Having it both ways on adoption policy

by Nigel Cantwell

It flies in the face of everything we know — or should have learned — about ensuring that intercountry adoptions take place in accordance with the rights and best interests of the children concerned.

Ireland took 17 years to ratify the 1993 Hague Convention on Intercountry Adoption, and was the very last significant “receiving country” to do so. To date, 90 countries — both “receiving” and “countries of origin” — are parties to that treaty, which was developed to provide compulsory safeguards for cross-border adoptions in the light of growing, widespread, and egregious malpractice documented during the 1970s and 1980s. Ireland’s 2010 Adoption Act reflects the requirements of the Hague Convention and, in so doing, finally enabled ratification to go ahead.

Invariably, once a “country of origin” has taken the convention on board, the number of children adopted abroad has dropped, sometimes considerably. Adoptions from China, as just one example, totalled over 14,000 in 2005, but began falling as soon as the country had ratified the convention in 2006, and last year numbered less than 4,000. This is due to two factors.

First, states parties to the convention set in place stricter procedures to ensure that children are being adopted abroad for the right reasons and by appropriate persons.

Second, they make ever-increasing efforts to put in place improved opportunities within the country — including family strengthening, long-term foster care, and domestic adoption — to avoid the need for recourse to adoption abroad and thus to respect the “subsidiarity” of intercountry adoption which is central to the Hague Convention.

At the same time, the number of people in “receiving countries” seeking to adopt has generally been holding steady. The reaction of some governments, particularly when pressured by those prospective adopters confronted with far fewer “adoptable” children within the Hague system, is consequently to try to facilitate more adoptions from countries still outside this system.

This is of course a glaring paradox — on one hand signing up to a treaty designed to protect children’s rights and best interests, and on the other actively looking to countries that, for whatever reason, have not agreed to be bound by those same rules. That is why states party to the Hague Convention have jointly recommended that they “should apply as far as practicable the standards and safeguards of the convention” in their dealings with non-Hague countries.

Ireland’s 2010 Adoption Act seems to respond to that by requiring that a bilateral agreement be in place in such cases. While experience shows that such bilateral accords can have perverse effects, such as diminishing political will to ratify the Hague Convention and fixing sometimes questionable conditions for long- term “co-operation” on adoption, they at least have the merit of avoiding the free-for-all situation that too often occurs when there are no formally-approved regulations between the countries concerned.

However, Ms Fitzgerald reportedly sees the bilateral requirement as “quite restrictive”. Does this indicate a willingness to forsake internationally agreed frameworks to protect children’s rights and best interests in order to enable Irish prospective adopters’ dreams to be fulfilled more easily? If so, it would be reminiscent of a pre-Hague stance, bringing with it all the dangers the convention has sought to address.

The question Ms Fitzgerald needs to ask is not “how can we increase the number of intercountry adoptees coming to Ireland?” but “why do some countries still refuse to accept the safeguards set out in the Hague Convention?”

Unfortunately, the answer to that second question will certainly bring to light some highly disturbing facts about how and why some children come to be adopted abroad.

* Nigel Cantwell is an international consultant on child protection policy and an author of Unicef’s ISS report into adoption practices in Vietnam