms in

other countries, but its laws and policies do not reflect the right to a family as a basic

human right. It is necessary to reform within the U.S. first, and then this must be

implemented in other developing countries.

101 Kleinfeld, Rachel. Advancing the Rule of Law Abroad. Carnegie Endowment for

International Peace (2012) at p. 14-15

32

According to Dr. Kleinfeld’s lessons in rule of law development, there are four

elements that need to be improved in order to implement a rule of law reform. There are

the power structure, the culture, the institutions and the laws.102 These elements are

essential in changing perception in a country about a certain human rights violation. The

chapters above revealed that mechanisms of enforcement to the fundamental right to a

family are currently lacking in every country in the world, including the U.S. For this

reason, the U.S. should first adopt the bottom-up method of reform in its own system.103

After that the U.S. must use the diplomacy method of reform to assist other countries in

order for the fundamental human right to have a family to be effective.104

The bottom-up reform aims to “create a cultural acceptance or government

enforcement”105, by funding “civil society actors to lobby for certain laws or type of

laws.”106 U.S. policies must start to recognize the importance granted to the value of the

family, which every American citizen already possesses. This method of reform was

created considering implementation in other countries, although it perfectly reflects the

reform that the U.S. must do in order to comply with its own lessons to other countries.

After U.S. policies start to reflect the value of its own society, and the human

right to grow in a family is recognized and enforced internally, the second step is

implementing this reform in other countries by the diplomacy method. This method aims

to force a “foreign government to change or pass laws through strong-arm diplomacy.”107

102 Id. at p. 22 103 Id. at p. 150 104 Id. at. p. 151 105 Id. 106 Id. 107 Id. p. 153

33

This reform was used by the U.S. to help countries passing antiterrorism and anti-money

laundering laws.108

The main purpose of these reforms is ensuring priority in the placement of

parentless and neglected children in permanent families, by domestic or international

adoptions. There are around 18 million parentless children living in intuitions or on

institutions streets in the world,109 and the youth population of developing countries is a

growing concern. USAID estimates that 200 million children under 5 (more than 30% of

the world’s children) fail to reach their developmental potential in lower and middle

income countries.110

Foreign aid and international organizations have acquired an important role in

assisting transitional countries to develop and implement reforms in different areas in

those countries. However, the aid for children’s issues is still insignificant. USAID only

allocates an average of only $2.9 billion111 a year to service children around the world,

out of its annual budget of approximately $50 billion.112

The great importance of these reforms is recognized around the world, although

ignoring children’s issues is not a solution. Also, to think that children are being

indirectly helped by the development of other areas in the country does not solve their

problem. They cannot indirectly benefit from those reforms in other areas if they are

108 Id. 109 UNICEF and Childinfo.

http://www.ccainstitute.org/index.php?option=com_content&view=category&layout=blog

&id=25&Itemid=43 110 USAID Action Plan in Children in Adversity (2012). http://www.usaid.gov/children-in-

adversity 111 Children in Families First (2013). http://childreninfamiliesfirst.org/ 112 http://www.usaid.gov/sites/default/files/documents/1868/207305.pdf

34

developing with serious physical and emotional diseases. Children’s issues must be

specifically addressed and treated independently so they can produce real change.

B. The Bill Children in Families First

“Surveys show that significant percentages of adults in privileged countries are

interested in adopting. Some 9.9 million of ‘even married’ women in the U.S. alone have

considered adoption, and only one percent of these adopt in a given year” Elizabeth

Batholet (2010)

Organizations in the U.S. have been making strong efforts to start the bottom up

reform that this country must have in order to protect the fundamental right that every

child has to grow in a family.113 For instance, Both Ends Burning is an American based

NGO that has the mission of “defending every child’s human right to grow in a

family.”114 Its extensive work in this area has resulted in the compelling documentary

STUCK, which exposes the problem of parentless and neglected children around the

world.115

Most importantly, already advancing in the bottom up reform, the bill Children in

Family First (“CHIFF”) was proposed in the Senate number 1530 introduced on

September 19, 2013 by Senators Landrieu and Blunt, and H.R. 4143 introduced March 4,

2013 in the House by Representatives Granger and Bass.116 This bill has the purpose of:

113 https://bothendsburning.org/ 114 Id. 115 Stuck. Supra n. 57 116 Children in Families First (2013). Supra n.99

35

To realign structures and reallocate resources in the Federal

Government, in keeping with the core American belief that families are

the best protection for children and the bedrock of any society, to

bolster United States diplomacy and assistance targeted at ensuring that

every child can grow up in a permanent, safe, nurturing, and loving

family, and to strengthen intercountry adoption to the United States and

around the world and ensure that it becomes a viable and fully

developed option for providing families for children in need, and for

other purposes.117

The main proposals of the bill is to change the current scenario redirecting US

government resources to strengthen adoption, reinvigorate international adoption as a

protection for children, and realign foreign aid to put children’s issues in the right

place.118 The proposed legislation has three main focal points to achieve its goals. They

are:

