Why the Hague Convention needs revision

This week the Department of State put out the following question on their blog:

How can the international community best ensure that adoptions are transparent, and that the rights of adopted children, birth families, and adoptive families are protected?

It is good to see the Department of State is looking for input, though the assurances being looked for can only be appreciated when realizing adoption is a business and has been around for more than 100 years.

In 1881, thirty years after the first modern adoption act, several syndicated news papers ran a story about baby brokering in New York City. The article contained a striking phrase:

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This article about baby brokering in New York City was no isolated incidence. As early as 1892, the Chicago Tribune ran ads from doctors in Chicago looking for pregnant women to relinquish their babies for adoption. And in 1901, that same newspaper stated in one of its articles:

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The issue of a demand exceeding supply was not limited to the infertile in New York City and Chicago.  Retirees in early 20th century Pasadena discovered an empty nest was unsettling.  The solution? Adoption. The demand for children to help alleviate the boredom of early retirement was much bigger than the availability of children for adoption.

Throughout the 1930's, newspaper after newspaper ran stories claiming the demand for adoptable infants far exceeds the supply. On December 19, 1932. Celebrity adoption agency The Cradle apparently had a waiting list of 1000 couples wanting to adopt, while only having 24 babies available. Having to wait made it particularly frustrating for those couples wanting to have a baby before Christmas.

During that same period the first inter-country adoption scandal emerged from Canada, where the Ideal Maternity Home was involved in both illegal adoptions and insensitive care rendered within the institution, a combination of practices still existing today in many sending countries.

In the 1950's the situation behind child trade got so out of hand, Senator Estes Kefauver held congressional hearings about baby brokering. The transcripts of the hearings sketch a vivid image of the practices taking place at the time. The child trafficking uncovered between Canada and the US are particularly noteworthy.

At the time, a strong demand for adoptable infants existed among the Jewish population in New York. Yet there was very little supply of adoptable infants born to Jewish women. There were adoptable infants in the State of New York, but most of those infants were born to Catholic women. Some Jewish families didn't want to adopt infants that were not born to Jewish women, while at the same time the Catholic church blocked the adoption of infants born to Catholic women by Jewish families that had no objection to adopt outside of their own religion.

The trafficking scheme the Kefauver commission uncovered, showed a large supply of adoptable infants existed among the Catholic population of Quebec. Many of those infants were sold to Jewish families in the US as if they were born to Jewish Canadian women.

Despite evidence of inter-state and inter-country child trade, federal regulation of adoption never made it in the US. There were numerous efforts to do so, and Senator Kefauver was by no means the last to hold a congressional hearing on the issue of baby brokering, but for some reason, Congress never had any appetite to enact federal legislation to regulate adoptions.

Trafficking between Canada and the US remained an issue until the early 1970's, when the supply of adoptable infants dried up, due to changing attitudes towards out-of-wedlock pregnancies and availability of anti-conception.

Baby brokering continued to play a role in the US, until the late 1980's, when South Carolina changed it's adoption laws to forbid the sale of children. By then the supply of adoptable infants in the US had gone down significantly, while demand remained high. To meet this demand, the baby brokering business was outsourced to foreign countries.

Inter-country adoption had existed since the days of the Ideal Maternity Home, but really started picking up after the second world war. The first batch of adoptable infants came from Germany and Austria, soon followed by Greece, yet the supply of adoptable infants dwindled in the next 20 years as Europe recovered.

Adoption from South Korea started in the middle of the 1950's and remains exceptionally high to this day. Nearly all countries show boom bust cycles, but South Korea has remained a steady supplier of adoptable infants, even when modern day South Korea is a rich country that is economically capable of taking care of their own. The presence of a well established adoption industry in that country seems to prevent the end of the inter-country adoption programs.

The next main supplier of adoptable infants was Latin America. Civil wars and brutal dictatorships throughout the 1970's and 1980's spurred the number of adoptable infants in countries like Brazil, El Salvador, Honduras, Paraguay, Peru and Guatemala, The baby brokering patterns so prevalent in the US in earlier decades were repeated in these countries and eventually one after another closed their borders for inter-country adoption or installed very restrictive laws to prevent abuses. Guatemala was the baby brokering stronghold in Latin America, but in 2008 finally put a halt to these practices.

The industry, never short of demand, had already found new sources of adoptable infants in Eastern Europe due to the fall of the iron curtain. Programs were started, primarily in Bulgaria, Romania, Russia and Ukraine. At the same time Asia became an interesting source for adoptable infants too, with countries like: Cambodia, China, India, Nepal and Vietnam.

Both in Eastern Europe and in Asia age old baby brokering patterns showed up, but this time with a new twist. Unlike previous adoption waves, this time humanitarian aid was deeply entwined with adoption practices. While baby brokering practices in the US and Latin America primarily revolved around adoption attorneys, the adoption waves in Eastern Europe and Asia were much more orphanage related, with humanitarian aid being the motor behind the adoption economy.

In order to "earn" adoptable infants, adoption agencies and prospective adopters make donations to orphanages. The more money donated, the larger the number of infants an agency is entitled to. Orphanages don't necessarily have a shortage of children in their care, but many don't have a large supply of adoptable infants. When orphanages receive more donations than they have adoptable infant stock, they need to procure infants to fulfill their obligation.

The baby brokering trade has made this shift in business due to the

. The Hague convention was introduced in the 1990's to curb the illegal practices in inter-country adoption, but is a woefully naive treaty. It states that no profits are allowed to be made and only reasonable fees can be asked for services performed and all adoptions should be performed under control of Central Authorities.

