THE INTERCOUNTRY ADOPTION DEBATE IS OVER

Tuesday, July 07, 2015

THE INTERCOUNTRY ADOPTION DEBATE IS OVER

Despite what some may believe, the intercountry adoption debate is effectively over.

For years, the intercountry adoption (ICA) debate has involved a continuum involving three positions. One side, whom I will label the ICA cheerleaders, sees ICA as the best intervention for millions of children caught in destructive, dead-end situations with no adequate domestic solutions. Under the banner of “every child has a right to a family,” this position prioritizes ICA as often the only means of providing children living outside of parental care with a permanent family. The hope was there would routinely be hundreds of thousands of intercountry adoptions annually, such that there would no longer be “orphans” wasting away in orphanages or on the streets.

On the other side are the ICA opponents, who oppose any systemic practice of ICA as neo-colonialist exploitation which takes children from poor, usually non-white, vulnerable families and communities in developing and transition economies, and sends them to generally white, privileged families in rich nations. This perspectives emphasizes the child’s loss of family, community, culture, language, and nation. Some ICA opponents interpret the Convention on the Rights of the Child (CRC) as opposed to any systemic ICA practice, and as incompatible with the Hague Adoption Convention.

In the center, between the ICA cheerleaders and the ICA opponents, are a set of international standards harmonizing the Convention on the Rights of the Child, Hague Adoption Convention, and Alternative Care Guidelines. Under these harmonized and developing international standards, ICA may be an appropriate practice in the absence of available and appropriate domestic solutions for children bereft of parental care. The Hague Conference on Private International Law (HCCH), International Social Services (ISS), UNICEF, States (nations), and many NGOs have developed these international standards in order to reform international adoption into a safe system free of systemic illicit practices and compatible with human and children’s rights. Within these standards, poverty is not an adequate reason for ICA, and priority should be given to domestic solutions such as family preservation and re-unification and appropriate domestic solutions. Within the context of these international standards there is still disagreement about which domestic solutions are adequate, and how to balance building up domestic child welfare capacities with ICA practice and capacity.

The debate over these contrasting views of ICA is over because of changing contexts and events, rather than due to any success in one side persuading the others. While many on all sides remain just as committed to the rightness of their viewpoints, these disagreements now have little relevance for the present or immediate future of ICA. The most striking and important set of events is the sharp decline in ICA globally over the last decade. ICA globally has declined by almost two-thirds over the last decade, from a high of about 45,000 annually to about 16,000 annually. ICA to the United States has declined by more than 70% over a similar period, from a high of about 23,000 in 2004, to about 6,400 in FY 2014. [For global ICA statistics, the best source is Professor Peter Selman; U.S. statistics are available online from the U.S. Department of State.]

Given such small and declining numbers, it has become increasingly difficult to see ICA as either a global solution or global threat for the millions of vulnerable children and families around the world. Instead, ICA is increasingly an issue at the margins for those concerned with children globally, as a solution for a small number of primarily “special needs” children, defined generally as older children, children with various kinds of serious disabilities, and sibling groups. Even as to those categories of special needs children lacking parental care, ICA is practiced only as to a very small percentage, and in significant number only in a small number of nations.

Another key set of events has been the recurrent cycle of abuse, in which a nation will rise quickly in numbers as a source of children for ICA, only to be temporarily or permanently closed due to reports and scandals of illicit practices. Some proponents of ICA complain that the reports of illicit practices are sensationalized and exaggerated, while others (such as myself) argue that the illicit practices have often been systemic. Either way, the damage to ICA’s reputation due to such reports has been substantial, with impacted States closing temporarily or permanently, and other States reluctant to open to ICA due to concerns over illicit practices.

