INTERNATIONAL ADOPTION - The Good, the Bad and the Ugly; A South Pacific Perspective

WENDY GALVIN INTERNATIONAL BAR ASSOCIATION 2005 CONFERENCE
PRAGUE, CZECH REPUBLIC

24 September 2005 - 30 September 2005

BACKGROUND ISSUES

"Intercountry adoption is a strange blend of humanitarian outreach and semi-commercial exploitation on an international scale, with significant political implications."

The term "intercountry adoption" is used in the Convention on the Rights of the Child but has not been defined either in that Convention or in international law generally.

The principal international instrument dealing with this topic is the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption ("the Hague Convention") which takes into account the principles of the Convention on the Rights of the Child.

States involved with intercountry adoptions are frequently described as either "sending" states or "receiving" states. The former are often characterised by poor economic climates, political instability and poor protection of the rights of the child. Examples worldwide are India, the Philippines, Sri Lanka, Thailand, Ecuador, Paraguay, Mexico, Peru Romania, Russia China and some Pacific Island countries.

In comparison "receiving" states are predominantly characterized by good economic climate and political stability, i.e. the more affluent countries in the western world. A lack of adoptable children in these societies means a growing demand for children from the less affluent countries. Mass media impact of starving children has also influenced the growing trend of intercountry adoption. For example the publicity engendered by the Romanian situation highlighted a wider problem with national and international implications. Currently it seems to be the "vogue" for some Hollywood stars to adopt children from "poor" countries.

It cannot be overlooked, however, that with charitable reasons for intercountry adoption comes also the self-interested and self-serving reasons. There is little doubt that the demand in the industrialized world for children and the high prices people will pay for a child have led to child trafficking on a huge scale. The South Pacific has not been immune to such exploitation of children. Some states in the area have taken legislative steps to protect their children from the risks of exploitation through intecountry adoption (Fiji, for example, has legislated against children being adopted by non-Fijians) but in some countries these steps have been too little, too late.

In the 1990's the Marshall Islands had the highest per capita adoption rate in the world, largely as a result of its free association treaty with the United States which made meeting immigration requirements into the United States relatively easy. The high number of children being adopted into the United States resulted in the government issuing a moratorium on overseas adoptions in early 1999. Its effect, however, was limited as the adoption process just moved from the Marshall Islands to the United States and in 2002 the moratorium was lifted.

For the purposes of this paper it is intended to look primarily at intercountry adoption in Samoa as an example of a "sending" state and New Zealand as an example of a "receiving" state.

INTERNATIONAL ADOPTION - The Good, the Bad and the Ugly; A South Pacific Perspective

SAMOA - THE "SENDING STATE"

A Brief Outline of Customary Child Adoption Practices in Samoa

Pacific islands usually have two legal systems operating at the same time - the formal legal system inherited from their colonizers and their customary laws inherited from their ancestors.

While customary adoption is often a common feature with most indigenous people there is no formality associated with the practice and no legal severance of the relationship between the child and birth parents.

Adoption of children has always been a normal part of the Samoan way of life. Customary adoption of Fa'a Samoa is a traditional part of Samoan family custom. It is an open arrangement and western concepts of secrecy, complete break and legal fiction are irrelevant, inappropriate and offensive.

Often children may be given to other family members at their request. For example a man's family can claim the eldest born son and the parents have to abide by their wishes. As well senior members of a family can ask to be given other children and it is difficult to refuse. The following true story is given by P. Imrana Jalal in a paper to the 17th LAWASIA Biennial Conference:

"My third sister was born when I was about 7. My aunt had no daughters so she asked my parents for the baby. When my other sisters and I saw my mother crying for her baby, we went to our aunt's place and took our baby sister and brought her back home to our mother. Mother held the baby for a while, then told us to take her back to Auntie. We did this and didn't get into trouble. But we could see that Mother missed her baby and we were so sorry for her that one day we went again to Auntie's place and brought the baby back. This time Mother smacked us hard and told us we had to leave the baby with Auntie."

Customary adoption may also occur if a child is born out of wedlock as such a child in Samoan society lacks status and dignity. In Samoa a simple declaration would suffice to effect the adoption and would be fully supported by Samoan custom.


