responding to illegal adoptions

203 Pages·2016·2.72 MB·English

RESPONDING TO
ILLEGAL ADOPTIONS:
A PROFESSIONAL
HANDBOOK
COPYRIGHT
International Social Service
Quai du Seujet 32
1201 Geneva
Switzerland
Published by:
International Social Service
Quai du Seujet 32
1201 Geneva
Switzerland
The designations employed and the presentation of the material in this handbook do not imply on the part
of the commissioners or authors the expression of any opinion whatsoever concerning the legal status of
any country or territory, or of its authorities or the delimitation of its frontiers.
Any part of this handbook may be freely reproduced with the appropriate acknowledgement.
Permission to translate all or any part of this handbook should be obtained through ISS:
International Social Service
Quai du Seujet 32
1201 Geneva
Switzerland
Editors:
Christina Baglietto, Nigel Cantwell and Mia Dambach
Cite as:
Baglietto C, Cantwell N, Dambach M (Eds.) (2016). Responding to illegal adoptions: A professional handbook.
Geneva, Switzerland: International Social Service (please refer to author contributions when relevant)
ISBN
978-2-9700976-7-9
ACKNOWLEDGEMENTS
The research, collaboration, consultation and drafting of this publication involved many partners and
contributors, and the editors would like to express their sincere gratitude to all who helped to bring this
work to fruition through their time, expertise and contributions. We are also very grateful to the numerous
individuals and organisations who gave their time and expertise to provide feedback and/or review sections
of earlier drafts. We have included all authors’ names in each individual contribution with a short biography
at the end. We trust that the product of this joint exercise will unite professionals to ensure that ethical and
adequate responses to illegal adoptions are offered to those affected.
FOREWORD
Unequivocally, adoption in a rights framework as a child protection measure, offers many advantages to children
who cannot be cared for by their family of origin. The Convention on the Rights of the Child outlines safeguards
necessary to ensure that the best interests of the child shall be the paramount consideration in adoption. The
Optional Protocol on the sale of children, child prostitution and child pornography stipulates, in the context of
sale of children, that States must ensure that the improper inducement of consent, as an intermediary, for the
adoption of a child, in violation of applicable legal instruments on adoption, is covered by their criminal law.
The Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry
Adoption provides more detailed guidance in cases where children are placed in another country. The 1993
Hague Convention stresses the importance that significant efforts be made to ensure children remain in families
of origin and that national family-based solutions are exhausted before considering intercountry adoption.
Regrettably, despite such an international framework, thousands of children continue to be adopted illegally.
For example, the consent of mothers or parents is not being obtained, children are fraudulously considered
orphans, fraudulent birth certificates are issued, professionals involved in the process are being bribed, and
systematic improper financial or other gain are widespread. This situation results in immense suffering for the
child, families of origin and adoptive families. Many of these cases are widely documented.
Whilst efforts have been undertaken to address such violations of International Law – mostly of a disparate and
fragmented nature – a comprehensive resource for professionals dealing with such tragedies has been lacking till now.
We wholeheartedly welcome this professional handbook on illegal adoptions as the first attempt to provide a
consolidated overview of potential avenues for remedies, reparation and above all prevention. The handbook
recognises that the path to healing and restoration is likely to be long, painful and challenging, as demonstrated
by various testimonies and contributions. Yet, what is most encouraging is that the story of those involved has not
stagnated at the discovery of an illegal adoption. The handbook offers broad solutions from various perspectives
– legal, psychosocial, social and political – thereby acknowledging that each journey for dealing with such
tragedies is unique. Importantly, a number of promising practices focus on the joint responsibility of countries of
origin and receiving countries. Innovatively, the handbook likewise provides insights from lessons learned for the
practice of international surrogacy arrangements, which, when unregulated, can lead to the sale of children.
This handbook provides hope in what would otherwise be a rather gloomy reality. We unreservedly encourage
all professionals working in alternative care, adoption and international surrogacy arrangements to read this
publication and take courage. Our hope is that we can learn from our past, to ensure that adoption is truly used
as a child protection measure.
