The Hague: An Endless Balancing Act of Preventing Intercountry Adoption Abuses and Finding Permanent Homes for Orphans

Posted: 26 Jul 2015

See all articles by Naomi Goodno

Naomi Goodno

Pepperdine University - Rick J. Caruso School of Law

Date Written: August 20, 2014

Abstract

Intercountry adoption – is it a great humanitarian act or a channel of human trafficking? In many ways the legal aspects of intercountry adoption (“ICA”) frame the essential issues. Who is an orphan and how can he or she be best cared for? How can children and birth parents be protected from exploitation and trafficking? Who should be eligible to adopt an orphan via ICA? How should ICA and domestic options be balanced? By framing the essential issues, a legal approach seeks to define what these issues are about and, in doing so, cultivates a basis and authority from which to address these difficult questions and enact how ICA should, can, and ought to occur. The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (“Hague” or “Hague Convention”) is the current primary international legal instrument which governs ICA. Although countries can choose whether or not to ratify the Hague Convention, the goals, principles, and regulatory scheme laid out in the Hague Convention attempt to address some of the most controversial aspects of ICA. The purpose of this article is to discuss the legal landscape of ICA and present perspectives on whether it adequately addresses the myriad of moral and ethical concerns surrounding ICA, with special attention to the influence of the Hague Convention.

This article introduces the ICA legal regime under the Hague and discusses the major issues and challenges. After a brief discussion of the legal history of ICA, the paper compares and contrasts the language of the Hague Convention with its predecessor, the Convention on the Rights of the Child (“CRC”). Despite language discrepancies and ambiguities, these two documents are at the core of ICA law, the goal of which is meant to safeguard all parties involved in the ICA process. This article explores how the procedural scheme has been implemented in various countries to illustrate the success and failures of the Hague. Without being overly critical of the Hague or endorsing it as a panacea, the paper suggests ways in which the Hague might be interpreted and modified to deal with some of the problems of implementation.

Keywords: intercountry adoption, Hague, human trafficking, international adoption, adoption, child trafficking, Hague Convention, Convention on the Right of the Child, human rights, children rights, international law

Suggested Citation

Goodno, Naomi, The Hague: An Endless Balancing Act of Preventing Intercountry Adoption Abuses and Finding Permanent Homes for Orphans (August 20, 2014). Available at SSRN: https://ssrn.com/abstract=2528723

Naomi Goodno (Contact Author)

Pepperdine University - Rick J. Caruso School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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