1. Creation of the “Bureau of vulnerable children & family security” in the

Department of State, that will become the diplomatic and foreign policy center

for international child welfare. The adoption division will move from the Bureau

of Consular Affairs to this new stronger Bureau, which will be in the Human

Rights secretariat. This new Bureau would focus on implementing effective child

welfare systems, with special attention to family preservation and reunification

117 Id. at preambule 118 Id. at key points

36

with kinship, domestic and international adoptions. This new Bureau will remain

the designated Central Authority on international adoptions’, however, it won’t

be involved in the casework, except for immigrant visa processing. This will

make the proceedings faster and less burdensome

2. Simplification of the proceedings by consolidating the processing of all

international adoption cases with the USCIS (but for the immigrant visa

processing, which remains in State),

3. Establishment of a Center of Excellence with USAID for implementing the 2012

National Plan on Children in Adversity, providing necessary authority and

oversight resources to implement programs for the USAID Senor Coordinator for

Children Adversity119

The legislation promotes reforms in the U.S. with a worldwide impact. Being the

leading country in international development and also the greatest receiver of

international adoptions, the U.S. possesses the most essential position to improve child

welfare in the world. USAID is the first and leading agency in the area, and upon

publishing the Action Plan in Children in Adversity (“APCA”) in 2012, showed that child

welfare is a current and growing concern.

The USAID’s APCA is the first ever U.S government plan that builds a strategic

assistance specifically for neglected children. It represents the work of seven federal

agencies, and is “grounded in science that tells us that a promising future belongs to those

119 Id. at one pager

37

nations that investment wisely in children”120. The plan aims to implement actions and

measure the results to help children “affected by HIV/AIDS, in disasters, or who are

orphans, trafficked, exploited for child labor, recruited as soldiers, neglected, or in other

vulnerable states”121, and those actions will focus on the results “to ensure that children

ages 0-18 not only survive, but thrive.”122 The three principal objectives of the APCA

are:

1. Build Strong Beginnings: Increase percentage of children

surviving and reaching full developmental potential.

2. Put Family Care First: Reduce percentage of children living

outside of family care.

3. Protect Children: Reduce percentage of girls and boys exposed to

violence and exploitation.123

This unprecedented plan for assistance focused on children in adversity was

motivated by the brain development studies mentioned on Chapter 1.A, which alerted the

world to this imminent and growing problem. The bill CHIFF would increase the efforts

and change the structure of the government to better attend to the demands of these

children. It is currently pending mark-up in the Senate Foreign Relations Committee, and

House Foreign Affairs and Judiciary Committees.124

120 USAID Action Plan in Children in Adversity (2012). Supra n. 98 121 Id. 122 Id. 123 Id. 124 Children in Families First (2013). At one pager

38

IV. Comparative Analysis of Countries in the Matter of International Adoptions

A. United States of America and Worldwide Impact

The U.S has an essential position in international adoptions in the globe because it

is the major receiving country.125 Not only is it the leader in international adoptions, but

the U.S adopts more children than the rest of the world combined.126 Therefore, on its

own, U.S. policies and internal laws directly affect the chance of parentless children have

to grow in a family.

Specifically in international adoptions, the U.S implemented the Hague Treaty by the

Intercountry Adoption Act of 2000 (“IAA”)127, which has three main purposes:

1. to implement the Hague Convention in the United States;

2. to protect the rights and prevent the abuses against children, birth

families, and adoptive parents involved in adoptions subject to the

Hague Convention, ensuring the adoptions are in the children’s best

interests;

3. to improve the federal government’s ability to assist U.S. families

seeking to adopt children from countries party to the Hague

Convention128

The U.S. appointed the Department of State’s Bureau of Consular Affairs, Office

of Children Issues, as the central authority to be in charge of international adoptions and

125 Bartholet, Elizabeth. Propriety, Prospects and Pragmatics. 13 J. Am. Acad. Matrimonial

Law. 181 1995-1996. At p. 195 126 Pertman, Adam. Adoption Nation. Houghton Mifflin Harcourt (2001) 127 Intercountry Adoption Act of 2000, Pub.L. 106-279, Stat. 682, 2000 H.R. 2909 128 Kimbali. Supra n. 66. At. p. 574

39

all the related issues, in respect of to Hague Convention requirements. This central

authority has many responsibilities including monitoring the procedures, creating a case

registry, and sending annual reports to Congress.129

One of the immediate impacts of the IAA implementation was in the situation of

agencies providing adoption services in the U.S. This legislation created several

requirements and safeguards for these agencies, which must seek accreditation from the

newly designated central authority. The process involves strict requirements such as

proving to have a number of trained and qualified employees, and social services

professionals, and having sufficient financial resources, organizational structure, and

liability insurance.130 The process for accreditation is very burdensome and costly for

those agencies, involving the preparation of an enormous dossier of documents, and a

great number of agencies were not able to accomplish this task.

