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Mona Abe: Hello, everyone. Welcome to an episode of The Low of the Land produced by the Columbia Undergraduate Law Review. I am Mona Abe, a sophomore at Columbia University, and today we will be navigating the paradox of international adoption. International adoption is the process through which children from one nation are adopted from parents from another nation. The practice became popular after World War II, with many children from countries such as China and Guatemala being adopted by people in the United States. Though the practice of international adoption helps children have the right to a family as promised in Article 19 of the International Convention of the Rights of the Child, there have been an increasing number of trafficking cases due to an unorganized administrative framework, which has led to the termination of the practice in many countries, leaving many children institutionalized or in limbo regarding their citizenship status, which denies them access to social protection. In order to diminish illegitimate adoption, The Hague Convention on the Protection of Children and Cooperation in respect of inter-country adoption, or the Hague adoption convention, was adopted in 1993, which established a lengthy, uniform legal process with numerous verification steps for international adoption. This convention, which has been intended to be a safeguard, has become a barrier to the process and the satisfaction of the best interests of the child for many due to strict procedural compliance and the legal inconsistencies, and now we have this paradox of international adoption, through which we must find a way out to ensure the prevention of exploitation while allowing more children to be safely adopted into permanent home. We have with us today Professor Barozzo, law professor at Boston College and member of the International Adoption Strategy Group at Harvard to discuss the legal complexities of adoption, the dilemma between strict compliance and the best interest of the child and jurisdictional conflict.
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Abe: Thank you so much for being here. I'm really excited to talk to you today.
Paulo Barrozo, Boston College Law: Thank you, Mona. I appreciate the invitation.
Abe: Okay, so we will be getting into the questions. So first of all, we want to discuss, what is the significance of navigating the legal process of international adoption? Why is the practice important, and what are the challenges that the issue is facing?
Barrozo: I think the starting point would be to recognize that, depending on whose numbers you are looking at, that there are tens of millions of unparented children in the world. That is, children who are growing up without the experience of being the child of a parent. So this is the greatest unrecognized human rights and humanitarian crisis of all time. So I think if we start from the premise of these facts on the ground, we are on a firmer basis to think about what we should do about it.
Abe: Would you say are the factors that have led to this increase, and why do you think the amount of children who are unparented are confined, oftentimes in specific areas rather than others?
Barrozo: So areas that are where there are conflicts, ongoing war, civil war, external war, areas where there is sort of massive population dislocation-- these are circumstances, tragic circumstances that increase the number of children who are unparented. But unparented children are all over the world, in every country, because there are parents who are unwilling or unable to raise them because parents die. So there are unparented children all over the world with sort of special concentration in areas where there is some natural or human-created tragic event that aggravate this situation.
Abe: What would you say are the challenges of international adoption?
Barrozo: So there is the overall challenge for these children to be able to grow up as the son or the daughter of a parent, is to have access to the institution of adoption, or the equivalent in the various legal systems of the world. Now the challenge there is that in many circumstances, there are not enough adopting parents. In many circumstances, there are bureaucratic hurdles that are unnecessary.
Abe: Could you give us an example?
Barrozo: I think an example of a, of a hurdle that is unnecessary is to create the requirement that a child be held unparented for extended periods of time, to make sure there is no one of the same nationality able to adopt a child. So I think we should change the paradigm. Instead of thinking of children as material resources, of countries as pawns in the political game of national pride, we should think of those children that are affected by this the largest unrecognized humanitarian human rights crisis of all time, to make sure that they are unified with those who will be their parents as soon as possible. So if you change the paradigm and think about it this way, that this is a human rights humanitarian crisis, that the children who are impaired are the victims of those crisis, and then the next question is, what all states in the world should do to address that crisis, and what they should do is to facilitate access to the institution of adoption so that children can be unified with those who will be their parents. So there is the way of doing this within the jurisdiction of the countries, and there is a way of doing this across country jurisdictions, when the child who is looking for a parent and a parent who is looking for a son or daughter reside in different countries. When that is the case, there is a treaty called the Hague Convention on International Adoption that is followed by the very many state parties to it. It now predominates the regulation of what happens when the adopting parent and adoptee are residing in different countries.
