Intercountry Adoption: Legal frameworks
by Elizabeth Willmott-Harrop
29 May 2012
Fifth International Policy Conference on the African Child
Intercountry Adoption: Alternatives and Controversies
29-30 May 2012, United Nations Conference Centre Addis Ababa, Ethiopia
Fact Sheet 2
Human rights sit at the heart of the current debate over intercountry adoption. The assessment of intercountry adoption in Africa therefore begins with international child rights law, comprising:
- Article 21 of the Convention on the Rights of the Child (CRC)
- Article 24 of the African Charter on the Rights and Welfare of the Child (ACRWC)
- The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Convention).
Other relevant instruments include the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (one of three “Palermo Protocols” supplementing the United Nations Convention against Transnational Organized Crime).
Best interests of the child
The three key instruments above refer to the principle of “the best interests of the child” and the majority of African countries have provided for this principle in legislation.
The following help promote the best interests of the child in adoptions:
- Efforts to combat the abduction, sale and trafficking of children, to ensure that a child is genuinely adoptable.
- Efforts to collect and preserve as much information as possible about the child’s origins, background, and medical history.
- Ensuring a matching that meets the needs of the child with the qualities of the adoptive parents and family.
- Proposals of adoptable children by countries of origin should be given priority over the requests of receiving countries.
Controversies around intercountry adoption and international human rights law
Despite the above legal instruments, a number of issues remain vague and controversial, such as:
- How to define and implement the best interests of the child in the context of intercountry adoption.
- The lack of definition of the term “adoptable” in the Hague Convention. The concept of “adoptable children” is not to be confused with that of “children currently in out-of-home care”, so children in institutions are not necessarily adoptable.
- Articles 21 (CRC) and 24 (ACRWC) outline best practise rather than specific rights and so need to be read in conjunction with relevant rights, such as the right against non-discrimination, the right to a name and identity.
Hence, opinions often differ about the practical implications of specific rights in the context of intercountry adoption, and the duties and responsibilities that correlate with these rights.
A measure of last resort
A clear and central theme explicitly backed by the provisions of the ACRWC, as well as statements of the CRC Committee, is that intercountry adoption should be used as a measure of last resort, with family-based, permanent and domestic solutions generally preferable.
This “principle of subsidiarity” in the context of intercountry adoption, entails that domestic solutions take precedence over international ones. So, while there may be some circumstances when intercountry adoption is in the best interests of the child, this can only be determined if and when all necessary steps have been taken to first try and secure appropriate care in the domestic country.
The wording of Article 21 of the CRC and Article 24 of the ACRWC contains no mandate requiring States to permit adoption, either nationally or internationally. Countries are therefore under no obligation to allow intercountry adoption as a means of alternative care.
Ill-equipped in law, policy and practice
The African continent is ill-equipped in law, policy and practice to provide its children with the necessary safeguards in respect of intercountry adoption. A number of out-dated laws exist in the area of adoption laws in Africa.
In addition, certain areas of child law and policy are less developed, such as in respect of child trafficking. Also, the enforcement of the general rule that parental rights and responsibilities cannot be relinquished in favour of anyone before the child is born is lacking in many African countries.
These legal contexts have a number of direct implications for intercountry adoption. Out-dated legislation and the absence of a sound regulatory framework mean:
- There are no arrangements to regulate and monitor intercountry adoption adequately. Compromising children’s best interests while undertaking intercountry adoption is likely and adoption can become a vast, profit-driven, industry with children as the commodity. There is often a shortage of sufficiently qualified professionals, institutional support, and good practices with regard to implementation of intercountry adoption policies and procedures. For instance South Africa, had a shortage of 17,000 social workers needed to fully implement the Children’s Act 38 of 2005.
- A lack of coordination of the implementation of children’s rights has negative implications for the collection of data. This would enable identification of discrimination and disparities in the realisation of rights.
Creating new legal frameworks
While new legal frameworks are developed, African countries should undertake intercountry adoption activities only to the extent that their capabilities, and the demands of the best interests of children in their jurisdiction, allow.
The Africanisation of child law demands:
Recognising and supporting the role of the extended family; Prioritising community based care as a form of alternative care; Facilitating kinship care; Providing a legal basis for supporting “informal adoptions” (also known as customary adoptions) when they are in the best interests of the child. In these cases, the child almost always maintains his contact with his family of origin, and legal termination of parental rights and responsibilities does not take place.
Where intercountry adoption is considered to be in the best interests of a specific child, every effort should be made to ensure that the whole system is about “finding a family for a child”, as opposed to “finding a child for a family”.