La fin de l’adoption internationale, pour qui? – PROMOTION DES DROITS DE L'ENFANT (The end of international adoption, for whom? – PROMOTION OF CHILDREN’S RIGHTS)
On 21 May, the Government of the Netherlands officially announced that it will no longer allow its nationals to initiate new international adoption procedures. This decision takes effect immediately, while providing for a transitional period for ongoing cases. This radical choice certainly represents a break in the evolution of international adoption, breaking a social and political taboo, and perhaps even more so from the country that hosts the headquarters of the Hague Conference.
The Netherlands has followed a very logical path: in February 2021, the expert report commissioned by the Government painted an uncompromising picture of past adoption practices, highlighting the failures of the system and their serious consequences on the development of abuses in the procedures. A few days later, the authorities decided to suspend international adoption procedures . At the end of 2022, the Netherlands decided to resume the procedures, but only with 6 countries of origin considered safe. However, this measure did not put an end to the debates: some members of Parliament considered, for example, that "There is too much room for abuse, and it is not a sustainable way of protecting children" . NGOs also took a position , asking the Government to put a definitive end to the practice of international adoption in order to prevent any violation of Article 21 of the CRC. The decision to stop international adoption therefore concludes a fairly long debate. What lessons can we learn from this?
First of all, we must welcome the fact that a host country has managed to put the issue of the practice of international adoption in the public arena, and then to clearly position itself on the meaning it intended to give it. The Netherlands are naturally not the only ones to be confronted with the backlash of the adoptive practice: France, Belgium, Sweden, Norway and Switzerland have also undertaken reflections in this direction. But other historical host countries are still completely silent, while they are certainly just as concerned. The Dutch approach is thus part of a broader movement of "freeing speech" that is very salutary and exemplary in form.
On the substance, the question of whether the practice of international adoption is inherently positive or, on the contrary, negative deserves to be debated today.
This measure has always had its promoters (saving children) and its detractors (commercialization of procedures, exploitation of the South by the North), the very nature of adoption (removing and then creating a filiation) being able to legitimately challenge each citizen. It is unfortunately not possible to objectively determine which way the balance tips: is the number of children who have experienced their adoption in a positive way greater or less than those who have suffered from it? How can we assess the overall impact of this measure on unreachable biological families? What have been, yesterday and today, the contributions of adoptees to the evolution of the societies that have welcomed them?
In the absence of an individual response, let us try to think in terms of societal choices, and therefore of politics, as illustrated by the process followed in Switzerland.
For once, Switzerland did not delay in this matter, having quickly launched studies on the subject, expressed its regrets at the findings of past abuses, and begun work to reform its legal framework. In March 2023, the mandated Expert Group submitted an interim report to the Federal Council which proposed two possible paths: either it considered that the risks were inherent in an international procedure of this type (as Professor Smolin maintains ), and that it was therefore appropriate to stop the procedures definitively, or it set up a very strict system of cooperation between States, allowing better control at each stage of the procedure. The Federal Council chose the second option. While this type of analysis is specific to a host State, and is also shared by others (Flanders for example), it nevertheless says nothing about the meaning of international adoption today.
In my opinion, we need to start from the basics: international adoption is a measure of child protection recognised by Article 21 of the Convention on the Rights of the Child, which is very clearly worded as to the ownership of responsibilities: "States Parties which admit and/or authorise adoption shall ensure that the best interests of the child are the primary consideration in the matter, (…) shall ensure that the adoption of a child is authorised only by competent authorities (…) shall recognise that adoption abroad may be considered as an alternative means of ensuring the necessary care for the child (…), shall take all appropriate measures to ensure that, in the event of adoption abroad, the placement of the child does not result in undue financial gain (…)". Clearly, it is therefore up to the States of residence of the child to decide whether or not to admit international adoption. By no longer allowing its nationals to initiate international adoption proceedings, the Netherlands is certainly taking a measure likely to prevent new potentially abusive procedures, but it is not intervening within the strict scope of the CRC, since the protection of children against such abuse falls within the competence of the States of origin.
The Dutch decision finally sheds light on a key issue that has never (or so little) been addressed until now: if international adoption is a measure for protecting children, it is up to the States responsible for children to decide whether or not it should be part of their child protection system, under what conditions, and in compliance with Article 21 of the CRC. Recent studies have largely demonstrated that the influence of host countries on the development of international adoption is largely the cause of the abuses that must now be addressed. As long as certain host countries continue to adopt abroad without changing their practices, measures such as those taken in the Netherlands will not change anything in terms of improving the protection of children who are likely to be adopted.
It is therefore time for international adoption to undergo its revolution, by overturning a system of powers inherited from the past, by identifying situations where this measure can meet proven needs and by sincerely supporting respect for the rights of the child.