Benyam Dawit Mezmur Maud de Boer-Buquicchio
Chairperson of the Committee Special Rapporteur on the sale of children,
on the Rights of the Child child prostitution and child pornography
April 2016
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SYMBOLS AND ACRONYMS
1993 Hague Convention Convention of 29 May 1993 on Protection of Children and
Cooperation in Respect of Intercountry Adoption
1996 Hague Convention Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition,
Enforcement and Co-operation in Respect of Parental Responsibility and
Measures for the Protection of Children
AAB Accredited adoption body
ACERWC African Committee of Experts on the Rights and Welfare of the Child
ACHR American Convention on Human Rights (‘Pact of San José, Costa Rica’)
ACtHPR African Court on Human and Peoples' Rights
African Charter African Charter on Human and Peoples' Rights
African Commission African Commission on Human and Peoples' Rights
AU African Union
AUC African Union Commission
CA Central Authority
CEDAW Convention on the Elimination of All Forms of Discrimination against Women
CRC Committee on the Rights of the Child
CoE Convention Council of Europe Convention on Action against Trafficking in Human Beings
against Trafficking
Directive 2011/36/EU Directive 2011/36/EU of the European Parliament and of the Council of 5 April
2011 on preventing and combating trafficking in human beings and protecting its
victims, and replacing Council Framework Decision 2002/629/JHA
ECHR European Convention on Human Rights
ECtHR European Court of Human Rights
EMDR Eye Movement Desensitisation and Reprocessing
EU European Union
Genocide Convention Convention on the Prevention and Punishment of the Crime of Genocide
Guidelines Guidelines for the Alternative Care of Children
HCCH Hague Conference on Private International Law
HCCH Guide to The Implementation and Operation of the 1993 Intercountry Adoption Convention:
Good Practice No. 1 Guide to Good Practice No 1
HCCH Guide to Good Accreditation and Adoption Accredited Bodies: General Principles and Guide to
Practice No. 2 Good Practice No 2
IACITM Inter-American Convention on International Traffic in Minors
IACtHR Inter-American Court of Human Rights
ICA Intercountry adoption
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SYMBOLS AND ACRONYMS
ICCPR International Covenant on Civil and Political Rights
ICPPED International Convention for the Protection of All Persons from Enforced
Disappearances, International Convention for the Protection of All Persons
from Enforced Disappearance
Inter-American Inter-American Commission on Human Rights
Commission
ISA International surrogacy arrangement
ISS International Social Service
ISS/IRC International Social Service / International Reference Centre for the rights of
children deprived of their family
NGO Non-governmental organisation
OAS Organisation of American States
OP3 Optional Protocol to the Convention on the Rights of the Child on a
communications procedure
OPSC Optional Protocol to the Convention on the Rights of the Child on the sale of
children, child prostitution and child pornography
Protocol to the Protocol to the African Charter on Human and Peoples’ Rights on the
African Charter Establishment of an African Court on Human and Peoples’ Rights
UN United Nations
UN Protocol on Trafficking United Nations Convention against Transnational Organised Crime
and its Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children
UNCRC Convention on the Rights of the Child
UNICEF United Nations Children’s Fund
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CONTENTS
FOREWORD
SYMBOLS AND ACRONYMS
CHAPTER 1: INTRODUCTORY AND HISTORICAL CONSIDERATIONS
1.1 HANDBOOK OUTLINE
1.2 METHODOLOGY
1.3 HANDBOOK OBJECTIVES
Historical considerations: Irregularities in intercountry adoption
CHAPTER 2: LEGAL CONSIDERATIONS
2.1 RIGHT TO SEARCH FOR INFORMATION: INTERNATIONAL
AND REGIONAL PROVISIONS
2.1.1 International instruments and bodies
2.1.2 Regional instruments and bodies
2.2 LEGAL REMEDIES: INTERNATIONAL AND REGIONAL
2.2.1 International instruments
2.2.2 Regional instruments
2.3 NATIONAL EXAMPLES: SEARCHING FOR ORIGINS AND LEGAL REMEDIES
Promising practice: Spain, the search for origins and legal remedies
Promising practice: Argentina takes responsibility for forced disappearances
Promising practice: Australia’s National Apology for forced adoptions
Promising practice: Legal paths to justice in the Netherlands
2. 4 CONCLUDING REMARKS
CHAPTER 3: PSYCHOSOCIAL CONSIDERATIONS
3.1 INTRODUCTION
3.2 F IRST QUESTION: IN WHAT WAY CAN THE PSYCHOSOCIAL
CHARACTERISTICS OF ADOPTIVE NORMALITY – ALREADY PRESENT IN
THE ADOPTED PERSON – COLOUR THEIR EMOTIONAL REACTIONS?
