Irregularities in transnational adoptions and child appropriations: Challenges for reparation practices

Abstract

Transnational adoption is a global movement of children across borders to new permanent and irreversible legal relationships. It is a circulation that involves social, economic, cultural and political relations marked by geographies of inequalities of power on a global scale. Many of these circulations have been shrouded by illicit practices which mean the violation of child rights. This special issue of the journal Childhood examines individual, social and political narratives on illicit processes surrounding this practice. Drawing from social and political sciences research, the contributors of this collection show the contradiction between ‘silences’ around certain practices in some societies, while in others ‘truth recovery’ has been central to the transition towards democracy. The authors raise concerns about policies and practices that complicate the interests and rights of individual actors.

Keywords

Irregularities transnational adoptions child appropriations reparation practices childhood

Introduction

This Special Issue is interested in the ‘irregularities’ and reparation practices of transnational adoptions and child appropriations across the globe. It is a timely interdisciplinary collection of essays that addresses transnational adoption as a topic of global interest. Building on the work of social and political scientists, the special issue wishes to contribute to making adoptions that respond to bad practices more visible. Authors examine historical and geographic contexts of illegal adoptions and appropriations and the role of public secrets, missing and stolen babies and children; they also highlight cases where illegal adoption or false identities were discovered. Several articles contain examples of good reparation practices for victims and how to build new reconciliation conditions. The special issue proposes exploring new paths of social justice to repair the damage that irregular adoptions have caused among adopted persons and their families and to guarantee that adoptions are carried out exclusively in the best interests of the child or adolescent.

Transnational adoptions gained visibility with the humanitarian reactions towards ‘orphans’ resulting from the Korean War (1950–1953) and the War of Vietnam (1955–1975), who were mixed-race children born out of Korean/Vietnamese women and foreign soldiers. In both countries, children were placed for intercountry adoption because domestic adoption of mixed-race persons was discouraged. Later, in the 1970s, upheavals due to civil or ‘dirty’ wars in Latin American countries fuelled transnational adoptions (Briggs and Marre, 2009; Salvo Agoglia and Alfaro Monsalve, 2019). Moreover, mainly since the 1990s, as a consequence of global inequalities and endemic poverty, the phenomenon has been mostly explained in terms of ‘charity’, salvationism, and rescue, whereby ‘poor’ countries and families are imagined as ‘unsuitable’ for children and transnational adoption is seen as the best alternative for all parties.

The expansion of transnational adoptions from the so-called ‘Third World’ to Western families was surrounded by illicit transfers of children and corruption in the protection systems. This led to the inclusion of Article 21 that provides a regulatory framework for adoption and intercountry adoption in the Convention on the Rights of the Child (hereinafter, CRC) in 1989 and the drafting of the Hague Convention on Intercountry Adoption in 1993 (hereinafter, HCCH). Both instruments constitute the international legal framework on which the ratifying countries should base their legislation and procedures related to childhood and adoption. However, there are no clear mechanisms that channel irregular practices and the violation of human rights in transnational adoptions. Although the CRC and the significant changes that occurred since 1993 have been criticised by pro-adoption activists who feel that the rules are far too stringent, a majority of experts agree that international regulation is necessary to address illicit adoption practices (Ballard et al., 2015; Briggs and Marre, 2009). As some authors in this issue suggest (e.g. San Román, Monico and Cheney), this requires political, legislative and procedural reforms at international and local scales, to reduce the loopholes and foreground the importance of constructing a better child protection system.

Illicit practices have been documented and analysed in all countries where (transnational) adoption exists¹. Children’s rights organisations have analysed the abuses and ‘grey zones’ of intercountry adoptions as practices involving serious irregularities and violations of the rights of children and their families of origin (Baglietto et al., 2016; Boéchat and Fuentes, 2012; UNICEF and Terres des Hommes, 2008). However, there is still some knowledge and research gap concerning this topic. This Special Issue attempts to fill in this gap by fostering new insights and dialogues across disciplines and geographies. The collection describes the impact of illicit practices in the victims’ lives, their claims, and identifying practices and examples of justice and reparation.

