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 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.
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.