3.2.1 The unidentified missing object (UMO)
3.2.2 A patchwork identity
3.2.3 Poor self-esteem: the poisoned legacy of shame
3.2.4 Difficult attachments: The effects of early relational trauma
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CONTENTS
3.3 S ECOND QUESTION: IS THE REVELATION OF AN ILLEGAL ADOPTION REALLY
MORE UPSETTING THAN OTHER EQUALLY DISTURBING DISCLOSURES?
3.4 T HIRD QUESTION: WHAT PSYCHOTHERAPEUTIC APPROACHES
CAN HELP THE ADOPTED PERSON TO PROCESS, AND
THEN PSYCHOLOGICALLY INTEGRATE ALL THE DISTURBING
INFORMATION IN A CONSTRUCTIVE AND MEANINGFUL WAY?
3.5 CONCLUDING REMARKS
Personal testimony: The importance of birth registration
Personal testimony: Stolen from my mother in Peru and adopted into France
Promising practice: La Voix des Adoptés, a place for adoptees to share experiences,
be supported and listened to
Personal testimony: Born in Lebanon and adopted as an ‘orphan’
Promising practice: The importance of support, the birth of Born in Lebanon
Promising practice: The experience of AFIN in Spain
Promising practice: Family Mediation
CHAPTER 4: SOCIAL CONSIDERATIONS
4.1 SEARCHING FOR THE TRUTH WITH PROFESSIONAL ASSISTANCE
Promising practice: An example of search and reunion case management: children abducted during El
Salvador’s Civil War
Promising practice: Raising awareness about false birth registration practices,
known as the Brazil Baby Affair
Promising practice: How accredited adoption bodies in Sweden and Finland can assist in
illicit adoption cases
4.2 B REAKING MYTHS ABOUT ADOPTION THROUGH THE
MEDIA, INCLUDING SOCIAL NETWORKS
4.3 CONCLUDING REMARKS
Personal testimony: Lessons learned by an adoptive mother/journalist about search and reunion in Guatemala
P romising practice: Abuelas de Plaza de Mayo: Mass dissemination campaigns and theatre as cultural and
artistic tools to establish their cause as a social issue
P ersonal testimony: Reuniting children with their biological families in a country of origin, when the parents
have not provided their consent
Promising practice: Influencing policies on intercountry adoption in Africa
Promising practice: Schuster Institute for Investigative Journalism, Brandeis University
Personal testimony: Adopted as an orphan despite my living Korean parents
Promising practice: Setting up an advocacy group in Korea
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CONTENTS
CHAPTER 5: POLITICAL CONSIDERATIONS
5.1 CONFRONTING OBSTACLES
5.2 ISSUES REGARDING DOMESTIC ADOPTION
5.3 ISSUES REGARDING INTERCOUNTRY ADOPTION
5.3.1 Country of origin
5.3.2 Receiving country
5.4 ARE ‘BEST INTERESTS’ A RELEVANT CONSIDERATION?
5.5 STATE RESPONSIBILITIES
5.6 CONCLUDING REMARKS
Personal testimony: The position of the biological families in the adoption triangle
Personal testimony: Paper Orphans vindicated in Nepal
Promising practice: HCCH continues its efforts to identify mechanisms for responding to illicit practices
Promising practice: Working Group on Preventing and Addressing Illicit Practices in Intercountry Adoption
Promising Practice: Dutch Child Protection Board raises awareness on how to address illicit practices
Promising practice: Belgium’s authorities actively implement preventive measures to combat
illegal adoptions
Promising practice: The situation of Chile in the face of irregular circumstances in adoption
Promising practice: Guatemala and the criminal prosecution of human trafficking for illegal adoption
purposes: Identification of strategies to fight impunity
Promising practice: The road to reform out of chaos in Vietnam
Promising practice: Adoption Rights Alliance and the Philomena Project in Ireland and the USA
CHAPTER 6: FUTURE CONSIDERATIONS
6.1 Knowledge of their origins for children born through surrogacy: Respect for the right to the preservation
of their identity
6.2 S urrogacy as the sale of children: Applying lessons learned from adoption to the regulation of the
surrogacy industry’s global marketing of children
6.3 I nternational surrogacy rights and the needs of surrogate mothers
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CONTENTS
CHAPTER 7: CONCLUDING CONSIDERATIONS
7.1 FOUR CONTEXTS FOR UNDERSTANDING AND
RESPONDING TO ILLICIT ADOPTION PRACTICES
7.1.1 First context: Adoption as a contested and paradoxical practice
7.1.2 Second context: International standards and historical forms of adoption
7.1.2a International standards
7.1.2b Historical contexts: Ancient roots and Civil Law systems
7.1.2c Common Law’s late development of adoption and the baby-scoop era
7.1.2d Selected non-Western histories
