The Baby Business

The convention’s "subsidiarity" principle declares that keeping children with their original families should be the top child-welfare priority. This implies that each nation should have child-welfare and protection systems, social services, and other supports to help families stay together despite financial, medical, or other kinds of distress. That’s a big investment for poor countries, and it holds some back from joining the treaty. Other nations remain outside Hague because of national political concerns about sovereignty; still others, such as Nepal, are not committed to ending corruption, according to a report from the Hague Permanent Bureau. When original families are unfit, the convention urges nations to try to place the child with kin, neighbors, or others within the country, saving the child from the trauma of total relocation. Only as a last resort–to keep a child out of institutions, for instance–should the nation refer a child for international adoption, and then only to foreign adoption agencies that it has screened and licensed.

The adopting countries are also charged with creating "central authorities," whose tasks involve certifying that the prospective adopting families are prepared to be good parents, and assessing that whoever will be working on adoption is ethical, competently trained, has nonprofit goals, and maintains sound business practices. Central authorities on both sides are supposed to communicate directly, in part to keep Western adoption agencies from contracting directly with poor nations’ orphanages or "facilitators."

Some countries reputed to have the best "Hague systems" excelled before signing, or without formally entering, the Hague adoption convention. Before signing the convention, for instance, Thailand and Colombia had centralized oversight of child-welfare programs, trained social workers, begun aiding families in distress, and installed oversight so that only children who have no other good options are offered to foreign families. And in other countries that have signed–India is the prime example–ongoing scandals suggest that the central authority may be either inept at screening out bad actors or perhaps corrupt.

How Does the U.S. Regulate International Adoption?

But what of non-Hague adoptions, which as we recall make up two-thirds of all international adoptions to the United States? Let’s take a look at what can happen when they go bad–this time, in Vietnam, a non-Hague nation. Between 2005 and 2009, Americans adopted 2,220 Vietnamese-born children–and the U.S. Embassy in Hanoi became concerned that a great many involved fraud. One example concerned the Ruc, an ethnic minority living in remote mountain villages. When Swiss anthropologist Peter Bille Larsen was there on a field visit in 2007, Ruc families told him that officials in Quang Binh province pressured them to place 13 children temporarily in a government social welfare center. In 2009, Irish Daily Mail reporter Simon Parry visited the Ruc to follow up, and interviewed Cao Thi Thu, a 35-year-old mother of five who says she tried to bring home the two daughters she’d placed in the center, was refused, and later learned they had been adopted internationally. "Those men lied to me," Thu told Parry. "They said the children would return to the village when they finished school . . . But they sold them as if they were livestock." Some Ruc children have been traced to Italy, and one to the United States. The "nourishing center," to use its Vietnamese name, received about $10,000 per adoption, Parry reported.

The Hague Convention offers only a general outline of what signatories must do. Each nation defines its own "Hague regime" and writes its own "Hague regulations," so long as those conform to the treaty’s basic sketch. The United States’ "Hague implementation" is a tremendous improvement over what we had before: For the first time, the federal government has some legal oversight of most international adoption agencies. Before it had none. But our Hague regime could still improve. The federal government could require Hague review for all international adoption agencies; it could close some regulatory and statutory loopholes through which children can be adopted unethically; and it could more firmly link our Hague system to international child welfare efforts.

Six years after the Senate passed the Intercountry Adoption Act (IAA) of 2000–by which the United States ratified its Hague participation–the State Department, which was designated the United States’ "central authority," published its final regulations and selected its accreditation partners. The State Department instructed its partners to write regulations, accept applications, train reviewers, and issue or deny adoption agencies their accreditation by April 1, 2008. The Council on Accreditation (CoA), the main accrediting body, has received 346 applications for Hague accreditation from adoption agencies, far more than expected. Of those, 223 have been accredited so far and just 13 denied.

Too many agencies were accredited. For instance, one accredited agency had an arrangement with a Vietnamese orphanage that was buying children for adoption, according to U.S. Citizenship and Immigration Services (USCIS) appeals decisions. Another brought in children from the Quang Binh orphanage accused by Ruc families of corruption. Others brought children to the United States from similarly corrupt sources (according to local courts, NGO research, or news coverage) in India, Guatemala, Cambodia, Nepal, or other countries. These U.S. adoption agencies may not have known what was happening at the other end; or they may have been unable, uninterested, or unwilling to investigate how their foreign partners were "finding" adoptable orphans. But unless the adoption agency has undertaken a serious investigation into, and correction of, whatever lapses resulted in those unethical adoptions, such inattention should disqualify them for accreditation.

There are other legitimate concerns about whether our Hague regulations are effective enough at screening out unethical adoptions. For instance, the IAA bans the State Department from using federal funds to accredit adoption agencies. (Kathleen Strottman, who as a senior aide to Democratic Senator Mary Landrieu of Louisiana helped write the IAA, explains that because accreditation itself was so contentious at the time, those who were writing the IAA didn’t want to incur the additional opposition of budget hawks.) Because of this, the CoA’s review must be paid for entirely by adoption agencies’ application fees. State required that fees be low enough to allow all reputable agencies to apply–while high enough to fund a "successful" amount of review. That rules out paid staff reviewers–or even occasional contract investigators.