Intercountry Adoption of Samoan Children

Since at least 1962, when Samoa became independent from New Zealand administered United Nations Trusteeship, Samoan children have been legally adopted under New Zealand laws by extended family members living there. This has often been for immigration purposes as after independence Samoans were no longer able to immigrate to New Zealand as of right. For Samoa this would have been its first introduction to intercountry adoption, at least on a relatively significant scale, but such adoptions were still almost invariably within the extended family, and, therefore, acceptable as part of customary adoption practices.

Intercountry adoption of children through an international agency on the other hand is a relatively new phenomenon in Samoa. In fact the whole process of a legal adoption which severs a child's ties to his or her natural family is totally alien to the Samoan culture.

The availability of children for such adoptions in Samoa has arisen largely because of poverty, the inability for a large family to provide for all their children and the taboo of Samoan women having children out of wedlock. It has also been stimulated by the "marketing" of adoption agencies and the apparent misinformation which has been given to Samoan parents.


The Role of the Adoption Agencies

"Foreign adoption is not the solution [to poverty] but a tiny, insignificant band-aid on a huge, gaping wound, and an enormous amount of denial… International adoption has gone from the rescue of war orphans to the legal, and in many case illegal, trafficking of children. We are seeing the exploitation of poor women in undeveloped countries as they are encouraged to give up their children to fill the increasing needs of infertile couples in developed countries - which in turn fills the pockets of those who facilitate these arrangements."

Since the year 2000 United States based adoption agencies have been in existence in Samoa. The main adoption agencies are Focus on Children and Journey of the Heart. These organisations claim to be non profit and humanitarian organisations. Concerns, however, have been raised as to whether the sending of Samoan children for adoption mainly to the United States has become in fact a profitable business with allegations that these agencies collect large sums in fees from the American parents wanting to adopt children. And indeed, if there sole purpose were charitable one would have to question why they were not instead assisting these children to remain within their natural family unit.

Samoa in fact only became a favoured "source" of children for adoption after the Marshall Islands, which had been the main provider in the Pacific region of children for adoption to the United States, issued its moratorium on overseas adoptions.

While Samoa is a signatory to the Convention on the Rights of the Child, it is not a party to the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption which came into force on 1 May 1995 and until recently the formal law in Samoa did not address intercountry adoption. The result is that international adoption agencies have been able to operate in Samoa with very little regulatory intervention.

Although the adoption agencies contend that the children entering the adoption programme are through referral only the reality is that in Samoa at least they actively seek children by giving presentations in the villages on intercountry adoptions. For the most part those children who are put up for adoption with these agencies are not orphans but children who come from poor families or have been born out of wedlock or as the result of extra marital affairs.

From the outset concerns about these adoptions have been raised. Many parents claim their intention for putting their children up for adoption had been to give the children a good future that they could not afford to give them. It has also been suggested that often parents of these children have been lured into adopting their children with the promise that their children will return to them at age 18 after inheriting from their rich American adoptive parents.

Some parents have claimed that at the time they signed the documents they did not know that they were signing their children away forever and that they had no idea that adoption meant permanent separation from their children.

Other parents had mistakenly believed that their children would stay in the United States only for their education and then return to Samoa.

These beliefs can be directly attributed to the Samoan customary adoption practice where there is no secrecy involved and the child usually continues to have regular contact with his or her birth family as members of the extended family thus retaining his or her familiar and cultural ties.

The Apia District Court records in Samoa show that 76 Samoan children have been adopted and taken to the United States since 2002. These statistics, however, are not an accurate indication of the total number of children adopted and taken to the United States as sometimes the children are brought to New Zealand where the United States Consulate in Auckland is able to issue the child with an "orphan" visa. One agency alone, Focus on Children, has said that it has arranged about 100 adoptions of Samoan children.

Children who are placed for adoption with the agencies are sent to stay in what are called "Nanny" houses until their prospective American adoptive parents are sourced and come to collect them or the children are transported to New Zealand where there adoptive parents collect them and arrange visas through the United States Consulate. Local people employed by the agencies look after the children in these houses. The adoption agencies and these "Nanny" houses have operated in Samoa with little regulatory intervention from the government. Some children were withdrawn from these houses when their parents became concerned about prolonged stays (up to nine months in some cases) whilst awaiting adoption and a general concern about the children's loss of weight and general well-being.


Samoan Law

Samoan law regarding the care of children is encoded in the Infants Ordinance 1961. Although Samoa is a signatory to the convention on the rights of the child it has not become a party to the Hague Convention. Thus little protection has been afforded to children being placed for overseas adoption.