The debate is over because, at least for now, very few on any side of the debate actually believe that the numbers will rise substantially anytime in the foreseeable future. Instead, the infrastructure of agencies and organizations built around large-scale ICA are being dismantled. In the United States, perhaps as many as four hundred international adoption agencies have closed. One of the most symbolic signs of this decline in ICA numbers and agencies has been the announcement that the Joint Council on International Children’s Services (JCICS) was to close as of June 30th, 2015. At its most influential, JCICS could unapologetically be the primary voice and trade organizations for ICA agencies in the United States. Over the last years of decline, JCICS tried to re-invent itself as representing international children’s services generally, rather than ICA in particular. Its closure represents the difficulties of entities built around ICA becoming credible spokespersons and experts for children’s services beyond ICA.

To be clear, although I have been repeatedly characterized by some as an opponent of ICA, I represent the middle position of international standards. The attempts by some ICA cheerleaders to marginalize me, and their apparent frustration over the frequent use and acceptance of my own work internationally, is a small sign of the failed strategy and vision of the U.S. based ICA cheerleaders. In essence, many ICA cheerleaders lumped proponents of international standards together with ICA opponents. In essence, ICA cheerleaders tried to promote ICA while treating many of the most important actors and stakeholders involved in ICA as their enemies.

Indeed, the ICA movement in the last decade increasingly saw devils, obstacles, and opponents everywhere: in UNICEF, HCCH, the Hague Adoption Convention, human rights organizations, the U.S. State Department, most States of Origin, adoptee and first parent organizations, and academics such as myself. Such a strategy, while it created some short term gains, was destined to fail, for it sought to marginalize and sidestep groups and persons essential to any successful ICA system. ICA as a lawful system requires international actors such as States, international organizations and NGOs, for you literally cannot do lawful ICA without both States of Origin and Receiving States acting, and organizations like UNICEF, HCCH, ISS, and significant NGOs and human rights actors are a part of the fabric, context, and connections of international society. ICA cannot function effectively by marginalizing the adoptees who are its purported beneficiaries. ICA could never be successful by trying to slay messengers (such as myself) who have served in effect as whistle-blowers about illicit practices, for without proper intelligence about what was going wrong on the ground the system becomes incapable of effective self-correction.

Many ICA cheerleaders treated virtually anyone who clouded the simplistic savior narrative of ICA as an opponent and subject to marginalization, shaming, and silencing, with the result that proponents lost touch with reality and with the capacity to create a sustainable ICA system. Instead, the ICA movement within the USA created an echo-chamber of powerful actors, including some within the government and legislature, the Congressional Coalition on Adoption Institute, JCICS, ICA agencies, the National Council for Adoption (NCFA), the Center for Adoption Policy, the Christian Alliance for Orphans (CAFO), and Together for Adoption. These individuals and groups constantly consulted with one another but engaged with most others in the adoption communities as though they were outsiders or enemies. Perhaps the underlying glue that bound these groups together, at least in the United States, was an implicit alliance between adoption agencies, prospective adoptive parents (PAPs), and adoptive parents (APs). While of course some agencies and some adoptive parents (such as myself) dissented, the ICA cheerleading movement was largely built upon the synergy and worldview generated by agencies, PAPS, and APs. Innumerable e-mail and social media groups dominated by agencies, PAPs, and APs both promulgated the ICA cheerleading orthodoxy, and silenced and shamed dissenters.

Certainly some within these groups in the last years attempted to open up broader dialogues---I credit particularly Tom DiFilipo of JCICS and Jedd Medefind of CAFO, among others. Nonetheless, the ICA cheerleaders as a movement never sufficiently differentiated between the broad middle that saw ICA through the lens of the developing international standards, and those who were ideologically opposed to any systemic practice of ICA. Thus, the ICA cheerleaders never succeeded in treating the critical middle as truly equal partners, nor the international system as an indispensable means for reforming and sustaining ICA practice. More deeply, the ICA movement never was willing to look at the evidence sufficiently to question its presupposition that illicit practices were a mostly insignificant distraction from the noble purpose of rescuing children. The close connections between ICA cheerleaders and agencies made their movement in effect a lobbying arm of the agencies. In that context, the aversion of most agencies to strict rules on finances and accountability became in effect the position of ICA cheerleaders, with disastrous consequences for ICA practice in many vulnerable nations such as Guatemala, Nepal, Ethiopia, DRC (Congo), and Uganda.