As a result, the CoA’s accreditation review system trains "professional volunteers"–primarily U.S. adoption agency directors and senior managers–to examine one another’s operations. Observers like Richard Klarberg, the CoA’s CEO, and Susan Soon-Keum Cox of Holt note that this is standard practice in the human services field, that the ethical agencies are highly motivated to weed out the bad ones, and that only people experienced in the field can spot and catch lapses in practice. That may indeed be the right approach to accrediting standard office operation–ensuring, for instance, that an agency has privacy safeguards, insurance, staff with sufficient professional credentials, business-like budgets, and so forth.

But limited funds mean that CoA cannot afford to hire overseas investigators to check on agencies’ operations in other countries, or to investigate either allegations or suspicions of overseas wrongdoing. For instance, if an agency’s filings assert that it is spending $10,000 per month on aid to an orphanage or other humanitarian operations, the Council has no spot-checks to see whether that money is being used to fund family welfare programs or in less reputable ways. And CoA can’t afford to contract with someone overseas to take a look. Staff at the State Department’s Office of Children’s Issues (OCI), responsible for Hague oversight, say that they regularly talk with Klarberg’s group about all relevant information coming in from their embassies. But outside the small and relatively low-level OCI office, the State Department’s consular officials overseas aren’t mandated to check on where "humanitarian donations" actually go. Nor is anyone else.

The biggest problem with the U.S. Hague implementation efforts is similar to the one that exists in the convention at large: the United States officially applies its "Hague" rules only to adoptions from other Hague nations. Which means that, for most American families seeking to adopt, full Hague safeguards do not apply. In fiscal year 2009, Americans adopted 12,753 children from other countries. Fewer than 4,000 of those came from countries that have entered the Hague Convention. Those numbers aren’t as dire as they seem. Most non-Hague adoptions come either from "semi-Hague" countries–for instance, Russia won’t license U.S. agencies unless they are Hague-accredited–or are arranged by Hague-accredited agencies. But U.S. agencies without Hague accreditation may nevertheless arrange adoptions from countries outside the Hague Convention–and can be found working in problem countries like Nepal and Ethiopia.

Lies, Damn Lies, and Immigration

So how does the United States oversee adoptions from countries that have not entered the Hague–i.e., most of them? Through immigration law, which is inadequate to the task. Consider what international adoption looks like when it involves non-Hague countries. For months, prospective parents deal with private adoption agencies and social workers, filling out documents, getting finger printed, and paying thousands of dollars in often non-refundable fees. Finally, their adoption agency sends a "referral" picture of a child who the agency says is available for, and in need of, adoption. They pay their final $5,000-10,000 in fees to reserve this child. They can scarcely wait to fly over and bring her home.

Then the agency tells them to take their final step: fill out the U.S. immigration service’s I-600 application (the form for adoptions from non-Hague countries) for an orphan visa for that child. The agency assures them this is just a bureaucratic formality. That’s usually true; in most countries, in most cases, the I-600 application will be approved after an immigration agent takes a quick look at the documentation.

But here’s the catch. Few prospective parents realize that those forms authorize the U.S. government–for the first time–to investigate whether that child is adoptable under law. The family almost certainly does not understand that, by filing those forms, they as prospective parents take on sole legal responsibility for proving that child is an orphan. The USCIS has no relationship with the adoption agency. Its only legal power is to investigate whether the I-600 application’s facts are accurate, without considering context. It does so on the fiction that the prospective parents have knowledge, independent of the adoption agency, about their promised child. Again, for most children and most countries, this is no problem. But when USCIS or the State Department has spotted corruption in a country’s adoptions, this can set up the clash from hell.

If a family is adopting from a Hague Convention country–say, China–both the form and the process are different. The American family still has the legal responsibility for proving to the U.S. government that the child is adoptable, but they are not left alone to do so. Instead of going through USCIS, the family’s Hague visa application will travel through the State Department, which will check on the child’s status before the prospective family travels overseas, and which can interrogate both the adoption agency and the foreign country as needed. Under the Hague, China’s government is responsible for ensuring that the child needed a home abroad. Just as important, if the American family’s agency has violated State Department regulations, it jeopardizes its ability to work in Hague countries.

But on I-600 adoptions–adoptions from non-Hague countries–those safeguards are missing. If there were corruption in such a case, it’s not clear that an agency would automatically lose Hague accreditation. As a result, the federal government has no consistent way to hold agencies accountable for actions in countries that haven’t signed onto the Hague Convention.

Worse, unlike in other immigration conflicts, immigration officers have very little power to say no to orphan visa applications. To deny an orphan visa, the immigration officer must explain how he knows that child’s documents are fraudulent–without referring, say, to the fact that that particular orphanage is "finding" abandoned infants at a rate that’s startlingly high compared with orphanages that do not have contracts with that particular American adoption agency.

