Take Off the [Color] Blinders: How Ignoring the Hague Convention’s Subsidiarity Principle Furthers Structural Racism Against Black American Children

DeLeith Duke Gossett

Texas Tech University School of Law

February 8, 2014

Santa Clara Law Review, Forthcoming

The globalization of the adoption industry has led to a more culturally diverse American population as the United States has become the largest “receiving country” in international adoption. Even so, and despite adherence to post-racial thought, the United States is certainly not “color-blind” in its approach to adoption, particularly when it comes to black American children. Race is still negatively incorporated into the cost of domestic adoptions, as industry standards continue to value children of color less than their lighter counterparts. Further, what is less known is that the United States is also a “sending country,” as each year it sends abroad many of its black and biracial children, many from foster care, to be adopted internationally — and at a reputedly higher number than is currently reported by the U.S. Department of State. The Hague Convention on Intercountry Adoption, to which the United States subscribes, was established to stem the tide of corruption in international adoption practices. It sets adoption practice standards for member countries and provides for international adoption only when intra-country adoption is not available; however, intra-country adoption avenues are not being exhausted prior to U.S. international adoptions — whether sending or receiving. Instead, the United States currently allows its citizens to adopt from countries that refuse to adhere to the Hague Convention. Legislation, in the form of the Children in Families First Act of 2013, has even been introduced to circumvent the Hague’s subsidiarity principle and to provide more children to satisfy American demand. Prof. Gossett suggests, just as Derrick Bell’s Interest Convergence Theory argued that Brown v. Board of Education was co-opted to serve the interests of white elites, as was later color-blindness in the face of affirmative action efforts, that the “best interests of the child” standard has been co-opted in adoption merely to satisfy predominantly white demands for children. However, Professor Gossett argues that the United States should not be disposing of its own available minority children, sending them away to other countries for adoption, and then replacing them with children from other nations. Ultimately, Professor Gossett calls for abolishment of the current two-system approach to international adoption that has evolved in the United States that circumvents Hague protocols and protections and contributes to the structural racism against black American children.

Number of Pages in PDF File: 50

Keywords: adoption, Hague Convention, international, foster care, CHIFF, Derrick Bell, color-blindness

JEL Classification: I30, J1

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Date posted: February 25, 2014 ; Last revised: June 19, 2014

Suggested Citation

Gossett, DeLeith Duke, Take Off the [Color] Blinders: How Ignoring the Hague Convention’s Subsidiarity Principle Furthers Structural Racism Against Black American Children (February 8, 2014). Santa Clara Law Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2400603 or http://dx.doi.org/10.2139/ssrn.2400603

Contact Information

DeLeith Duke Gossett (Contact Author)
Texas Tech University School of Law ( email )
1802 Hartford
Lubbock, TX 79409
United States
806-834-7672 (Phone)
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