However, in April 2004 in response to increasing concerns about the number of Samoan children being adopted to overseas couples and by the number of parents who had given up their children for adoption saying that they had not been fully informed of what this meant, an Adoption Practice Direction was issued by Samoa's Senior District Court Judge, Vui Clarence Newlson to the Ministry of Justice and Courts Administration and lawyers.

The Adoption Practice Direction set out the requirements of adoption applications submitted by these adoption agencies and included:

1. A Requirement that both natural parents and children who are old enough to understand go before the Judge so that they can be asked whether they understand the requirements and conditions of the adoption such as:

a. There will be no more contact with their child;
b. That there is no requirement that the child be returned to them upon reaching a certain age.

2. The Judge to question whether money, gifts, food parcels groceries or other gifts have been received by the natural parents from the prospective adoptive parents.

3. The Judge to be able may also ask to see a home study of the prospective adoptive parents.

In spite of this Directive concerns about the practices and conduct of these intercountry adoption agencies continued to be raised. Parents who put their children up for adoption were claiming that they were still being told by the agencies that their children would return to them once they reached the age of 18 and that they could continue to be in contact with them once they had been adopted.

It took a tragedy to force the hand of the Samoan government to take stronger steps to prevent the possible exploitation of children through intercountry adoption. In June 2005 a couple who had put their four children up for adoption removed them from the "Nanny" house operated by Focus on Children as they were concerned about their health. One of the children, a 17 month old girl, died later that week in hospital. An inquest found that her death was as a result of malnutrition. She was also suffering from a skin infection and a respiratory tract infection.

As a result of this tragedy the Samoan government was finally moved to pass an amendment to the Infants Ordinance 1961 which meant that all adoption orders in the future had to be certified by the Attorney General, such certificate to confirm the following:

1. The child concerned does not have any family or suitable family or other person who are willing and able to provide for the care, support and welfare of the child.

2. That there are no other suitable arrangements available in Samoa for the care, support and welfare of the child.

Under this new law any adoption agency must now get authorisation from the Attorney General before operating in Samoa. The Attorney General must be satisfied that an applicant for authorisation is suitable, qualified and experienced, and is a fit and proper person and will obey the code of conduct which is to be established. Agency operators that fail to comply with the new requirements could face penalties that include imprisonment of up to two years.

Adoption orders that have already been granted may also be challenged by natural parents if it can be proved that they had a lack of understanding or did not give consent to the adoption of their children.

A government committee has been established to investigate intercountry adoptions in Samoa as a result of the adverse media publicity about the adoption agencies and in particular as a result of the tragic death of the young Samoan girl. The government committee will prepare a formal report to Cabinet making recommendations about its findings.

The directors and some of the employees of the Focus on Children adoption agency are unable to leave Samoa until the outcome of this investigation. Interestingly their website is still in operation and still promotes adopting a child from Samoa as an easy and relatively uncomplicated process.

While the outrage caused by the publicity given to this case has resulted finally in some critical and major changes to the law the question remains as to how many Samoan children have been taken from their parents and homeland under false promises.


Conclusion

The adoption overseas of Samoan children whether to give them a better start in life as claimed by the adoption agencies, or to relieve parents of the burden of bringing up too large a family or in return for the promise of immediate or future gain, raises questions about the rights of the children involved.

One of these rights is their right to a Samoan identity, to their language and to being "heirs" to a culture and a way of life that sustains Samoans both physically but, also more importantly, mentally and culturally.

It is one thing to have Samoan children adopted out with the extended Samoan family network, where they are still part of their extended family and culture and even if adopted out to family members overseas, have the chance still to be part of that system. But to send Samoan children as babies or at a very young age to the United States, a country that has not ratified the Hague Convention, with little or no prospect of ever coming into contact with their Samoan heritage again, is quite another matter.

Finally through pressure of adverse publicity about the adoption agencies operating in Samoa the government is looking at taking steps to protect its children from exploitation through intercountry adoptions which sever their cultural ties but whether this is too little too late remains to be seen.

INTERNATIONAL ADOPTION - The Good, the Bad and the Ugly; A South Pacific Perspective

NEW ZEALAND - THE "RECEIVING" STATE

A Brief History of the law relating to Adoption in New Zealand

Adoption was unknown in common law at the time New Zealand was colonized although the Maori like the Samoan people, practised customary adoption within the extended family. This practice created an informal and open arrangement between the child and extended family.