Meaning and Complexities

Associating transnational adoptions with ‘appropriation’, ‘trafficking’ and ‘selling’ has generated intense social and political debates. One of the major concerns is that there are many forms of abuse and appropriations in the process of adoption. Not all of them are accurately classified as ‘child trafficking’. Roby and Brown (2015) highlighted five lines of thought towards appropriation, depending on the degree of ‘exploitation’ and the meaning of this latter concept in each situation. They displayed a diversity of perspectives and opinions ranging from ideas such as ‘if there is no exploitation in the receiving family, it would not be trafficking’ (Bartholet, 2007; Cantwell, 2005) to adoption being exploitative in its core (Hübinette, 2005).

The perspective that ‘illegal adoption’ as such can be characterised as trafficking in persons can be based on the text of Article 21 of the CRC, as well as on the 1993 Hague Convention (HCCH, 1993), which does not seem to require exploitation as a purpose (Baglietto et al., 2016). The complexity of finding a definition was discussed during the International Forum on International Adoption and Global Surrogacy, held in The Hague, in which one of the thematic areas was on force, fraud and coercion (Cheney, 2014). According to the Palermo Protocol (UN, 2000), force, fraud and coercion are present in trafficking for sexual exploitation, labour, slavery and organ trafficking (Art.3). The Protocol does not mention intercountry adoption. Nevertheless, it can be understood that there is ‘trafficking’ when dynamics of pressure, fraud and coercion in the process of ‘obtaining’ the child are put into place (Bunkers et al., 2009; Rotabi, 2014), when there is profit through this transfer and in the consent process (Graff, 2008) and when there is kidnapping and bribery (Monico and Mendez-Sandoval, 2019; San Román and Rotabi, 2017). The situation of Guatemalan mothers portrayed by Monico in this special issue exposes how those women whose children were stolen were betrayed and stigmatised.

During the above-mentioned International Forum, Smolin took up the term ‘child laundering’ that Van Loon (1990, cited in Rotabi, 2014) presented in the report of the Permanent Bureau in The Hague. We think this is a suitable notion given that the definition of trafficking or the application of exploitation in terms of intercountry adoption is vague and needs clarification. For Smolin, the term ‘child laundering’

Expresses the claim that the current intercountry adoption system frequently takes children illegally from birth parents, and then uses the official processes of the adoption and legal systems to ‘launder’ them as ‘legally’ adopted children. Thus, the adoption system treats children in a manner analogous to a criminal organization engaged in money laundering, which obtains funds illegally but then ‘launders’ them through a legitimate business (Smolin, 2006: 115).

Therefore, the future of children in intercountry adoption is rarely exploitative. Rather, what is exploitative is the process by which children are declared adoptable, which through illicit laundering practices includes them into the intercountry adoption system (Rotabi, 2014). In this special issue, some authors have contextualised the prevailing market dynamics. For example, Cheney has focused on the ‘orphanage business’ in Uganda showing how adoptions have shifted from country to country. San Román has also provided an analysis on how intermediary entities have benefited from the applications rather than benefiting the children. Hence, a critical rethinking of the system is needed to guarantee the wellbeing and protection of children. This is the sense in which this special issue is framed.

Public Secrecy and the Negation of States

Research from the social and political sciences increasingly has shown that prolonged silences around certain practices in some societies contradict the experiences of others where truth recovery has been central to the transition towards democracy (Kovras, 2012; Robins, 2012). The interrelationship among prolonged silences of the States, secrecy and adoptions is a central concern of this special issue. Secrecy is embedded in a paradox since it must be made public in order to be understood to exist (Herzfeld, 2009) and, for it to exist, not only must someone conceal something, but someone else must know or suspect this concealment. Moreover, the secret is trusted to be concealed, but ‘the power and attraction of secrecy lie in the possibility that it can be disclosed’ (Beidelman, 1993: 41).