Perhaps the U.S. adoption movement believed it had the power to enforce its will on the world, in defiance of the basic structures of international relations and law. If so, that hubris has been proven false. One of the final nails in that coffin was the failure of the proposed Children in Families First (CHIFF) legislation, along with the failure of Senator Mary Landrieu of Louisiana, its most important advocate, to win re-election in 2014. CHIFF seemed to be an attempt to both inject new federal money into ICA agencies in the U.S. in order to sustain their survival, and to force other nations to classify millions of children as eligible for ICA in defiance of international standards for adoptability. The desperate hope that the U.S. could force open international access to children around the world through mere domestic legislation, in defiance of developments in international law and society, shows the mindset of the movement as bent to practice ICA despite, rather than through, the structures of international law and governance.

Indeed, the international context for ICA makes it increasingly unlikely that the U.S. would or could attempt to impose its will in the manner envisioned by CHIFF. For me, this was made even clearer by the recent Special Commission on the Practical Operation of the Hague Adoption Convention, held in June of this year. The event is facilitated approximately every five years by HCCH, and is a diplomatic meeting of governments, with some representation of international organizations. There were approximately seventy nations represented in 2015. I have been honored in the last two Special Commissions (2015 and 2010) to participate as an Independent Expert/Observer, and each time was honored with the opportunity to make a presentation on illicit practices. Having observed these last two Special Commissions, I was impressed by the growing self-confidence of the States of Origin. Increasingly, they seem to be cooperating among themselves, particularly in regional blocks, in helping one another to implement improved practices according to both international standards and their own national and regional cultures and perspectives. Increasingly, States of Origin seem willing to assert themselves and their own perspectives and concerns, rather than deferring to Receiving States or others. While the United States is certainly a very important actor which advocates its positions eloquently and effectively, the United States is certainly not in a position to dictate, even if that were its policy (which, I presume, it is not). The United States instead effectively works cooperatively with other governments and with the Permanent Bureau of HCCH. HCCH itself carefully facilitates discussions among the Receiving States and States of Origin, seeking consensus.

The dream of CHIFF, that a single act of legislation by the United States Congress could force the United States government to somehow dictate definitions and practices regarding which children are deemed eligible for ICA globally, contrary to current international standards, makes no sense within this global context of international law and cooperation. Of course such an attempt would validate the views of those who see in ICA a neo-colonialist project, and hence radically increase opposition to ICA globally. The fact that so many ICA cheerleaders, as recently as last year, were committed to CHIFF, shows the failure of the movement to comprehend the global situation of ICA, and the proper place of U.S.-based adoption proponents within that situation.

So the ICA debate is over, not because one side has persuaded another, but because of how events in the world have overtaken the debate. The ICA cheerleaders have failed by their own criteria---the numbers of international adoptions---and have no credible plan to reverse that failure. Instead, many of the organizations and people who were central to the movement have dissolved, left, or are re-structuring/repurposing. Of course the failure of one side does not mean that the other sides have won. In this instance, it means rather that the situation has been profoundly altered, and the terms of future debate and development altered.

The question is, what comes next? The end of the debate is not the end for the millions of people personally impacted by ICA, for adoption changes lives forever. The end of the debate is not the end for those who have devoted years, or decades, to ICA, regardless of their perspective on it. The end of the debate is not the end for ICA practice, which continues, even if at much reduced numbers. The end of the debate is not the end for the countries still in the grip of recent and current crises over illicit practices, such as Ethiopia, DRC, and Uganda. The end of the debate is not the end for efforts to assist the millions of vulnerable children and families around the world. Hence, what comes next will be the subject of a future post.

David M. Smolin

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