A Compilation of International Adoption Laws
CHAPTER 1: INTRODUCTION
This chapter aims to introduce the rights and the set of guiding principles of the United Nations Convention on the Rights of the Child (UNCRC) which international governments have acceded to. A child is defined by the convention as a person below the age of 18. This convention encompasses the complete range of international human rights that can be covered with respect to a child.
A: GUIDING PRINCIPLES & RIGHTS
1. Non-Discrimination (Article 2): The Convention applies to all children, whatever their race, religion or abilities; whatever they think or say, whatever type of family they come from. No child should be treated unfairly on any basis.
2. Best interests of the child (Article 3): The best interests of children must be the primary concern in making decisions that may affect them. All adults should do what is best for children. When adults make decisions, they should think about how their decisions will affect children.
3. Right to life, survival and development (Article 6): Children have the right to live. Governments should ensure that children survive and develop healthily.
B: FOUR PROVISIONS
1. Survival and development rights5: the basic rights to life, survival and development of one’s full potential
2. Protection rights: keeping safe from harm
3. Participation rights: having an active voice
4. Human rights provisions: Children and young people have the same basic general human rights as adults and also specific rights that recognize their special needs.
C: DEFINING CHILD ADOPTION
Adoption is a process whereby a person assumes the parenting of another, usually a child, from that person’s biological or legal parent or parents, and, in so doing, permanently transfers all rights and responsibilities, along with filiation, from the biological parent or parents.
D: ROLE OF ONETrack International
The primary role of ONETrack is to place orphaned children in households of surviving relatives while ensuring that these children receive their basic rights to education and healthcare within a secure family environment. The aim of ONETrack is to ensure that these orphaned children will grow to be a member of a family and eventually become productive citizens in order to leave an impactful presence in their respective communities. The process of which ONETrack assists these orphaned children will be explained in the next chapter.
CHAPTER 2: INTERNATIONAL LEGISLATION
A: INTERNATIONAL ADOPTION LAWS
Numerous International adoption laws are in place to ensure that the welfare of the children are prioritized. The purpose of such laws are to uphold and attain the fundamental goals of advancing the rights of a child. Several of these laws are listed in the section below.
B: THE HAGUE CONVENTION OF INTERCOUNTRY ADOPTION
The Hague Convention or The 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption was concluded on 29th May 1993 amidst the rising trends of intercountry adoption after World War II. The convention was developed to ensure that the best interest of a child is safeguarded and that the respect for the child’s fundamental rights are upheld during intercountry adoptions. As of May 2013, 90 states are now members of the convention. For instance, when a U.S citizen wants to adopt a child from any of the nations, Convention rules apply.
C: OTHER RELEVANT INTERNATIONAL LEGISLATION
Inter-country Adoption Act
The Intercountry Adoption Act of 2000 was passed to provide the implementation by the United States of the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption and for other purposes.
These purposes include:
- the protection of the rights of and prevention against abuses of children birth families and adoptive parents involved in adoptions (and prospective adoptions) subject to the Convention and to ensure that such adoptions are in the children’s best interests.
- to improve the ability of the Federal Government to assist United States citizens seeking to adopt children from abroad and residents of other countries party to the Convention seeking to adopt children from the United States.
The Intercountry Adoption Universal Accreditation Act 2012 (UAA)
The Act was signed on 14th January 2013 and it took full effect on 15th July 2014. The act requires all international adoption agencies to be accredited in order for them to continue operations. This is done to align all service providers to the same standards as the federal standards in the United States.
Previously, only those child service providers that are under the countries that are party to the Hague Convention of Intercountry Adoption were required to be accredited. This created a double standard for the treatment of those adopted children and their families because agencies who are in countries that are not members of the convention are not required to be accredited and could continue providing child adoption services. However, now, under the UAA, any entity providing child adoption services to/from any country of origin requires to be accredited, even if they are not under a country that is party to the Hague Convention. This blanket accreditation assures that the child adoption service providers are in line with the ethical standards that are required by the Hague Convention.
According to the U.S. Department of State’s webpage, if entities provide the following six specific services, these entities are required to be accredited:
1. Identifying a child for adoption and arranging an adoption.
2. Securing the necessary consent to termination of parental rights and to adoption.
3. Performing a background check on a child, or a home study on prospective adoptive parent(s), and reporting on such a study.
4. Making non-judicial determinations of the best interests of a child and the appropriateness of an adoptive placement for a child.