Secrecy, although conventionally constructed as existing in the margins of governmental functioning, is enfolded within everyday life: ‘contemporary policies have expanded the boundaries of routine secrecy so that it permeates civil society, resulting in the ‘open secret’ or ‘public secret’ as a structural aspect of contemporary social relations’ (Young, 2011: 58). We are particularly interested in showing how ‘public secrecy’ (Taussig, 1999) – something commonly known but not generally acknowledged – by its nature defies most attempts of disclosure, hence efforts to publicise contemporary needs may be obfuscated (Fletcher, 2012). Diana Marre and Huggo Gaggiotti (this Issue) provide a timely contribution to historicising public secrets and fears through the unrecognition of enforced displacement of children that happened during Franco’s dictatorship. They argue that the prevalent silence in Spain is because of the deep presence of institutional and material remnants of Francoism, even during and after the regulation of international adoptions. Closer attention to how societies understand and manage secrets and silences is essential to understanding the needs and proposing practices of reparation.

Practices of Reparation and Transitional Justice

Irregular adoptions are gaining visibility and attracting attention in the scientific community and international organisations. Although there is no official reliable statistical data, from research on lived experiences, we can suggest that it affects thousands of people⁴. In a report presented by the Special Rapporteur Maud de Boer-Buquicchio during the 34th session of the Human Rights Council (UN, General Assembly, 2017), it is noted that figures are difficult to provide due to the illicit and clandestine nature of these activities and, as it occurs in ‘child laundering’ practices, illicit adoptions would have an appearance of legality, as many of the affected children receive ‘official’ documents which, sometimes, are faked (e.g. birth and medical certificates, birth mother’s identity documents, DNA test results and declarations of relinquishment of parental rights). Documents are a mechanism to claim the truth and control knowledge (Hull, 2012; Mariner, 2019). As Clemente-Martínez, 2021 observed in her fieldwork on Nepalese adoptions, States’ actions are justified through the official documents, and the signatures on them are a way to justify many adoptive families’ unawareness. She identified how some families, who were not fully informed, never thought that the documents might not be true until the moment they met face to face with their child’s Nepalese family.

The Report presented by the Special Rapporteur Maud de Boer-Buquiccio prioritises ensuring the right to truth, justice, reparation and guarantees of non-repetition for victims of large-scale illegal adoptions through institutional reforms (UN, General Assembly, 2017). States are responsible for such illicit practices by omission or complicity and must take measures to prevent and combat them. The report recommends enacting legislation that criminalises illegal adoption and punishes it with penalties that reflect the gravity of the offences.

According to international law, victims of human rights violations have the right to effective reparation (UN, 2005). Reparation and the different mechanisms that respond to illegal acts that affect human rights are intertwined within transitional justice, understood as a set of means and instruments that are used to respond to the crimes and damages caused by the violation of human rights at the international level (UN, 2010). Thirty-two years after the ratification of the CRC and 29 of the 1993 HCCH, in many countries, at the end of dictatorships, civil wars and/or de facto regimes, reparation and justice initiatives have been implemented seeking to address the consequences of human rights violations for victims and their families. The incorporation of international law into the field of transitional justice is an attempt to address impunity by implementing measures to address problems arising from past abuses and to promote truth, justice, reparation and guarantees of non-repetition.

Even if there are limited examples of reparation practices in illicit adoptions, some countries have taken revealing and instructive initiatives. Fronek, Rotabi and Common (this issue) for instance present a case study about Samoa that has established a Trust to facilitate restitution measures, which is a distinctly novel reparation scheme. Patrizi’s article (this issue) also discusses inspiring measures put in place in Switzerland, through apologies and truth-seeking processes or reparations, to address the legacy of the forced expulsions of Yenish children. Patrizi shows how the theoretical framework provided by Transitional Justice (TJ) can be applied to cases of illicit practices as long as it takes into account the social and political context in which the separations took place. In addition to offering an analytical framework, TJ also reminds us of the importance to acknowledge the leading role and voices of protagonists and main actors when restoring injustices from the past, such as the incorporation of adoptees in the designing and implementation of different reparation measures. Likewise, Loibl (this issue) explores instruments that receiving countries can use in an effort to repair the human rights violations caused by illicit intercountry adoptions, borrowing idear from TJ. She points out that, in order to effectively redress the harm inflicted upon victims of illegal adoptions, a policy on remedies should combine instruments of retributive justice, aimed at holding wrongdoers accountable, with measures of restorative justice that focus on the victims’ needs and interests. Loibl discusses four categories of reparations –restitution, satisfaction, compensation and rehabilitation, and non-repetition– and may inspire states carrying out intercountry adoptions in the development of their policy on remedies for abuses and illegal practices.

