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 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, through its subsidiarity principle, 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. What is more, the United States currently allows its citizens to also adopt from countries that refuse to adhere to the Hague Convention, creating a two-system approach to international adoption. The United States is currently the largest “receiving country” in international adoption. What is less known is 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 reported by the U.S. Department of State. 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. But even as the globalization of the adoption industry has led to a more culturally diverse American population, the United States is certainly not “color-blind” in its approach to adoption. Despite adherence to post-racial thought, 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, and as the children aging out of foster care unadopted are disproportionately black. Just as Derrick Bell’s Interest Convergence Theory argued that color blindness was co-opted through Brown v. Board of Education to serve the interests of white elites, this Article suggests that the “best interests of the child” standard has been co-opted in adoption merely to satisfy predominantly white demands for children. The Article concludes that the United States should not be sending its own minority children to other countries to find a home, and then replacing them with children — of any color — from other nations. The Article ultimately 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: 52

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

JEL Classification: I30, J1

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Date posted: February 25, 2014 ; Last revised: August 28, 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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