Although New Zealand was the first Commonwealth country to introduce a legal system of adoption of children with the Adoption of Children Act 1881 its first comprehensive adoption statute was the Adoption Act 1955. Fifty years on, this is still the law which provides the regime for the adoption of children in New Zealand.

In spite of repeated calls for reforms to the adoption law to recognise the changing social climate successive New Zealand governments have failed to implement any meaningful changes.

Although New Zealand is a party to both the Hague Convention and the United National Convention on the Rights of the Child the protection afforded to children by the Hague Convention does not cover children from non-contracting states. The majority of children involved in intercountry adoptions by New Zealand residents are from Samoa which has not acceded to the Convention and at this stage has shown little intention of doing so. Events over recent months, however, may cause the Samoan government to reconsider its position.


Extent of Intercountry Adoption in New Zealand

New Zealand has been involved with intercountry adoptions for the best part of a hundred years, initially as a receiving country for unaccompanied migrant children from Britain in the early 1900's. There was a period during the middle of last century where New Zealand became a sending country as its unwanted children exceeded the number of adoptive homes for them in New Zealand. Over the last 30 years, however, the situation has been reversed and it is estimated that New Zealanders adopt 500 to 600 children from overseas each year. Over half of these children are of Samoan origin and usually adopted by members of their extended families who are New Zealand citizens.


Intercountry Adoptions for Immigration Purposes

The majority of intercountry adoptions in New Zealand are of Samoan children whose adoptions have been frequently used to gain them immigration status in New Zealand.

The Family Court in New Zealand which determines adoption applications is not responsible for restricting immigration but it must be satisfied that the applicant for adoption does have a bona fide desire to create a parent/child relationship and that the adoption application is not merely a vehicle for entry into New Zealand.

Some Judges have been prepared to turn a blind eye to the true reason for an application and find welfare aspects in an application for adoption order to justify the making of the orders sought, while other decisions have overlooked clear welfare aspects because they believe the adoption process has been used only as a device to obtain immigration status.

In Application by Webster/Re Adoption the Family Court granted an application by a New Zealand Fijian resident to adopt his 18 year old nephew, the nephew's mother having died some years earlier. In granting the application the Court held:

(1) Although there were immigration considerations the primary purpose of the application was to establish a family relationship which could be achieved by other means.

(2) When balancing considerations of welfare against considerations of public policy the scales came down in favour of granting the application …

(3) In relation to adoption there are three policy principles to be considered: Firstly, should an adoption order be made if there are other methods available to the Court to give the child a secure and settled family situation? Secondly, in relation to adoption by relatives, because adoption extinguishes existing legal family relationships on one side and distorted relationships on the other side, then adoption should not be considered desirable unless the benefits secured by adoption cannot be met by other means. Thirdly, if adoption is purely for immigration purposes the adoption should be refused."

This case can be contrasted with an earlier decision of the Family Court, upheld on appeal by the High Court of New Zealand , where the Court refused an application by a Samoan couple to adopt three children who were the brother and sisters of the applicant wife. Although the Court found that the welfare of the children would be promoted by them remaining in New Zealand and that the making of adoption orders would not detrimentally affect the children's welfare, it disregarded those aspects in favour of upholding the immigration code.

In 1992 the New Zealand government, in order to stem what was seen as a growing number of adoptions being used as a device to secure immigration status, amended the law to provide that a child 14 years or older adopted by a New Zealand citizen will not automatically become a New Zealand citizen (section 3(2) Citizens Amendment Act 1992).

However of a total of 678 children recorded as having been adopted by New Zealand citizens in 2003-2004 by far the greatest number (459) came from Samoa. While there are no accurate statistics it can be safely assumed that the majority of these adoptions were to give the children the benefits of a New Zealand education and citizenship.


Intercountry adoption in New Zealand

In situations where intercountry adoption occurs in New Zealand there are a number of safeguards for the child. Prior to the child even arriving in New Zealand the prospective adoptive parents must have been approved for adoption by the Adoption Unit of the New Zealand Department of Child Youth and Family Services (CYFS) which will undertake character checks and counselling as well as checks to ensure the ability of the prospective adoptive parents to provide financially for the child.

CYFS also needs to be satisfied that the child is free for adoption and that such adoption would be in the child's best interests.

To meet the Department's requirements the prospective adopters must also demonstrate that they will be able to provide continuity in respect of racial, cultural and religious attachments, in other words they must show that they have the intention and capacity to foster ongoing links with the child's birth country, race and culture.