5. Monitoring a case after a child has been placed with prospective adoptive parent(s) until final adoption; or
6. When necessary because of a disruption before final adoption, assuming custody and providing (including facilitating the provision of) childcare or any other social service pending an alternative placement.
As of 14th July 2014, if the adoption service providers are not accredited, they will not be able to continue providing their services.
International Adoption Simplification Act of 2010
This Act was effective after it was signed by the President of the United States of America on 30th November 2010 and has impacted the Hague Convention in the following ways:
1) New vaccination exemption:
This Act exempts children of 10 years of age and younger who are adopted under a Hague Convention country and immigrating to the U.S from being vaccinated against certain diseases. This used to be a requirement for receiving an immigrant visa in the U.S. However, with this exemption being granted, new families and adopted children can avoid waiting longer than necessary for the completion of vaccinations.
2) Older sibling adoption age exemption:
An oversight of the Hague Convention is that it prevents the adoption of older children from Hague countries whose siblings had already been adopted. This Act resolves this issue by allowing the adoption of older children when a younger sibling is being adopted on the condition that the older child is over the age of 16 but under the age of 18.
3) Grandfathering provision for older sibling adoptions:
This provision is related to the previous one which provides an exception for older siblings who have turned 18 after 1st April 2008 to be adopted. Therefore, children who originate from a country who is a member of the Hague Convention and who are over the age of 18 may be adopted if they are deemed eligible to be classified as a Convention adoptee.
Child Citizenship Act of 2000 (CCA)
The CCA was signed on 30th October 2000 and came into effect on the 27th February 2001. According to the U.S. Department of State, the purpose of the Act is to allow a child born outside of the United States of America to automatically become a citizen of the US when all of the following conditions of the child have been met:
-At least one of the child’s parents is a U.S. citizen by birth or naturalization;
– The child is under 18 years of age;
-The child is residing in or has resided in the United States in the legal and physical custody of the U.S. citizen parent pursuant to a lawful admission for permanent residence.
However, in order for the child to be considered for a U.S. citizenship, the child would need to have satisfied the requirements applicable to adopted children under the section 101(b)(1) of the Immigration and Nationality Act.
Also, children who have at least one U.S. citizen parent but who are not residing in the United States may not automatically obtain the US citizenship. The child’s parents must instead apply for the citizenship on behalf of the child. For further details and conditions that a child (whether adopted or not) who is residing outside of the US needs to meet, please visit the official website of the Department of Homeland Security.
United Nations Convention on the Reduction of Statelessness (1961)
The Convention on the Reduction of Statelessness (1961) was enacted to address the occurrence of statelessness and complements the 1954 Convention relating to the Status of Stateless Persons. The Convention gives effect to article 15 of the Universal Declaration of Human Rights which recognizes that “everyone has the right to a nationality.” This Convention was adopted on the 30th August 1961 and was effective on the 13th December 1975. As of today, there are five countries who are signatories of this Convention and 70 countries who are party of it.
Paragraph 1 of Article 5 of the Convention states that:
“If the law of a Contracting State entails loss of nationality as a consequence of any change in the personal status of a person such as marriage, termination of marriage, legitimation, recognition or adoption, such loss shall be conditional upon possession or acquisition of another nationality.”
Convention on Jurisdiction, Applicable Law, and Recognition of decrees relating to adoptions (1965)
This Convention was drafted to establish provisions on jurisdiction, applicable law and recognition of decrees relating to adoption. The Convention lays down the basic principles to ensure the interest of the child to be prioritized. This is stated in Article 6 of this Convention:
The authorities referred to in the first paragraph of Article 3 shall not grant an adoption unless it will be in the interest of the child. Before granting an adoption they shall carry out, through the agency of the appropriate local authorities, a thorough inquiry relating to the adopter or adopters, the child and his family. As far as possible, this inquiry shall be carried out in cooperation with public or private organizations qualified in the field of inter-country adoptions and the help of social workers having special training or having particular experience concerning the problems of adoption.
The unique feature of this Convention is that it addresses the habitual residence and nationality that is required of the adopters. It also provides the guidelines on the authorities responsible for the various aspects of the adoption procedures.
United Nations Declaration on Social and Legal Principles relating to the Protection and Welfare of Children
This Convention was adopted by the General Assembly on the 3rd December 1986 and was drafted for the “Conscious of the need to proclaim universal principles to be taken into account in cases where procedures are instituted relating to foster placement or adoption of a child, either nationally or internationally.”
