Are international adoption critics really wrong?

Yesterday we learned an upcoming article of Elizabeth Bartholet is quoting a post made on Pound Pup Legacy, so we got curious about what she had to say. It turned out we had already read the article in an earlier draft, which at the time not yet contained a reference to our website.

On the one hand we am glad we are being noticed, on the other hand the article again pointed out to us the ivory tower from which Ms. Bartholet operates.

The article is called International adoption: The human rights position and is a 39 page long plea for the expansion of inter-country adoption. The most remarkable section of the article is called: Why the International Adoption Critics are Wrong, of which especially the subsection Adoption Abuses Don’t Justify Limiting International Adoption is especially mind boggling naive and devoid of any realization what inter-country adoption is like outside the legal frame work.

Let's walk through the section:

Adoption abuses exist, as in every area abuses of the legal system exist. But there is no persuasive evidence that adoption abuses are extensive. Nor is there reason to think that they would be extensive.

This very first passage already shows Ms. Bartholet doesn't consider adoption to take place as a child welfare activity, but as something part of the legal system. Formally that is not necessarily incorrect. In the end adoption passes a judge, but it ignores the fact that most of the activities in adoption have nothing to do with the legal system. The acquisition of customers, the allocation of adoptable children, the preparation and screening of prospective adopters, all of that has nothing to do with the legal system, but are part and parcel of every adoption. So the abuses that take place in inter-country adoption cannot singularly be placed as part of the abuses of the legal system in general. On top of that two wrongs do not make one right. Abuses in the legal system are not an apology for the abuses in inter-country adoption.

The aspect of persuasive evidence that adoption abuses are extensive, is of course tricky. To begin with, what is extensive? Just this week an article was published about adoption abuses in Guatemala, citing a report that shows 333 out of 672 children adopted between 1977 and 1989 were stolen. Is that extensive? Well one could argue either way, since we have never defined what extensive is. One point of view, and the one we adhere to, calls it a disgrace that 49.55% of the children were stolen. One could of course also state that 50.45% were not stolen, which reduces the discussion to whether one is a glass half full or a glass half empty kind of person. Apparently Ms. Bartholet takes the glass half full approach.

But even when there is enough evidence, as this list of cases shows, there is still the hurdle of persuasion to take. So who has to be persuaded? Ms. Bartholet? The National Council for Adoption, which gladly cites her work? Adoptive parents, who in spite of ongoing news about child trafficking in Guatemala and adoption bans in Europe, caused a huge boom in adoptions from 2003 onwards? Political leaders, who do not dare to burn their fingers on the subject in fear of losing potential constituents? The public at large that has worries about unemployment, health care issues and national security? Who exactly needs to be persuaded before adoption abuses are being considered true?

Critics claim that adoption facilitators are wrongfully taking babies by paying money to induce birth parents to surrender their children, and even by kidnapping. The sad truth is that even if there were many intermediaries capable of such crimes – and these are crimes everywhere – there is no real need to buy or kidnap children, since there are so many millions of desperate, impoverished birth parents incapable of caring for their children, and so many millions of orphaned and abandoned children.

This reasoning is a reductio ad absurdium. What Ms. Bartholet says is: because there are so many orphans in this world, child trafficking is not likely to happen and therefore it doesn't happen. The sad truth is, it does happen. So the fact that there are so many orphans does not diminish the trafficking of children.

So why is it that this ivory tower logic doesn't work in the real world? Much of that has to do with the fact that inter-country adoption is not a children's rights issue, but an industry to provide children for people that want to adopt. From that perspective it does make sense children are being trafficked despite the many orphans in this world.

There are source, at least as far back as 1883, claiming: the demand for adoptable infants exceeds its supply. This is a common message throughout the 20th century and it's still true today. Oddly enough almost every news paper that reported about this imbalance between supply and demand claims it to be a recent development. More than 130 years of recent development, in my opinion, is a pattern and that pattern extends to sending countries outside the Western World. Despite claims of huge numbers of orphans, most of those orphans are not infants.

The dead don't procreate, so most children come into this world with one or two parent alive. Like in the rest of the world, people become parentless at a higher rate the older they get. Infants are the least likely to be orphans of all people on this earth. But infants are the most wanted of all children when it comes to adoption, to the point that one American adoption facilitator even provided ultrasound images of the unborn children people wanted to adopt.

Law reform oriented to facilitating lawful adoption would do much to reduce such adoption abuses as exist. The Hague Conference Report providing the rationale for the Hague Convention on Intercountry Adoption made this very point, finding that then-existing difficulties created pressure for corrupt practices that would not exist in more effective systems for matching children with prospective parents (Hague Conference on Private International Law, 1990, p. 188). Better enforcement of laws prohibiting adoption abuses is the obvious additional answer. When parents violate laws prohibiting child maltreatment, we don’t shut down the system that sends newborns home with their parents. We call for better enforcement of laws prohibiting maltreatment.

My first question: how can law reform be achieved? Ever since 1956, the United States has tried to create Federal laws to abolish baby brokering. It failed in 1956, it failed in 1960, it failed in 1964, it failed in 1977, it failed in 1984, despite 5 congressional hearings on the issue.

Politicians don't like to burn their fingers on inter-country adoption regulation, they much rather pander to their constituents like the Bush administration, Prime minister Berlusconi and several other political leaders did by putting pressure on Romanian pipeline cases.

Even worse than that are the actions of then first lady Hillary Clinton who used her political influence in 1995 to have trafficked children enter the US. Of course we can add Democratic Senator Barbara Boxer's support for the Guatemala900 initiative, which was carried by 51 of her colleagues. It is striking in that sense that even the Masha Allen case was not brought to congress as an adoption case but as a child pornography case.

