Playing by the Rules

What the Hague Convention says about transnational adoption.

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Intercountry adoptions are accompanied by a host of complicated legal issues. When an American adopts a child from Guatemala, whose laws apply? And how can everyone be sure that a baby hasn’t been stolen from her mother? These matters were addressed in 1993 by the Hague Convention on Intercountry Adoption, which established a set of ground rules that all member countries must follow. The rules are designed to ensure that adoptions are ethical, and also that they are recognized by the nations that have joined the Convention.

The U.S. signed on in 1994, but is only now about to “join,” which entails implementing the Convention’s requirements. The thirteen-year delay can be blamed on legislative inertia and a long stripe of bureaucratic red tape. In 2000, Congress passed and President Clinton signed a bill called the Intercountry Adoption Act (or IAA), which designated the State Department as the Hague-mandated “central authority,” responsible for compliance, record keeping, and statistical reporting. The State Department has averred that the United States will be up to speed by the end of the year.

Controversy surrounding the Convention and the attendant IAA has been fierce. One point of contention is a requirement that anyone overseeing an intercountry adoption hold a master’s degree in social work, a rule that necessarily disqualifies a good number of experienced caseworkers. Another objection comes from small American adoption agencies, which argue that stringent new regulations oblige them to purchase additional insurance, thereby forcing them to raise their fees and potentially driving them out of business.

Adoption agencies are not alone in finding fault with the Convention. Critics claim that requirements for increased bureaucracy unfairly burden the so-called “giving” countries and some, such as Russia and South Korea, have declined to join. Given that there often exists a cultural hostility toward adoption by non-relatives or foreigners, “taking” countries are concerned that nations like China, Russia, and South Korea will turn their efforts toward raising orphans and opt out of the adoption apparatus altogether.

Overall, however, it seems that the Convention will be a net gain for potential adoptive parents in the United States. Countries like Mexico and Brazil, which are Hague members, generally only allow adoptions to other member countries. Once the United States is up to speed, children from those nations will become more readily available to Americans. Children from non-member countries will continue to be available also; a curious loophole in the Convention allows member states to adopt from non-members. Guatemala, however, a popular adoption spot for Americans, may become off-limits. Because Guatemala is a Hague member that currently does not meet the Convention’s standards, the U.S. likely will face serious pressure to cancel all Guatemalan adoptions.

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