The new requirements for adoptions agencies imposed by the Hague Convention

increased operations cost for agencies, which limited the availably of staff. For instance,

the staff members are required to have a master’s degree in social work, and the price of

the insurance went up significantly due to the new liabilities imposed to those agencies. It

was the beginning of hard time.131

In the next three years after enactment of IAA, in 2001, 2002, 2003 and 2004, the

numbers of international adoptions rose from 18,857 in 2000 to 22,991 in 2004, which

129 Id at. 575 130 Id. 131 Id. at 577

40

was a good result. However, after 2004 the number has plummeted by 69%, dropping to

7,094 in 2013.132

The U.S. implemented the Hague Convention, but its initial purpose of

strengthening international adoptions is failing. These numbers reflects the crisis exposed

in Chapter II.A, and the current situation of adoptions in the U.S., and consequently in the

world. Despite the number of adoptions, the number of parentless, neglected children in

institutions has only grown. The situation is critical and demands solutions.

B. Brazil

The Hague Convention entered in force in Brazil in 1999 with the enactment of

Decree n. 3.087, which created all the guidelines and set the requirements for

international adoptions in Brazilian territory.133 The decree n. 3.714 was enacted also in

1999, and created the Central Authority for international adoptions, which is in the

Secretariat of Human Rights. Also all the 27 states were designated to have state

commissions that would process the adoptions under the supervision of the Central

Authority.134

The Brazilian child and adolescent code states that institutional care must be a last

resort for children, and that those institutions must reproduce the way to be the most

similar to a home for the children135, but in practice this is not what happens. The

protection granted by Brazilian laws and statues reflects the desire to take the best

132 U.S. Department of State, Bureau of Consular Affairs. Supra n. 6 133 Decree n. 3.087 (Brazil) http://www.planalto.gov.br/ccivil_03/decreto/D3087.htm 134 Decree n. 3.714 (Brazil) http://www.planalto.gov.br/ccivil_03/decreto/D3174.htm 135 Child and Adolescent Code (Brasil) at. article 19

http://www.planalto.gov.br/ccivil_03/leis/l8069.htm

41

possible care of parentless children136, but no law can provide the most fundamental

element to these children, the family affection.

The Brazilian child and adolescent code also states that international adoption

should take place only when the government has exhausted all methods to find Brazilian

families to adopt the children.137 This requirement leads Brazilian judges to deny

international adoptions until the children are older and have lived for many years in

institutions.

It is estimated by São Paulo’s Adoption Foundation that more than 200,000

children and youth are living in Brazilian institutions, but the number of neglected

children is much bigger than that. In Brazil there is a very serious problem of street

children who are living in communities, but with no specific care or attention. There is no

accurate estimation of how many street children are currently living in Brazil, but the

media mentions that the number is approximating 25 thousand.138

There is a large number of children in need, and the Brazilian government had

successfully incorporated the Hague Convention with excellence. All the public bodies

and mechanisms are currently functioning with well-trained civil servants ready to attend

the demand. Despite these facts, the numbers of international adoptions in Brazil are still

insignificant.

According to the statistics published by the Brazilian Central Authority, 2004 was

also the year that most Brazilian children, 475 were adopted internationally. The number

136 Id. 137 Id. at article 51 138 http://www.dn.pt/inicio/globo/interior.aspx?content_id=1792173&seccao=CPLP

42

of adoptions each years varies a small amount. The lowest was 313 children in 2010.139

These statistics are insignificant if you compare the great number of Brazilian children

and youth that are in need of a family.

There are two main reasons for international adoption not to be significant in

Brazil yet. One is the lack of will of the Brazilian judges to admit young children to

international adoption due to the requirement of exhausting all possible options of

placement with a Brazilian family. For this reason, only children with emotional or

physical disabilities, siblings groups, or in a much older age are on the list for

international adoptions.140 The second reason is there are no American agencies that are

currently authorized to work in Brazil, and since U.S. is the country that adopts the most

in the world, Brazil is missing the opportunity to find families for a great number of

children.141

In earlier years, Brazilian government policies revealed lack of political will to

stimulate international adoptions in its territory, despite adopting the Hague Convention.

