International Adoption: The Human Rights Position
| Published date | 01 January 2010 |
| Author | Elizabeth Bartholet |
| Date | 01 January 2010 |
| DOI | http://doi.org/10.1111/j.1758-5899.2009.00001.x |
International Adoption:
The Human Rights Position
Elizabeth Bartholet
Harvard Law School
Abstract
International adoption is under siege, with the number of
children placed dropping in each of the last several years, and
many countries imposing severe new restrictions. Key forces
mounting the attack claim the child human rights mantle,
arguing that such adoption denies heritage rights and often
involves abusive practices. Many nations assert rights to hold
on to the children born within their borders, and others
support these demands citing subsidiarity principles. But
children’s most basic human rights are to grow up in the
families that will often be found only through international
adoption. These rights should trump any conflicting state
sovereignty claims.
Policy Implications
•International adoption is under siege by those claiming the
human rights mantle.
•Children’s most fundamental human rights include the
right to a nurturing family which is often available only
through international adoption.
•Children’s fundamental human rights should trump state
sovereignty claims.
•Neither adoption abuses nor concepts of heritage justify
restrictive international adoption policies, in-country hold-
ing periods or the elimination of private adoption interme-
diaries.
•International adoption appropriately recognizes children as
citizens of a global community with basic human rights
entitlements.
I flew from the United States to Peru in 1985 to adopt
four-month-old Christopher, and flew back in 1987 to adopt
one-month-old Michael. I counted myself from the first
moments we met as extraordinarily lucky to be their parent.
But I still wondered at the policies that made it so hard to
adopt. I spent three months in Peru for each adoption, ago-
nizing through endless sessions with police, social workers
and courts, and fighting off mysterious threats to remove the
children who had become mine in every way except the law.
I realized then that of all those who might want to adopt
from Peru very few would be able to, given the difficulties.
I also began to learn how many children needed
parents. Daily I would hear about those newly orphaned
by the Shining Path terrorists. In an orphanage, I saw
babies crowding the nurseries and older kids playing and
fighting unsupervised in the bleak yard. Few children
ever received a visit from a parent or relative, yet no sys-
tem apparently existed for terminating parental rights so
that children could be adopted. The child welfare agency
told those who inquired about adoption that no children
were available.
I have spent much of the 25 years since my adoptions
studying the needs of unparented children worldwide, and
the role of international adoption. This work has simply
intensified my initial conviction that something is terribly
wrong with policies that lock children into orphanages,
away from prospective parents.
For a period during this time, some more adoption-
friendly policies developed. The Hague Convention on In-
tercountry Adoption was promulgated, preferring
such adoption to in-country foster and institutional care
(Bartholet, 2007b, pp. 172–177; Hague Conference on Pri-
vate International Law, 1993). The numbers of interna-
tional adoptions rose, reaching up to 45,000 worldwide
(Paulsen and Merighi, 2009, p. 3; Selman, 2006). Some
countries that had not allowed children to be placed abroad
opened up, including Russia, China and countries in East-
ern Europe and Africa. Adoption became less stigmatized,
and thus chosen by more prospective parents.
However in the past several years the world has reversed
direction. The numbers of international adoptions have
dropped dramatically. Many countries have closed or
severely restricted their international adoption programs. It
is now almost unheard of for children to be placed interna-
tionally as the young infants that Christopher and Michael
were. Indeed it is extremely rare for children under the age
of one to be placed. Yet child welfare experts know that
keeping infants in institutional care for more than a few
months puts them at enormous risk of lifelong damage,
even if they are ultimately adopted, with the risk increased
proportionately with the length of stay (Bartholet, 2007a,
pp. 346–348).
The organizations leading the attack on international
adoption describe themselves as child human rights orga-
nizations. But institutional forms of human rights activ-
ism have often played a perverse role (Kennedy,
2004). Children’s most fundamental human rights are to
Global Policy Volume 1 . Issue 1 . January 2010
Global Policy (2010) 1:1 doi: 10.1111/j.1758-5899.2009.00001.x 2010 London School of Economics and Political Science and John Wiley & Sons Ltd.
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Research Article
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