Seeking the Better Interests of Children with a New International Law of Adoption

Much of today’s debate is connected
to two important instruments of international law: the United Nations Convention
on the Rights of the Child (CRC) and the Hague Convention on Protection of
Children and Co-operation in Respect of Intercountry Adoption10 (the “Hague
Convention” or the “Convention”). These two documents disagree over the proper
role of intercountry adoption in addressing the needs of children and their families.
The CRC condones but does not demand adoptive placement for a child who is
deprived of his or her “family environment.”11 Adoption is merely one alternative for
such a child. Other alternatives include foster care or a “suitable institution.”12 Properly interpreted, the CRC does appear to favor adoption, or at least foster care
over institutionalization.13 However, the CRC’s mild approval of adoption is mainly
for adoption within a child’s nation of origin. The CRC endorses intercountry
adoption only if the child cannot be placed in “any suitable manner” in the child’s
nation of origin.14 According to some interpretations, “suitable” placement within the
nation of origin might include an institution or an undefined form of foster care.15
The CRC’s preference for any “suitable” local placement over intercountry adoption
is sometimes referred to as the “principle of subsidiarity.”16 The strict view of
subsidiarity is that intercountry adoption is the last resort for a child for whom there
is no “suitable” local placement.17 The other major international adoption law, the Hague Convention, adopts a
modified version of subsidiarity that moves the rank of intercountry adoption up one
notch, at least for a limited number of nations that have signed the Convention. The
Preamble states that “intercountry adoption may offer the advantage of a permanent
family to a child for whom a suitable family cannot be found in his or her State of
origin.”18 In other words, family placement (adoptive or foster; local or intercountry)
is favored over institutionalization in most cases, but “suitable” local family placement
(foster or adoptive) trumps intercountry adoption. The Hague Convention’s
endorsement of adoption is not as powerful as one might expect given the Convention’s
principle purpose of facilitating intercountry adoption by a set of international rules
and procedures.19 Naturally, a blanket endorsement of adoption for all children in all
situations of need would be inappropriate. Still, the Hague Convention falls short of
speaking clearly to the issues of what constitutes suitable local family placement or
when efforts at local adoption should be abandoned in favor of intercountry
adoption.20 These two documents—the CRC and the Hague Convention—frame the debate:
Does international law fail children by improperly encouraging, discouraging, or
ranking intercountry adoption, and is the law sufficiently protective of children and
other parties involved in adoption? The major participants in the debate can be divided roughly into three groups: cynical critics of intercountry adoption, moderate
critics of intercountry adoption, and vigorous advocates for intercountry adoption.