An Adoption Order will rarely be made without the approval of the Adoption Unit.


Intercountry adoption by adoption overseas in non-Convention states

No such safeguards exist in respect of adoptions which are undertaken by New Zealand citizens in the country of the child's birth. Although ratification of the Hague Convention binds the New Zealand government in relation to adoption of children from Convention countries, adoption of children from non-Convention countries is not affected.

Section 17 of the Adoption Act 1955 which provided, for the first time, specific recognition of adoptions concluded overseas was enacted in response to the concern that immigrants to New Zealand who had adopted children in their state of origin should have those adoptions recognised in New Zealand It is a purely formal test of the legal consequences of the adoption and is not a test of the quality of the adoption process from a welfare perspective It was certainly never envisaged it would cover intercountry adoptions as the term is now understood.

This provision allows for any adoption made in any place outside New Zealand to have the same effect as an adoption order made under the Act provided that the adoption is legally valid according to the law of that place and that as a result of the adoption the adoptive parents had a right superior to that of any natural parent of the adopted person in respect of the custody of the person. There is no law which prevents a New Zealander adopting an overseas child in the child's own country and nor do the New Zealand Courts have any jurisdiction in the matter.

CYFS is unlikely to have been involved in overseas adoptions in non-Convention countries unless the child's state of origin requires a report to be prepared by the Department. The protection afforded to the child who is the subject of the adoption is, therefore, completely dependent on the law of his or her state of origin. This means that there are no checks on the suitability of the adopting parents and in many cases attempts would not have been made to place the child with a family in the state of origin and, as is evidenced in the Samoan intercountry adoption, in many cases the child will not be an orphan.

This provision, therefore, may permit the recognition in New Zealand of adoptions made in states which allow:

• Abduction of children for adoption
• Adoption without consent of natural parents
• Payment for adoption
• Adoption by persons with serious criminal records
• Adoption by the very elderly or very young
• Adoption by those with serious mental incapacity
• Adoption by those with no means of financial support
• Adoption of a large number of children by the same person
• Adoption by a person with a terminal illness
• Adoption by a person with less than altruistic motives

Over the past 50 years the existence of s17 has enabled many children from other states to find stable and loving homes in New Zealand which may have been for many of them their only hope of survival.

It has, however, also allowed paedophiles and people who are otherwise unfit to be parents to bring to New Zealand children adopted in states which do not protect the rights of children. An example is that of a prominent Minister of the Church who in 1996 was convicted of sexual offending against three of his adopted children. Sixteen of his adopted children had in fact complained of sexual or physical abuse. The accused had adopted 19 children in total from overseas in groups of up to six over a five year period. All of these adoptions were recognised under the New Zealand Adoption Act. CYFS appears to have now taken the view that the Convention is the benchmark against which all intercountry adoptions should be judged and has opposed adoptions of children from non-Convention countries on the basis that such adoptions do not comply with the Convention. As a matter of law, however, Convention principles cannot regulate adoptions of children from countries which are not parties to the Convention.


Conclusion

The Hague Convention goes some way towards ensuring that children are protected from exploitation in such adoptions but because the Convention depends on bilateral obligations between the parties to it, it cannot be fully applied to adoptions involving non-Convention countries. The risk still remains for children being adopted overseas from non-Convention countries. It would be possible for New Zealand, as Sweden has done, to refuse to recognise non-Convention adoptions or to require the adoptive parent(s) to provide documentation required by the Hague Convention as a prerequisite to having the adoption recognised in New Zealand law. It has yet to take that next step and therefore there remains the very real possibility of children being adopted from overseas for less than proper motives and such adoption being recognised by the Courts here.

The merits and demerits of intercountry adoption continues to be debated with often strongly held views by proponents on both sides of the argument. Such arguments are unlikely to ever be resolved and it is submitted that it is more important to accept that as long as there is supply and demand such adoptions will continue and to focus on how to ensure the rights of the children who are the subjects of such adoptions can be protected.


Sources:

Samoa Observer Online, editions August 2004 - June 2005

J Couchman, Intercountry Adoption in New Zealand - A Child Rights Perspective Wellington, Victoria University Press (1997) VUWLR, 421

Keith C. Griffiths, Adoption, History and Practice Social and Legal 1840 - 1996

Trapski (ed) Trapski's Family Law, (Brookers, Wellington 2003) 1-431

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