7.1.2e Adoption as a means of genocide
7.1.2f Adoption as a tool of political retaliation by authoritarian regimes
7.1.2g Empty graves and stolen babies
7.1.2h Intercountry adoption scandals across the globe
7.1.3 Third context: The inherent paradox of creating human-rights compatible adoption systems within
contexts of extensive discrimination and deprivation of rights
7.1.4 Fourth context: Illicit adoption practices as the ‘perfect crime’
7.2 F OUR RECOMMENDATIONS FOR EFFECTIVE RESPONSES
TO ILLICIT ADOPTION PRACTICES
7.2.1 First recommendation: Investigate individual adoptions and adoption systems as soon as possible
whenever there are indications of illicit practices
7.2.2 Second recommendation: Mediate and balance the often conflicting needs and desires of adoption triad
members, and the interests of justice, without recapitulating the inequalities and injustice involved in the
original illicit practices
7.2.3 Third recommendation: Legitimise and facilitate the work of activists
7.2.4 Fourth recommendation: Create sustained oversight and response by international
organisations and NGOs
7.3 BY WAY OF CONCLUSION
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CHAPTER 01 INTRODUCTORY AND
HISTORICAL CONSIDERATIONS
INTRODUCTORY AND HISTORICAL CONSIDERATIONS
ISS estimates that, worldwide, more than half a million children have been adopted
abroad. Today, these children have become adults and many are searching for their
origins, history, biological parents or extended family. At times, these searches can
lead to findings of illegal practices.
As a result of the increasing visibility of illegal adoption cases, potentially affecting thousands of children, ISS
undertook research in 2012 resulting in the study Investigating the grey zones of intercountry adoption. The study
includes a collection of cases where people have been convicted of illicit practices in the field of intercountry
adoption (ICA) covering more than 50 countries over the last 30 years.
DEFINITION OF “ILLEGAL ADOPTION”
Where the term ‘illegal adoption’ is used in this publication, it is intended to signify ‘an adoption
resulting from abuses, such as abduction, the sale of, traffic in, and other illegal or illicit activities
against children’, as defined in the HCCH Guide to Good Practice No. 1. In other words, it will
always imply illegal acts prior to the adoption order being made, but may or may not imply
illegality in the granting of the order itself.
The 2012 study demonstrates that the development of ICA was (and still is) marred by multiple forms of abuses
and poor practices (see ‘Historical considerations: Irregularities in intercountry adoption’ below). Adoption was
often especially prevalent in countries of origin suffering from precariously functioning systems and inadequate
legal frameworks, as well as corruption within government authorities and unscrupulous middlepersons who
often turned adoption into a veritable industry based on ‘supply and demand’. Frequently, children were hauled
to the adoption market without any consideration for their birth parents’ consent and safeguards for their rights.
Likewise, an additional complicating factor was the extent of the adoptive family’s potential awareness and degree
of involvement in the unethical situation.
Not surprisingly, how one responds to concerns about the way in which an adoption took place, has become an
increasing preoccupation of adoption professionals as well as of those personally affected. A special Working
Group of States Parties to the 1993 Hague Convention was set up in 2010 to develop a common approach to
preventing and addressing illicit practices in ICA cases (see Promising practice: HCCH continues its efforts
to identify mechanisms for responding to illicit practices and Promising practice: Working Group to develop a
common approach to preventing and addressing illicit practices in intercountry adoption in Chapter 5: Political
considerations)1. In parallel to these efforts, ISS is now regularly receiving requests for support from adoptees,
adoption associations and professionals looking for effective responses and tools in the face of this complex
situation. To address this gap, ISS decided that a practical handbook covering the array of key responses and
potential remedies for professionals should be developed.
1 See: HCCH, Intercountry adoption, Working Groups, https://www.hcch.net/en/instruments/conventions/specialised-sections/intercountry-adoption.
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