Nobody’s baby – Are ‘baby farms’ a result of adoption law loopholes?

Nobody’s baby – Are ‘baby farms’ a result of adoption law loopholes?

By SAJITHA PREMATUNGE - Sep 30, 2017 222 0

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It’s easy to romanticize about a dark skinned man with a European accent who comes to Sri Lanka looking for his long lost mother who gave him up for adoption as an infant. We’d all love to see his mother’s tear streaked cheeks upon finally being reunited with her son. But the hard truth is that he was probably, very likely, sold.

The decades old issue of ‘baby farms’ resurfaced recently when Health Minister Rajitha Senaratne admitted to the Dutch current affairs programme Zembla, the previous existence of ‘baby farms’ where up to 11,000 children were sold for adoption to foreigners in the 1980s.

This begs the question, was there no one to claim these children in Sri Lanka. And why were their impoverished mothers forced to sell their infants. In fact, to date there are many local couples in the Department of Probation and Child Care waiting list for adoption and it may be years before they can claim their parenthood. The local adoption process can take up to five years, while newborn babies are thrown in garbage bins and illegal abortion clinics mushroom unchecked. The harsh truth is that the local adoption laws and policies are outdated. It would help to reduce such injustices if the local adoption laws were more lenient and the process speeded up.

Law

According to the Adoption of Children’s Ordinance the District Court of Colombo and the District Court of Colombo South have the appropriate jurisdiction, and are empowered to make orders of adoption of Sri Lankan children by persons not resident and domiciled in Sri Lanka. Foreign applicants cannot find children for adoption privately.

Allocation of children can only be made from the Sri Lankan State Receiving Homes and Voluntary Children’s Homes that are registered by the Department of Probation and Child Care Services for over five years and only by specific authorization of the Commissioner of Probation. The mental, religious and financial background of the foreign applicant is taken into consideration before giving a child for adoption by a foreigner.

The applicant should be over 25 years of age; the age gap between the applicant and the child must be at least 21 years; if the applicant is unmarried, consent of the spouse is necessary; if the applicant is an unmarried man wishing to adopt a girl child, it may be prove difficult, unless the applicant is the alleged biological father of that child; only children below 14 can be adopted; consent of the parents or guardian is imperative; if child is over 10, the consent of the child is also necessary. Of course, if the applicant is a relative of the child he or she may be exempted of some of the criteria.

Inter-country adoption

As per the National Child Protection Policy Inter-country adoption should be discouraged except as a solution of last resort, unless the adopting parents are of Sri Lankan origin. It further states that the State is under an obligation to take steps to find suitable care for the child within Sri Lanka. According to 1992 amendments to Child Adoption Ordinance a foreigner could adopt a Sri Lankan child only when no Sri Lankan has applied for adoption of the child.

Section (a) of Article 21 of the UNCRC states, ‘The State shall recognize foreign adoption and such adoption may be considered as an alternative means of child care if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin.”

According to report made public in 2009, titled ‘Inter-country Adoption of Sri Lanka Children’ approximately 90 per cent of children were given for foreign adoption at a time when thousands of local applicants were on a waiting list for years in the Department of Probation and Child Care. In 2015 a total of 23 children were adopted by foreigners and Sri Lankans domiciled in foreign countries. According to the report this was done by one state run and four voluntary children’s homes.

State homes

The National Child Protection Policy also holds that the child should be placed in family-based care, reiterating the importance of ‘de-institutionalization’. Yet there are thousands of children currently in state homes.

‘According to ‘Out of Sight, Out of Mind – Report on Voluntary Residential Institutions for Children in Sri Lanka: Statistical Analysis’, carried out by UNICEF, there are 488 voluntary homes in Sri Lanka. Of them 342 are registered, most others have started the registration process. There are approximately 20,000 children in such homes. Girls represent 54 percent of it. Eighty per cent of children in children’s homes have both their parents. Statistics suggest that these homes house mostly, not orphans but children whose parents have given them away for the sake of convenience. These are either abandoned or abused children, or children whose parents cannot support them. Those who run these homes are provided a meager Rs.20 per child per day by the state.

These children’s homes are often overcrowded and not properly supervised. The criteria for allocating children to such homes are vague and the children rarely move out of these institutions and placed with families although ideally a child should be placed with a family within three years of entering the system. The childcare system of Sri Lanka has worked based on the complaints they receive, with no emphasis on hard-core social work. It is merely a go-between the child and the courts. With only a limited number of personnel trained in real social work, it is merely a legal and organizational framework.

Although the National Child Protection Policy pledges to protect children by taking measures for the improvement of their mental and physical well-being, their mental wellbeing is hardly taken into consideration. The emphasis is still on the physical well-being of the child. A child exposed to domestic violence is at risk of becoming an addict or psychopath later in life, unless he or she receives psychological help. An institutional environment, where such a child’s mental health is all but neglected, would not be conducive to recovery. Such children require a steady, reliable attachment with a primary care giver. There is a dearth of personnel trained in counselling at children’s homes, competent to fulfill their psychological needs.

Although the National Child Protection Policy recommends a foster parenting system and an accompanying Foster Care Act, this has not yet come to pass.

Predicament of unmarried mother

Virginity is given utmost importance in deciding a woman’s dignity. Although premarital pregnancy is an increasing global phenomenon, due to a social environment that condemns pre-marital sex and single motherhood, Sri Lankan unmarried mothers resort to illegal abortions, abandoning their newborn babies in hospitals or dumping them in garbage bins. The use of contraceptive among the majority of unmarried couples is still low often due to lack of knowledge. Moreover, according to adoption law a pregnant woman cannot agree to give the child away for adoption.

According to the research titled ‘Unmarried women’s ways of facing single motherhood in Sri Lanka – a qualitative interview study’ by Malin Jordal, Kumudu Wijewardena and Pia Olsson, unmarried pregnancy was often a result of women not using contraceptives or attempting to prevent pregnancy, due to being unable to foresee the sexual act, being raped, having limited sexual knowledge, assuming the partner would take responsibility, hoping the pregnancy would lead to marriage, or not considering the possibility of becoming pregnant.

In order to circumnavigate the shame and stigma brought on by unmarried motherhood, such women opt for adoption, often under much duress. Especially, as adoption is often encouraged by family members, employers and friends. But poverty is no doubt the determining factor in giving one’s child up for adoption. As most unmarried women who get pregnant and opt to give their child up, do so due to lack of financial support. If the social stigma prevented the family’s support for the pregnancy it would mean that they would be forced to go back to work after delivery, leaving them with no support for aftercare.

Dilemma of single women

According to local adoption laws childlessness qualifies a couple for adoption. Moreover, unmarried single women cannot adopt as it is deemed that the care of both parents is vital for the development of a child. This may have applied to a time when the sole breadwinner of a family was the male, while the female stayed at home taking care of the children. But times have changed and both women and men are equally educated and are able to sustain themselves financially.

Demographically speaking, the female population of the country is currently 52 per cent. This calls for a redefinition of the whole concept of family as marriage prospects for women are thinning and for a certain percentage of women marriage may not become a reality for the simple fact that there won’t be enough men to marry.

In a society that still resents expression of affection in public and scorn premarital sex and stigmatizes unmarried motherhood, in vitro fertilization is a long way from gaining acceptance. This begs the question, is it fair to force economically stable and socially competent women to remain childless while parentless children are pining away in state homes. If the choice is between one parent or no parent at all, isn’t it in the child’s best interest to allow him or her to be adopted by a single parent?

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