As stated in Article 4:
“When care by the child’s own parents is unavailable or inappropriate, care by relatives of the child’s parents, by another substitute – foster or adoptive – family or, if necessary, by an appropriate institution should be considered”.
United Nations Optional Protocol to the Convention on the Rights of the Child
There are three Optional Protocols that are relevant to the adoption of children:
– Optional Protocol to the Convention on the Rights of the Child on the involvement
of children in armed conflict.
-Optional Protocols to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography
-Optional Protocol to the Convention against torture and other cruel, inhuman or degrading treatment or punishment
CHAPTER 3: TRENDS IN CHILD ADOPTION
A: INTERNATIONAL TRENDS IN CHILD ADOPTION
The rate of Intercountry adoption slowly picked up speed after the end of World War II up until the 1970s before increasing significantly. From the 1980s, about 20,000 intercountry adoptions took place annually but rose to 32,000 annually by the end of the 1990s and finally, increasing to 40,000 annually in 2005.
This prompted international legislation to be drawn up to address the rights of the children being adopted and the adopters. Intercountry adoption increased up to the mid 2000s but decreased subsequently between 2004-2014. In 2014, 24 of the major countries who are adopters reflected a 70 percent fall in the number of adoptees over a 10 year period. This decrease has continued on in 2015. For instance, the number of children adopted in the US fell from 23,000 in 2004 to 5,000 in 2015.
There are numerous reasons that can account for this overall decrease in intercountry adoption levels. These factors include the following:
Post-adoption reports are filed by parents to be submitted to the adoption agencies in the country of origin in order to assess the child’s well-being. Such reports may be a requirement of certain countries to also allow these countries to measure the rate of success of the adoption program and most importantly, follows up with the progress of the children i.e. the children are in their agreed adopted home or if any changes were made. Failure of the adopters to produce such reports would contribute to a country’s decision to continue engaging with the receiving country in the future. For instance, the National Adoption Center (NAC) of Ukraine suspended adoptions from U.S. citizens in 2005 due to non-compliance of post-placement reports which are a requirement of Ukrainian Law.
Unregulated Custody Transfer (UCT):
This practice, also known as ‘rehoming’, refers to the transfer of an adopted child to another family or individual while intentionally circumventing legal processes or safeguards. An investigation by Reuters that was conducted in 2013 uncovers the extent of UCT in the U.S. The investigation observed how adopters have utilized the Internet, social media platforms in particular, to advertise children whom they have already adopted but are no longer willing to raise. A total of 261 children were discovered to be advertised on sites such as Adopting-from-Disruption and Way Stations of Love. There is a possibility that adoptive parents who do move their adopted children to another home, legally or illegally, would not have submitted a post-adoption report. Such correlations imply that initiatives should be taken to improve post-adoption services and ‘adoption competence’. For instance, improving adoptive parent training and establishing a reporting system for UCT cases.
Adoption Service Provider (ASP) Conduct:
There have been concerns of the conduct of ASPs due to the unethical or illegal practices that are being carried out by them. Such practices perpetuates a negative experience with the ASPs in the sending country which can impact the confidence in other ASPs in the sending country. The underutilization of methods or efforts to address these misconducts may also be a contributing factor. For instance, the American government has imposed a suspension of adoptions from Ethiopia in May 2017 pending an official statement on the suspension or the future of intercountry adoption from Ethiopia.
It was reported by the State Department of the United States of America that when intercountry adoption was at its peak in 2004, Americans adopted 22,991 international children. However, it was observed that the number of intercountry adoptions fell to 9,319 in 2011 after the implementation of The Hague Convention. This could be due to the stringent requirements erected under The Hague Convention. For instance, the convention requires more documents to be filed to provide a ‘paper trail’ that allows the legal adoption process to be recorded. E.g. birth certificates, court decrees. However, these legal documents are largely absent in developing countries, making the establishment of adoption processes difficult. It is also stated under Article 4(b) of The Hague Convention, that after the local government has “determined, after possibilities for placement of the child within the State of origin have been given due consideration, that an intercountry adoption is in the child’s best interests”. This could potentially lead to negative effects of sustained institutionalisation and result in the children being adopted at a later age. This may result in a reduction of their chances of being adopted because parents may prefer children who are younger.