Other topics addressed in this issue are unofficial responses by birth/adoptive families and adoptees who trace their origins, family reunions and open adoption. For example, for Uganda, Cheney relays the efforts of advocates who point at the need to reform the country’s child protection infrastructure. In the African country, one approach followed has been the creation of national and regional-level based Alternative Care Panels that seek to provide strategies for effective child and family safeguarding practices and justice for persons affected. In Argentina and Chile, grassroots movements have played an essential role in the review of legislation and the implementation of child protection reforms to enforce respect for human rights. Gesteira, Salvo Aglogia, Villalta and Alfaro Monsalve (this issue) provide insights on how organisations of persons who are searching their origins have raised awareness on illicit practices leading to the establishment of these panels. The Argentinian and Chilean adoptees have become activists with technical and psychosocial knowledge who pursue their claims to be heard and pressure their respective states to generate reparatory practices.

In addition to these examples, other countries have developed reparation and restitution practices. Such actions range from truth-seeking measures such as in Sweden (Sköld and Swain, 2015), the creation of committees to investigate past abuses as happened in The Netherlands (Ferrer, 2021; Moses, 2021; Pieters, 2018) to the acknowledgement and public apologies as a symbolic form of reparation as happened for instance in Ireland, Australia and Denmark (EuroNews, 2021; Otzen, 2020). In Australia, independent research such as the case of forced English child migration to Australia has been conducted (Humpreys, 1996). In addition, official apologies have been expressed and the Australian government has created search and reunion assistance funds or counselling for victims of forced adoption (Fronek and Cuthbert, 2013).

In the international framework, efforts are being made through the Hague Conference Working Group on Preventing and Addressing Practices (HCCH, 2019). The group has met on several occasions to establish a model of international procedure for restorative practices that includes measures such as awareness-raising, identification of wrongful practices and investigation, communication with authorities, agencies and individuals, support to affected persons, assessment of the current status of the adoption process and severity of the wrongful practice, as well as reparations. The aim is to develop a toolkit to assist States. The full toolkit was presented at a meeting of the Special Commission in September 2021 to identify, prevent and address illicit practices (HCCH, 2021).

We consider this framework of restorative justice as a huge step forward to the improvement of the system and can help to break the ‘silence’ in illicit adoptions, as well as provide thoughtful and effective responses to the claims of adoptees. As Gesteira, Salvo, Villalta and Alfaro suggest (this issue), this silence is being broken by new ‘political actors’ who have denounced malpractices in their adoptions. Thus, there is a strong need to recognise the bad practices committed and the damage done in order to improve the adoption system and not repeat the mistakes that have violated the human rights of adopted persons.

Footnotes

Acknowledgements

This issue was conceptualized before the pandemic emerged. We are aware these past years have had an impact on our lives. We would like to express our gratitude to the authors for their constant work in constructing a better world for future generations and their patience during these hard times.

Declaration of conflicting interests

The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The authors disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This Special Issue is framed within a broader research project entitled ‘Repro-flows in Europe, North Africa and Latin America: peoples and gametes mobilities in the fragmented context of transnational regulation of assisted reproduction and adoption’, funded by the Spanish Ministry of Science and Innovation (Reference: PID2020-112692RB-C21/AEI/10.13039/501100011033).

Notes

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