In the Netherlands the Ministry of Justice even blocked investigations into corruption of adoption from China because it would have a negative impact on diplomatic and economic relations.

There is no political will to reform law and when we look at the Hague Convention it is obvious that no such will has ever existed. Central authorities, the key aspect of the Hague Convention, only centralize corruption, if that corruption wasn't already centralized (like it was the case with India and China). The Hague Convention is a toothless paper tiger that does nothing to prevent child trafficking, it streamlines the adoption process between sending and receiving countries.

International adoption critics argue that it is naive to think that adoption laws can be enforced in certain countries, given corruption and limited capacities for governance. But even if adoption abuses occur on more than an occasional basis, and even if eliminating them would be hard, shutting down international adoption is wrong. Zero tolerance for adoption abuses may sound good but it will hurt children. The evils involved in such abuses must be weighed against the far more significant evils involved in denying children homes.

This is a very curious passage. It is indeed naive to think adoption laws can be enforced in certain countries. The influence on a country like China is most unlikely, they don't even allow UNICEF inspections, let alone accept criticism from other countries. Ethiopia, one of the other big sending countries, is such a mess that law enforcement itself is decades away. In Guatemala critics of inter-country adoption have to fear for their lives. So yes it's very true that it's naive to think that adoption laws can be further enforced in sending countries.

But the curious thing is that while more or less acknowledging some corruption could take place, Ms. Bartholet seems to see it as wrong to stop a practice that can not be bettered. If her reasoning is true, it's better to steal a child for inter-country adoption than not adopting the child at all. The evil of stealing a child weighs less in her opinion than not providing a child (that already had a home) a replacement family. This is very curious apology for child stealing to me, unless we look at it from the business point of view where indeed it is worse not to have supply when demand is so high.

The situation in Guatemala helps illustrate. Claims that adoption intermediaries were giving birth mothers payments in connection with their surrender of babies helped shut down international adoption. But there is no good evidence that these payments were used to induce mothers to give up children they would have kept but for the payment. Instead it seems likely that given their desperate poverty and limited access to birth control, virtually all mothers given such payments would have surrendered regardless. Payments for anything except expenses are illegal, and probably should be since it would be hard to know when any such payment influenced the surrender decision, and thus hard to draw the line between lawful payment and unlawful baby selling. But there is no terrible evil in a poor birth parent who would in any event surrender a child being given funds which will help her survive along with any other children she may have. Shutting down international adoption programs in Guatemala deprives thousands of children per year of the chance to grow up in nurturing homes, rather than life-destroying orphanages. That’s an evil that should count for more.

This passage leaves us flabbergasted. Ms. Bartholet is a Harvard professor, so her words should be considered as part of academic discourse, yet her presentation of the Guatemalan situation is speculation at best, but more likely a gross misrepresentation of the situation.

First a fact. Guatemalan babies were literally stolen and there is proof for that, a crime that somehow doesn't seem to fit the argument Ms. Bartholet is trying to make. Then she uses a very weird trick by saying that the money paid to some mothers could probably not have induced them to surrender, because they might have done so anyway. That's about the same as saying: someone who hires a hitman is not involved in the murder, because the hitman could also have made the killing without the payment. Anything is possible in Ms. Bartholets world, except the most likely that offering poor women money in exchange for children induces them to surrender.

But even if women are paid to do so it's not to be seen as a bad thing, because otherwise the child would not be adopted. The point that Ms. Bartholet seems to ignore here is that the children being sold do not live in "life-destroying" orphanages. They live with their family and are being taken care of in often difficult situation. Offering money for children creates orphans and international adoption is the cause and not the solution to that.

Baby buying is generally not thought of as a serious evil in today’s world in other contexts. Commercial surrogacy is the institution in which true baby buying takes place systematically. Surrogacy contracts specify that the woman who provides pregnancy and childbirth services, and often her egg as well, will receive money in exchange for turning over the baby born, and terminating her parental rights. Commercial surrogacy is flourishing in the United States and many other countries, and international commercial surrogacy is spreading rapidly, as those who want to become parents turn to poor countries for surrogates who will charge low prices. Some of the countries which have shut down or significantly restricted international adoption are now engaged in the rapidly expanding international surrogacy business. Private lawyers who used to arrange international adoption from Guatemala are now earning a living arranging for Guatemalan women to get pregnant in order to surrender for a fee their babies and their parenting rights. India, which has significantly restricted international adoption, including by requiring that 50% of all adoptions be in-country (Dohle, 2008, p. 131), is engaged in a booming international surrogacy business, and is on the verge of regularizing it through facilitating legislation (Smerdon, 2008, p. 15; Gentleman, 2008). Russia, which has also significantly restricted international adoption, is enthusiastically embracing international surrogacy (Lee, 2009, p. 284). UNICEF and other critics of baby buying in the international adoption context, are interestingly silent about international surrogacy.

This passage, like most of this section of the article is simply nothing more than being apologetic in the sense that two wrongs make one right. The fact that surrogacy has still flown under the radar in many situations is because international surrogacy is a relatively new phenomenon. Inter-country adoption started before the second world war between the United States and Canada, while becoming serious business immediately after the second world war. It took at least 40 years before serious criticism started to evolve with regards to inter-country adoption. So it's no surprise that international surrogacy has not gotten the attention it deserves. On a national level though it has raised questions. Germany for example has made it illegal after serious dispute about it. That debate has not taken place in the United States that much, and may have escaped Ms. Bartholet's ivory tower.