Now, this treaty needs to be interpreted as a human rights humanitarian treaty, because that's not how it was conceived, Mona. The Hague Convention was conceived as a border control, human resources control treaty to give the states control over the children that are in their territory, but it can be reinterpreted as a human rights treaty. You know, there is a good example from American law-- the 14th Amendment to the Constitution of the United States was enacted in 1868. During the first 100 Years of that, of that amendment, it did very little to help Black Americans in the Jim Crow, did very little to help women in the United States, individuals with disabilities in the United States, but, but that changed. And the change was not in the letter of the 14th Amendment, which did not change. The change was in the legal consciousness that interpreted the 14th Amendment as a Human Rights Amendment as of the of the Constitution that had a broad mandate to address a series of injustices and inequalities that remained invisible or unaddressed up to that point. I think that should be our approach to the Hague Convention on International Adoption. It was conceived as a human resources control on the part of states, but it should be reinterpreted as a human rights humanitarian treaty, and if it is reinterpreted as human rights humanitarian treaty, there is a lot of potential in the Hague Convention to become the instrument whereby children and parents are united across the globe so that the kids have a chance to grow up with parents when if they are unparented.
Abe: So are you saying that the Hague Convention currently is a double edged sword? So always do you think that it ensures protection against child sex trafficking, or do you think it's more leaning towards hindering the process of international adoption and leaving them institutionalized? Do you think the Hague Convention does more good than harm?
Barrozo: I think the Hague Convention’s tenure has correlated with a decrease in the ability to address the human rights humanitarian crisis of unparented children. It has caused part of it, but it has not caused all of it. Now you ask a very good question, when questions are good as this, it requires us to take a step back to the basics.
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Barrozo: So right now, how do legal systems assign parenthood? I mean, assign a child to a parent. Usually, the child is assigned to a parent at the moment of birth, it's assigned to the to the mother who gives birth, if and and usually to a father as well, if the father is married to the mother. But there are other mechanisms that vary a little bit from jurisdiction jurisdictions to help to assign parents to children, right? So there is no control in, in almost all states as to who can become a parent that way, by biological reproduction.
Abe: Are you seeing this in the sense of within a sovereign state, or in the international society?
Barrozo: Within sovereign states, there is no control over can, who can become a parent. So in the United States, for example, any person of reproductive age, who is, say, at the age of consent, can decide to parent, and there is no control in the part of the state about whether that person is prepared to be a parent, whether that person would be a good parent, whether that person has been a bad parent in the past, even whether that person has killed their previous children in the past. So there is no such control. So as a result, we have, every year, 10s of 1000s of cases of neglect and abuse by biological, presumed biological parents. What the state does is the following: you could imagine that the state would, in light of that, say no more biological production until those interested receive some background check or pass some parenting educational program and try to save lives of children by making sure people who are unable to parent well, do not become parents. The state does not do that, although every year there are 10s of 1000s of cases of neglect, abuse and very serious abuse on the, on the part of the parents that were first assigned to children. The state does not foreclose biological production.
Abe: So you're saying that the issue of international adoption lies not only in, in the adoption, but also the conception of parenthood itself and child custody.
Barrozo: So I, I think we, we, we, we treat the kids who are parented in a way that is that we do not used to treat children who are parented, and we treat people who we who reproduce biologically in a different way that we treat people who want to become parents through adoption. So I'm telling you that there are every-- just in the United States, and it in the it's highly underreported-- but just reported cases are several 1000 of cases of abuse by parents every in the United States in light of that, and there are some of their abuses, sexual abuse, some that of their abuses is exploitation or the prostitution of one's own children. So in light of that, we do not close down biological reproduction. So we decide to let the legal system operate: if there is any misconduct, we hope the legal system will become aware of the misconduct, and we will act to address the problem. But when it comes to adoption, although it's the largest unrecognized humanitarian human rights crisis, it seems to be the case that we require proof complete that never any misdeed is going to occur. Unless we have proof that no misdeed is going to occur, no adoption is going to take place. We don't do that with other children in society. We allow anyone who is in the age of consent to reproduce at will, regardless of whether they are prepared to be parents, regardless of the evidence of the record of being a bad parent in the past of other children. We make no prohibition. So I say that if you want to have a different type of standard for adoption and require proof that they were never, ever going to be a problem, I think that that reveals more prejudice against adoption than concern for children. Whereas, if there were concern for children at that level, it would require those who are engaged in biological reproduction to pass background tests, would require that they take educational courses on to how to parent, and we do not do that.
Abe: You do think that the issue here is the right of the parent is more prioritized than the child, especially domestically. If the parent has the right to have custody over the child, it's difficult to strip away that right. And do you think that also connects to the issue in international adoption? In international adoption, the children up for adoption does not have a correlating parent that has a right over them. So like you said, there's a difference between, for example, domestically, you can allow any parent to have a child, and if you give birth to that child, you have parental rights automatically. But in international adoption, unless you go through a scrutinized screening process, it's difficult for an adoption to be finalized.
