International Adoption and the Principle of Subsidiarity
The US annually conducts the largest number of domestic and in-bound intercountry adoptions of any country in the world. In 2008, approximately 150,000 children were adopted in, or to, the US. (en.wikipedia.org/wiki/Adoption) However, there are 129,000 children with no permanent solutions languishing in our public child welfare system, and 24,000 children age out of care annually. (Youth Aging Out of Foster Care: Identifying Strategies and Best Practices: NACO, February 2008) It is essential that we take a hard look at our domestic and intercountry adoption practices to ensure that everything is being done to promote solutions that protect the permanency, safety, and well-being of all children. This requires that the principle of subsidiarity be at the center of all discussions about best practices in child welfare.
The principle of subsidiarity, as applied to child welfare, states that it is in the best interest of children to be raised by family or kin. If immediate family/kin is unable, or unavailable, domestic placement with a foster or adoptive family is the next best option. Finally, if neither of these alternatives is viable, then permanent placement with an appropriate family in another country through intercountry adoption is best.
This article describes the origin of the principle of subsidiarity, discusses the two multilateral treaties that include language about the principle, and explores what subsidiarity means for the practice of child welfare in America.
The principle of subsidiarity was the result of a landmark judgment: Laxmikant Pandey v. Union of India in 1984. The Supreme Court of India found that preference must be given to finding homes in India for orphaned children before considering intercountry adoption. Supreme Court lawyer Laxmikant Pandey initiated this case. Pandey wanted to alert the judiciary to alleged fraudulent practices and illegalities involving intercountry adoptions. He petitioned the government to investigate current practices and develop standards for when it is appropriate for Indian children to be adopted by foreigners. The decision reflected a revolutionary approach to intercountry adoptions. It would be another five years before the principle was present in multilateral treaties. (http://csa.org.in/SC1984Feb06.htm).
The principle of subsidiarity was introduced in 1986, in the UN “Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children with Special Reference to Foster Placement Nationally and Internationally.” Article 17 states: “If a child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the country of origin, intercountry adoption may be considered as an alternative means of providing the child with a family.” In 1989, Article 21(b) of the United Nations Convention on the Rights of the Child stated, “Intercountry adoption may be considered as an alternative means of child’s 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.” The US has signed, but not ratified, this treaty.
In 1993, a text regarding the principle of subsidiarity was included in the Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption (THC-93). The preamble of the THC-93 was drafted to emphasize the benefits of a permanent solution for the child: first domestically, and then internationally. Specifically 4(b) THC-93 states “an adoption within the scope of the convention shall take place only if the competent authorities of the state of origin have determined, after possibilities for placement of the child within the state of origin have been given due consideration, that an intercountry adoption is in the child’s best interests.” The US ratified this treaty on April 1, 2008. (International Reference Centre for the Rights of Children Deprived of their Family (ISS/IRC) Monthly Review N° 3-4/2009 March-April 2009: 4)
The principle of subsidiarity has serious implications for child welfare practice in the US. If we fully adhered to this principle then we would expect that the number of permanent solutions for children in the US should be increasing and the number of inbound intercountry adoptions should be decreasing. Also, the number of outbound intercountry adoptions should be increased only if permanent solutions cannot be found within the US. Unfortunately, this is not the case. A number of barriers still exist that preclude this ideal outcome.
First, finding and evaluating families/kin is still a challenge, particularly when inter-jurisdictional issues are involved. The implementation of the Fostering Connections Act may alleviate some of these problems. However, there are real budget, resource, and technical constraints that make this an ongoing challenge. We must work harder to find more families and place more children with them.
Second, concerns about the placement of US children across the state and international borders sometimes prevent creative solutions to permanency: Fear, prejudice and negative stereotypes are obvious barriers to placing children with kin or adoptive parents in other jurisdictions. There must be a radical shift in attitude in order to embrace a definition of permanency that includes families, kin, and adoptive families across state and international borders. We can increase the number of domestic children placed in permanent homes by thinking outside the box—and beyond our borders.
Third, negative attitudes about domestic adoptions still have many families turning to intercountry adoption. We must encourage families to adopt domestically. In order to find more domestic permanency solutions, there needs to be a decrease in intercountry adoptions and more incentives and encouragement to adopt domestically. The ratification of the Convention on Intercountry Adoption by the US will begin to combat the first barrier. The second will only be eliminated through an increased commitment on the part of federal, state, and local government and private agencies to support domestic adoption.
The principle of subsidiarity has a direct bearing on our goal to find more domestic permanency options for children. However, there must be shifts in thinking and practice to make this happen.
Editor’s Note: Julie G. Rosicky has been working in the child welfare field for the past 20 years as a child/adolescent therapist, a CASA volunteer, and an alternative dispute resolution center director. Her passion for international work is inspired by her experiences working with Native Americans, refugees, and immigrants in upstate NY.
Felicity Sackville Northcott is an anthropologist by training. She comes to ISS-USA after 20 years of teaching, conducting field research, and running institutes at Johns Hopkins University.