The Hague Convention is designed around the experiences drawn from old school baby brokering in Latin America. To steer away from this attorneys centered style of baby brokering, the Hague Convention promotes a system of accredited adoption agencies monitored by Central Authorities. What the Hague Convention failed to notice is that adoption agencies are perfect fund-raising vehicles. Not only are their paying customers willing to pay large amounts of money in orphanage donations, they also receive large amounts of money through regular fund raising activities. Nearly all internationally operating adoption agencies have affiliated foundations, some sitting on tens of millions of dollars.

Instead of paying lump sum amounts of money to adoption attorneys, as was the old school style of baby brokering, under the Hague Convention lump sum amounts of money are paid to orphanages as a quid pro quo form of charity.

Don't take our word for it. Let it come from Ambassador to Vietnam Michael Michalak, who in an internal note makes the following statement:

4. (SBU) Long went on to say that DIA was looking to revise the donation system because the current system was “putting too much pressure on orphanages.” As Long explained it, under the current system, ASPs now agree to fund projects at orphanages for certain amounts of money. These donations are then divided by the orphanages into a “per child donation rate” to determine how many children will be provided to that ASP at "a 'per child" rate. Long went on to explain that this could be a problem because if an ASP agreed to accept funds for a project with a donation equal to 10 for example, but the orphanage only had 4 children to deliver, then the orphanage had to find additional children to meet obligation to the ASP. (Comment: We were quite surprised to hear DIA give this unusually frank account of the financial dealings of orphanages with ASPs. which clearly raises serious issues with regard to how the “orphan business” is being run and the pressure on orphanages to produce babies. End Comment)

The description of the functioning of the donation system is given by Dr. Vu Duc Long, director of DIA, the Vietnamese Central Authority, who frankly tells how donations are used as entitlements for adoptable infants and results in a pressure upon orphanages to meet their obligations.

This style of inter-country adoptions is pervasive in the current adoption market. Gone are the days of undisclosed payments to attorneys; these days charity is used in a quid pro quo fashion to make the payments needed to meet the demands for adoptable infants.

The donation driven style of child trade is not only allowed under the Hague Convention, it is effectively a response to the Hague Convention. It also provides adoption agencies with a prime marketing instrument. Instead of paying an attorney excessive amounts of money, those excesses are now charitable donations. Donation driven adoption procurement allows prospective adoptive parents to feel good about themselves; the money paid is either a reasonable fee or a charitable donations, where the latter is tax-deductible on top of it.

If the US Department of State really wants to improve inter-country adoption, it should push for a revision of the Hague Convention. The convention is modeled upon an old-school attorney centered style of baby brokering that is no longer the common practice. A revised Hague Convention should address the issues surrounding orphanage donations. The quid pro quo system needs to end to make ethical adoptions possible.

The reliance of the Hague Convention on Central Authorities has also proven to be naive. Central Authorities in sending countries tend to be corrupt, while Central Authorities in receiving countries are under political pressure to condone practices for diplomatic reasons.

Corruption in Central Authorities of sending countries has been reported by Ambassador Michalak; it has been demonstrated in the Preet Mandir case in India, and in China, in the aftermath of the Hunan Child trafficking case. The Chinese authorities told all central authorities the same story: they acknowledged that stolen children had been sent abroad, but not to the country requesting information. China at the time placed children in 14 different countries, and all 14 Central Authorities were told the children were not sent to their country. In the Netherlands, the Chinese lies were eagerly parroted by the Minister of Justice, choosing friendly diplomatic relations with China above respecting the Hague Convention.

The Hague Convention should stop relying on its participating nations to adhere to the rules of the convention. An independent international organization with investigative authorities into inter-country adoptions is needed. Sending countries cannot be trusted; they are too eager to cover up child trafficking. Receiving countries cannot be trusted; they are too eager to stall investigations or look the other way for diplomatic reasons and to keep a vocal group of prospective adopters happy.

One of the questions such an independent international organization could answer is why there are such discrepancies between the reported number of children exported by sending countries and the number of imported children by receiving countries. The Hague Convention did a minimal job collecting statistics in 2004 (something they were supposed to do again in 2008 but failed to do), and upon comparing sending figures and receiving figures there was a huge mismatch. For example, according to India, 341 children were sent to the US for adoption in 2001, while the US reported 543 children were received from India that year. Similar differences existed for every subsequent year, India always claiming less children were sent than the US claimed they received. These discrepancies not only existed between India and the US, but between all sending and receiving countries that produced statistics to the Hague Convention.

Despite demanding reasonable fees, the Hague Convention has done a poor job curbing profit making by adoption agencies. While adoption agencies are officially not-for-profit organizations, this doesn't preclude them from generating excess income that is then translated in sometimes exorbitant executive compensations.

Finally, the Hague Convention makes the assumption that adoption when done by the book, is in the child's best interest, but it sets no quality standards for the adoptive placement. Home study requirements vary from country to country and from state to state, and the same is true for parent preparation and post adoption monitoring. The lack of quality standards results in disrupted adoptions and placement with unsuitable families.

There are far too many cases where adoptive parents are misinformed/uninformed about the child they receive, there are far too many cases where adoptive parents lack the skills to deal with children they receive, there are far too many cases where adoptive parents should not have been allowed to be near children in the first place.

Adoption service providers need to become more selective. They need to do a better job preparing adopters and a better job at monitoring the placement of children. Standards can be set and should become part of the Hague Convention.

The good news is, the US doesn't have to wait for a revision of the Hague Convention, which would take years to come to fruition. Setting quality standards for inter-country adoption can be achieved through an amendment of the Intercountry Adoption Act of 2000. Instead of following in other country's footsteps, the US can lead the world into an era where inter-country adoptions are transparent and ethical, and where the best interest of children is guaranteed through proper quality standards.