Barrozo: I think, I think the scrutinizing screening process for adoption is fine. If anything, I wish there was more of that for biological reproduction. But the point I was making was related to the concern that you raise of use of international adoption for sexual trafficking of children. Now, the guardrails for adoption-- domestic and international-- as such that it would be very unlikely that anyone would use that mechanism to engage in sex trafficking, because there will be a record of who that person is, there will be background check so the oversight that the state plays, exercises, on who is eligible and who is suitable for adoption is quite extensive. So there are many other mechanisms that human trafficking criminal organizations use that would not subject them to the same level of state attention scrutiny. But what I was calling attention to is the prejudice against adoption. Against adoption, because if there were a case of adoption where something illegal happened, people rush to call for a freeze in adoptions, international adoptions, people rush to call for a termination of the practice of international adoption, and then the largest human rights humanitarian crisis of all time is not addressed, because people require a perfect, faultless system where no illegality occurs. There is-- there is prejudice against adoption. It's not concerned for children because if they were concerned for children, people would be advocating for domestically biological reproduction to be subject to the same level of scrutiny as adoption, international adoption is.
Abe: Where do you think the prejudice against adoption comes from?
Barrozo: It has millennia of history, Mona, millennia of history.
Abe: Is it because it’s transracial?
Barrozo: It can be, can have that dimension. But it was also because of the stigma of children born out of wedlock, the stigma of couples that were afraid of being perceived as not able to reproduce. But the prejudice against adoption keeps reinventing itself. In different ages, it has different motivations. I think the prejudice against adoption in our own time has to do with a view that human beings are fundamentally hardware on which to download some cultural software.
Let me explain what I mean here.You could see children as full fledged persons who are full fledged subjects of rights and who should have a fighting chance of living a safe, secure, fulfilling life. If that is the case, they are not property of any culture, of any political system, of any class, of any religion. They come to the world, there is a world around them. If they come to the world, and they have at least one parent that is willing and capable of parenting them, they will be parented by that person. But there are millions of cases of children who do not have one such parent because the parent is unwilling or unable to care for the child, then what do we do? So we should look for the first available good parent for that child with a good match and unite them. So we should be in the project of family unification to address this largest humanitarian human right cries of our time. Instead, quite often, we get caught up in this idea that the role of a child is to serve as the hardware on which a particular kind of culture is to be downloaded. And if that child is transferred out of that culture, that culture is losing a hardware on which to be run. So what happens here is that children are instrumentalized to serve as carriers of particular national identity or cultural identity, or religious identity or racial identity. And so this is the way in which, contemporaneously, the practice against adoption manifests itself as this instrumentalization of children who are re-signified as carriers of culture, political identity, religious identity, etc.
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Abe: So international adoption from the country that the children are being adopted from, it seems like they're giving their culture away. Is that what this is from?
Barrozo: Yes, quite often the view is that when a particular culture or a particular country sees a child being reunited through adoption with a parent that resides outside the country or who is not of the same culture, the view is that that is a loss, that culture, the culture is losing the child, and the child will not be a carrier of that culture, carrier of that national identity as when they become the children of their parents, and then the view is, no, let's hold on to them so that we use them to carry the national identity, the religious identity, the cultural identity, etc. So that is, that is in the paradigm that presides over the Hague convention. The Hague convention began as a border control, material resources control, and that material resources we control is, is the children, and that is how it's being interpreted so far. And there is a decline in the number of children placed in adoption worldwide because in part of that so but if we are serious about children being full fled subjects of rights, cognizant that the predicament of the unparented is the largest unrecognized human rights humanitarian fights of all time, just on the base of the number of the children that are impacted by parenthood. Then cognizant of that, we should reinterpret the Hague Convention as a human rights treaty, and use it to multiply the number of family unifications across border, to multiply the number of children and parents meeting each other across border and not holding on to kids as if they were just hardware on which countries, cultures, religion, ethnicities, want to download themselves, because that is not that is an instrumentalization of the children that is incompatible with thinking about them as an equal, full fledged subject of human rights like you and me.
Abe: You mentioned that there's a decline in international adoption and it's true. A lot of countries have been shutting down their international adoptions. So I was wondering, are there any measures taken to help children caught in limbo of the process, so they were in the midst of going through the adoption process. But for example, China, last year, shut down their system. Like, what happens to these children that are in the midst of the process?
Barrozo: So when, when adoption across borders is foreclosed, then the children who are unparented can only rely on adoption by parents who are residing in that country.
Abe: So they would go back to the people who initially had their parental rights?
Barrozo: No, they just stay where they were with the status that they had. So children who are available for adoption are no longer in a parent child relationship. What you're calling parental rights, which I would prefer to call parental status, has been removed so they are unparented. They have no parents.
Abe: So they remain unparented?
Barrozo: The only way to become a son or daughter is through adoption, or the adoption equivalent in certain legal systems, unless, when the person is unparented, unless they are adopted, they are never going to be a son or daughter. They will stay in institutions. They will stay in the care of whomever they are in the care of, but they're not going to be a son or daughter in a home.