There are arguments given against intercountry adoption because it can be a guise used for child trafficking. It is also known as ‘child laundering’ which is a method used to obtain children through apparently legal channels. Children are taken from their homes where they are sold to wealthy families in the West where sending families have no way of contacting their children to ensure if they have reached the receiving families safely. Such corrupt practices have resulted in countries like Romania from banning intercountry adoptions in 2005 because the system was found to be exploited by child trafficking syndicates.
B: CHILD ADOPTION TRENDS IN AFRICA
African states are typically seen to be sending countries. However, as seen in Figure 2 above, the number of African children adopted has accounted for as little as 6% of international adoptions in 2003, but rose steadily over the years and has accounted for 28% of international adoptions in 2013. The increase in the share of intercountry adoptions in Africa is a contrast to the decline in the number of intercountry adoptions that is being observed in the West. Numerous reasons can be given for this rise which includes the increasing trend of celebrities adopting African children. Most notably, two children from Ethiopia were adopted by Angelina Jolie.
A breakdown of the number of intercountry adoptions occurring within the different African states shows that a majority of the African children being adopted by other countries originate from Ethiopia.
As with the general decline in the global intercountry adoptions from 2004 to 2015, the number of children being adopted from Ethiopia has also been witnessing this decline. This can be seen in Figure 3, where Ethiopia has been the largest African country of origin thus far, has witnessed a decrease from 69.48 % to 46.78 % from 2010 to 2013, respectively. There is instead a reverse in trend seen in other African states like the Democratic Republic of Congo where the number of children being adopted is starting to take up a greater share of the total number of African children being adopted abroad. This can be seen in Figure 3, where the number of children being adopted in 2010 from the Democratic Republic of Congo used to make up 3% of the total number of African children being adopted, but has increased by more than 4 times to about 13% in 2013.
CHAPTER 4: PROGRAMS OFFERED BY ONETrack
ONETrack International (via her Central African project, CameroonONE) was the first organization in Cameroon placing orphaned children in the household of surviving relatives, while ensuring that they receive an education and proper healthcare within a secure family environment in order to bring hope and opportunity to a large population of the country’s orphans. ONETrack is now an international project focused on applying the same efforts on a global scale.
The aims of ONETrack is as follows:
-Relieve the overcrowded and underfunded orphanages of children who do not belong in them and thereby reducing prolonged periods of institutionalization of orphans. This meets Article 4(b) of The Hague Convention which requires the best possible solutions to be explored in order for a child to be placed within the country of origin before considering intercountry adoption.
-Reuniting the family by placing children in the households of surviving family members.
-Ensuring the children’s educations are fulfilled and that they lead healthy lives.
A: IN-HOME SPONSORSHIP PROGRAM:
The first In-Home Child Sponsorship program in the African continent was organized to support both an orphaned child as well as his or her surviving relatives with the goal of keeping families together, while relieving the orphan communes of unnecessary cases.
How the program works:
The children in our In-Home Sponsorship program are placed in the existing households of their extended family members, who partner with ONETrack by taking on the parental responsibilities of a niece or nephew. Families do so on a conditional basis and each household receives PTA school fees, medical assistance, school supplies, uniforms, text books, shoes, as well as rice, seeds, cooking oil and other essentials of daily life, and a small family stipend. Host families that accept this responsibility do so with the full understanding that it will be conditional and made available only as certain requirements of the child’s rearing are met. These stipulations include that the child attend a decent school and maintain certain expectations in their evaluations, and that he or she is fully vaccinated and receives whatever healthcare that may be specific to their personal needs.
B: PROFILE EXAMPLES OF BENEFICIARY CHILDREN UNDER ONETrack’s CAMEROON PROJECT:
CHAPTER 5: CONCLUSION
African children are gradually taking a bigger share of the number of intercountry adoptions worldwide. As stated in The Hague Adoption Convention, governments should find the best possible solution to get the children adopted locally before considering intercountry adoption as the last resort. However, many African states have yet to adopt or ratify The Hague Convention. ONETrack promotes the convention by attempting to reduce the institutionalization of orphaned children and to instead assist them in being placed into the households of extended family members within their communities of birth.
Our efforts have been focused on implementing this progress in Cameroon, under the name CameroonONE, and we are now dedicated to replicating this model worldwide under ONETrack. We hope to establish this process as a standard approach to handling orphans before institutionalizing them and as an alternative to intercountry adoptions. This process has been effective for five years and aims to leverage our successful results to other foster care systems worldwide while adhering to the international adoption legislations that are in place.