The immigration officer must have overwhelming evidence to back him up. The prospective parents have the burden of proof in establishing that a child is an orphan–but the standard is absurdly low. Because visa applications are rarely denied, there are very few appeals. Reading them and seeing how much evidence is required to sustain the denial reveals why USCIS so rarely denies a visa. Trish Maskew, who worked on untangling problems in Cambodian adoptions and who is one of the authors of The Hague Convention’s Guide to Good Practice, believes that if USCIS could deny suspect applications more easily–with, say, a higher burden of proof for the prospective parents, and the ability to use a wider range of evidence–corrupt adoptions could be stanched more quickly, allowing the "good" adoptions to continue. But why stop there? Why not allow the State Department or USCIS to look at the larger picture, and call a temporary halt to all of an agency’s adoptions once it spots troubling patterns? USCIS and the State Department don’t believe they have that authority now, but Congress could give it to them.

Responsibility: What’s Your Policy?

If Congress is going to act, it should require Hague accreditation for all agencies arranging intercountry adoptions. Nearly everyone I’ve interviewed who tracks adoption corruption, inside and outside the government, endorses this; Democratic New Jersey Representative Albio Sires’s office is working on legislation toward this end. Accreditation may be imperfect, but at least it allows the State Department (and the Justice Department, as we’ll see below) some way to hold agencies responsible for what they do overseas. Doing so is now feasible in a way it was not in 2000 when Congress passed the IAA. In the decade since, mass media and policy outlets have broadcast or published in-depth reporting on unethical adoptions. The State Department and the U.S. immigration service have worked to educate Congress about the real problems in, for instance, the Vietnamese adoption system and the need to tighten rules. I regularly hear from agonized parents who believe they may have unintentionally been party to corruption, who are searching mightily for the facts, and who wonder what they will someday tell their children. As a result, there’s a constituency for reform.

But requiring Hague accreditation for all international adoptions will be effective only if some holes are plugged first. That’s because in an adoption from another Hague country–Thailand, say, or the Philippines–the Thai or Philippine central authority is presumably checking to see that the child needs an international home. That’s not necessarily true in "non-Hague" countries. The United States can tighten some critical statutory provisions, policies, and regulations to screen out agencies that may try to evade responsibility for corruption overseas. These reforms should involve a few key principles:

First, prohibit cash transfers. No adoption agency should ever require individual parents to carry in and hand over large sums of cash–to government officials, orphanage officials, or anyone else–in exchange for adoption services. Although once required in some countries like China and Russia, cash transactions have been made obsolete by the expansion of modern banking systems and wire transfer services. Some agencies still tell families to carry large sums of cash for direct payments–which the Hague Convention’s Guide to Good Practice frowns upon. The State Department’s Hague regulations must be revised to stop this.

Second, hold U.S. adoption agencies accountable for all their overseas partners’ actions. In theory, this is now required by the IAA of 2000, but the State Department’s regulations allow an important exception, called "unsupervised providers." In these cases, foreign sources, like hospitals or facilitators, can submit documentation saying they’ve done the right thing when getting parents’ consent to relinquish a child or when reporting on a child’s background. But fraudulent documents have been a large part of the problem. The State Department should change the regulations so that agencies have a legal duty to scrutinize and check on all their overseas sources’ activities, period.

Third, limit and track adoptions’ overseas fees in more detail. International adoption involves amounts of money that are disproportionately large in relation to poor countries’ economies. The State Department’s Hague regulations require agencies to disclose the total that the adoptive parents will be charged in each of nine categories. Three are especially relevant to corruption: the totals for all overseas adoption-related activities; for caring for the child; and for contributions to a country’s child welfare programs. But in 2009, according to the State Department, that first category–called "foreign country program fees"– ranged from $3,500 to $35,790, while contributions to child welfare programming went as high as $11,000. Those categories are all but impossible for consumers to compare from one agency to the next, since each agency has its own way of naming and categorizing its fees. They’re unclear in part because State Department regulations are unclear; agencies don’t necessarily know what to list where. Surely most agencies spend (or donate) every penny righteously–and just as surely, some do not. Exactly where does all that money go? Consumers and investigators could more easily find out if the State Department required agencies to list fees in a standardized format, and to itemize overseas efforts in more detail–in some cases, producing bank transfer statements or receipts, as the Hague’s Guide to Good Practice advises, both for prospective parents and accreditation reviewers.

Fourth, limit and track how much agencies can pay their overseas partners, workers, and independent contractors. Under current regulations, U.S. agencies are permitted to compensate their in-country workers and partners with amounts that are disproportionately high compared to the country’s economy. Those large payments can be a problem. If an adoption facilitator is making so much per adoption in service fees that he could easily pay a Vietnamese police officer or a Guatemalan nurse a year’s salary for "referring" one child for adoption, might not that induce some to "find" children unethically? If a government orphanage could receive 10 times as much money for referring a child for international adoption than it could for a domestic referral, wouldn’t that be an incentive to send children overseas rather than seek a local family? Wages for international adoption work should be proportionally related to comparable in-country work.

Fifth, earmark some small amount of federal funds for CoA investigations. If CoA gets allegations of wrongdoing but can’t afford to check them with a random sample of an agency’s adoptive parents, or can’t contract with someone to look overseas at an agency’s humanitarian expenditures, it can’t be as effective as necessary in screening out wrongdoing.