Abe: So even if they were promised that they would be adopted from a specific family, if the adoption policy in that country shuts down before the process is completed, they would most likely be institutionalized again?
Barrozo: They will stay where they were. And of course, you could think, well, if, if countries or cultures or ethnicities or religion will pause adoption across border, across culture, cross ethnicity. If, if they are serious about this, they should, the next step would be a vibrant campaign to make adoption central in that, in that country, in that culture, in that ethnicity. But we don't see that movement quite often. So we see a movement to oppose adoption across borders, without the equivalent effort to create a movement to make adoption more popular within that country, for example, right? If it resulted, kids remain where they were.
Abe: I guess it's difficult to navigate this paradox of international adoption, where there are concerns about whether or not the practice is carried out ethically, and also the efforts to allow children to grow up in a permanent home. But how do you think that we can balance this strict procedural compliance that interests legitimacy with the child's best interest at the moment, like, for example, preventing the delay and denial of the adoption?
Barrozo: I think the only principle position to take on this is to say that this concern is legitimate, but the way it manifests itself is just adoption prejudice, because there are many more instances of abuse and neglect by the other biological parents in every country than there are abuses and in international adoption. But no country is closing down biological reproduction.
They rely on the legal system to catch those abuses and to address those abuses. That should be our approach to adoption as well. We should not-- we should not have prejudice in relation to adoption and require a purism, require a faultlessness, require perfection of adoption that we do not require in any other means of assignment of parent to child and child parent. So the principal way to look at this is, if we are gonna address abuse and neglect, we address it x until next post. That is, we take measures to prevent people who are not able to be parents become parents, and once a child is in a parent child relationship, the legal system has mechanisms to protect that child from neglect and abuse. So for example, homeschooling where the child is never seen by a teacher or pediatrician and the child is vulnerable to abuse and neglect are never going to be detected. People should be very worried about that. People should be very worried about allowing parents who already abuse and sometimes killed children that they had before that they are able to again have children. So if you're going to be principled about this, we cannot single out adoption and say in the realm of adoption, it has to be perfection, but every other way of becoming a parent that's free for all, it doesn't matter, because if we make that distinction, that is not principle, that is just prejudice against adoption as a way to unify a child with a parent.
Abe: In the beginning, you mentioned that the interpretation of the Hague Conventions need to change. So do you think that diminishing this prejudice against it would help change the interpretation of the convention?
Barrozo: A small change in the way we interpret the convention could, could save the lives of potentially hundreds of 1000s, of millions of children who are unparented. So right now, the interpretation is, let's make sure that no adoption occurs that has even a small risk of some record mistake or some misdeed in the process of adoption. So let's make sure that no adoption occurs that we cannot guarantee is perfectly pure. The result is where in life, can have that level of guarantee, if we were to just change it a little bit and say the largest humanitarian human rights cries of all time is a predicament of unparented children. The way to address it is to get them, as sons and daughters, into good families. There is a treaty that allows us to tap the larger global pool of winning parents and unify children with parents domestically and across borders and you're going to use the Hague Convention to facilitate that, to energize adoption, to multiply the number of adoptions, to take as many kids out of the condition of unparenthood and unify them with those who will be their parents for the rest of their lives. If we just do a little bit of a change in the paradigm, instead of seeing the Hague Convention as a demand on perfection and as a mechanism for control of children instrumentalized as hardware on which to run softwares, and we see it as a human rights treaty that will allow children to be unified with those who will be their parents across the globe, I think the treaty would serve as a conduit for that global family unification, rather than being as it is now an obstacle that keeps children on the streets, in institutions, in an existential limbo, living foster care or foster care equivalent throughout their lives. A little change in the way we look at the treaty like we change the way we look at the 14th Amendment to United States, right? The letter, the words of the amendment have not changed. What changed is what we make of it. So the we don't even need to change the words of the Hague convention, we just need to look at it as a human rights treaty, rather than a borders control, material resources control that instrumentalizes kids and keeps them on streets, in institutions in existential limbo, instead of unifying them with those who will be their parents across the globe. It’s a much better view. It's a much better ideal, I think, to think about this family unification across the globe, across race, across culture, across religion, across borders, it's a much more promising and emancipatory view that takes seriously the human rights of children, than to use the treaty as this border control, material resource control mechanism that aggravates the greatest human rights and humanitarian crisis of our time.
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Abe: Thank you so much for all of your insights.
Barrozo: Thank you for paying attention to this. It's kids that are the most vulnerable and those with the least voice in the world. So thank you for paying attention to this.
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Edited by Sofia Lebitasy