One example is banning U.S agencies from working in Brazil. However, this is slowing

changing. The Secretariat of Human Rights is demonstrating to be vigilant to the

problems and careful enough to take measures to protect the rights of the children in

need.142

139 Central Authority (Brazil). http://www.sdh.gov.br/assuntos/adocao-e-sequestro-

internacional/dados-estatisticos/estatisticas-adocao/total-adocoes-anuais.pdf 140 Judicial State Commission for Adoption (Brazil) http://www.tjmg.jus.br/portal/acoes-e-

programas/adocao-internacional-ceja-mg/ 141 BBC, report.

http://www.bbc.co.uk/portuguese/noticias/2013/03/130324_adocoes_abre_rg.shtml 142 Brazilian Adoption website (“Adoção Brasil”). http://www.adocaobrasil.com.br/

43

In April 2014, in attention to the increase on the number of older children in

Brazilian orphanages, the authorities enacted an unprecedented law authorizing

foreigners to have access and register in the national adoption list, which used to be only

for domestic adoptions. With this measure, the authorities aim to increase the chances of

the children to have a family by facilitating the process of international adoptions.143

Moreover, on April 2014 another very important regulation was enacted in Brazil.

It was the Regulatory Ordinance n. 240 published by the Secretariat of Human Rights

that established the proceedings for the accreditation of U.S based adoption agencies to

carry on international adoptions in Brazilian territory144. Before the mentioned Ordinance

was published, the process of accreditation of U.S based agencies was discretionary and

the criteria for accreditation were not written and only based on the will of the Central

Authority. Hence, the publication of the Ordinance 240 and the upcoming accreditation

of qualified U.S based agencies will increase significantly the chance of Brazilian

children’s living in orphanage to have a family.

These recently enacted regulations shows an important perception of the Brazilian

government, by the Secretariat of Human Rights and the Central Authority, which is

lacking in most of the developing countries. The right and well being of the children must

be in the forefront of any political, ideological, or economic matter. Their most

fundamental human right to grow in a family should speak louder, and gladly this is

currently happening in Brazil.

143 G1. Brazilian Report (2014) http://g1.globo.com/brasil/noticia/2014/03/cnj-autoriza-

estrangeiro-em-cadastro-para-adotar-no-brasil.html 144 Ordinance 240/SDH (2014) http://www.sdh.gov.br/assuntos/adocao-e-sequestro-

internacional/adocao-internacional/arquivos-adocao/portaria-no-240-2014-fluxo-de-

credenciamento-de-organismos-estrangeiros

44

V. Conclusion

None of the reasons exposed for the decrease of the number of

international adoptions could explain the terrible consequence of this, which is leaving

thousands of children that could have the opportunity to be in family in a hopeless life in

institutions. The lack of strict regulations when international adoptions first arose, along

with exploitations that were practiced by a minority of people involved in the process,

leaded to some abuses on international adoptions in the past. The input of the media on

these episodes reflected in the society and on the international community in an unfair

perspective, because there are much more successful international adoption cases than the

ones that, unfortunately, went wrong.

However, the lesson was learned. The intent of international adoptions is

providing a healthy family environment to parentless children that would not have this

chance otherwise. There are not enough opportunities of family placement in some

developing countries to meet the need of all children living in orphanages. Therefore, an

international adoption is a legitimate and much needed option to protect the basic human

rights of these children. Neglected children must not be left forgotten in institutions.

The Hague Convention was enacted on 1993 with the purpose of standardize strict

guidelines between countries to ensure security to the process of international adoptions.

To those countries that ratified this Convention, the implementation process was long,

burdensome and costly all the parts involved, government authorities, providers of

adoptions services, and to the families involved in international adoptions process. But

45

now it is time to move on to the next step, and use the Hague Convention to benefit the

children, which was its first intent.

In total, 73 countries have ratified the Convention and most of them have built an

internal structure to comply with the regulations and perform international adoptions in

the best interest of the child. Therefore, some of those countries are still lacking political

will in recognizing international adoptions as a necessary measure to protect their

children. The policies of those countries must change to comply with their regulations,

and give to their children an equal opportunity to have a family.

According to the material and studies presented in this paper, it is clear that a new

era of international adoption is about to burst. And international adoptions gained

maturity and secure guidelines to guarantee the best interest of the child. Brazil is

currently is the best example of all sending countries on how to use the Hague to

effectively protect their children, and demonstrates a political will that other countries

developing must follow. The human rights of their children must be the forefront of

politics, ideology, economic, and religious policies.

Whoever has the opportunity of visiting an orphanage may never forget. The

extreme emotional need and desire of those children to be loved, and cared is visible in

their eyes and loudly implored on their words. Their voices must not be left forgotten,

every child deserves to grow in family environment.