The Law and Economics of Adoption
(this is an early draft of an article which appeared in the New Palgrave Dictionary of Law and Economics)
by John Palmer / The University of Western Ontario
The adoption of a child by non-biological parents is the transfer of a limited property right. To understand an economics-and-law analysis of adoption, one must first examine the nature of this property right. Then the conditions of exchange can be studied and assessed.The property right that is being exchanged is a parenthood right — the right to take on the rights and obligations that accompany parenting a child. These rights are limited by governments in many different ways. One may not buy and sell these rights, one may not readily dispose of one’s “property”, nor may one indiscriminately cause harm to the property. Also, one must provide food, clothing, shelter, and education for the property. These limitations have been imposed upon the owners of all such property in the class, whether the property right was acquired biologically or via exchange.
Changing Supply Conditions
Through the first half of the twentieth century, into the 1950s, the primary issue in adoption was finding acceptable homes for children, including adoptable infants born out of wedlock. Beginning in the 1960s, though, shortages of normal healthy infants emerged. This dramatic shift in the supply and demand conditions has been related to many concurrent shifts in relative prices, technology and tastes. Certainly one of the major determinants of the reduced supply of parenthood rights for adoptable infants has been the falling birth rates themselves, throughout the entire populations (and not just among unwed mothers) of industrialized countries. This decline in birth rates has been related to rises in the labour force participation rates of females and to lower-cost and more reliable birth control technologies (see Medoff 1993).
Another variable influencing the supply side of this market has been the continued raising of the social safety net, making it increasingly economically feasible for single parents to raise the children born to them rather than put the children up for adoption. Without increased welfare payments, Aid to Families with Dependent Children (in the United States), and increased support for day care programmes for the children of single parents, many of these parents would choose not to retain the parenthood rights to their children. Instead, they would choose to put the children up for adoption or, in some instances, choose not to create them in the first place.
Interestingly, it appears that the increased availability and declining price of abortions has had no statistically significant effect on the supply of adoptions, at least not in the U.S. (Medoff 1993). It seems a priori that the decriminalization of abortions and the resulting lower price, along with government support for abortions in many countries should have been expected to lead to a reduced supply of adoptions, but apparently these effects have not been very strong.
Within the past few years, another source of restrictions on supply has emerged as unwed fathers have sought to block the placement of children for adoption. Males have successfully filed suit to block the placement of their biological offspring in adoptive homes, arguing that (a) they have a legal entitlement to the parenthood rights even if the biological mother does not wish to retain the rights and (b) they were often not informed about the existence of the offspring (see Hansen 1993 and Shoop 1992 and the case law cited in these articles). The effect of these decisions has been both to reduce the supply of parenthood rights and to increase the risk to the parties acquiring them. One of the features of the U.S. Adoption Promotion and Stability Act of 1996 has been to establish a type of doctrine of lost grant or statute of limitations for claims from biological parents. The desired effect of this provision is to reduce considerably the risk to adopting parents that they will have to relinquish the rights in future years. Another effect, however, is that biological fathers who are not aware of the birth of a child they fathered will lose some parenthood rights they might otherwise have wanted to retain.
Shortages
As a result of these reductions in supply, the market faces a chronic shortage at current prices. It has been estimated that approximately only one in thirty of the couples applying for adoption will receive the child they want (Gubernick 1991a). With shortages this large, one can readily imagine that prices are well below the market clearing price and there is considerable lost consumer and producer surplus. In standard economic markets, a shortage would signal that prices should be expected to rise to re-equate the quantity supplied with the quantity demanded. Yet this has not happened in the “market” for adoptable infants, at least not in any direct way. The sole explanation for this difference is the intervention of the state in this market. If people were free to make contracts about the exchange of this limited property right, and if the state enforced these contracts as it enforces other contracts, then the emergence of a shortage at the current price would inevitably lead to an increase in the price (For one of the earliest academic treatments of this issue, see Posner and Landes [1978]).
The major reason that these markets have not evolved in this fashion or in any other straight-forward pattern is that markets to exchange these limited rights and obligations would give the impression of promoting the exchange of human beings. This commodification of infants is seen as repugnant and unethical by many people. The result of this widely prevalent view is that the state intervenes.
From a broader perspective, state intervention in these markets is justified on the grounds that it is warranted by social-welfare-function considerations. Most reasonable constructions of the social welfare function would include the net present value of the expected future self-perceived well-being of the infants being “exchanged” in these markets, and yet the infants are not in a position to make decisions in their own best interests. In most traditional families, the parents are expected make decisions on behalf of the children, but in the case of adoptable infants, we expect the state to act on their behalf. It is not at all clear, however, that the state does so successfully.
In a review of adoption outcomes, Wierzbicki (1993: 447) found that “…adoptees had significantly higher levels of maladjustments, … higher levels of externalizing disorders and academic problems than nonadoptees.” The crucial law and economics question concerning results like this is, “How would these children have fared under some alternative institutional arrangement?” Would they have done better if their parenthood rights had been be retained by their biological parent(s)? Would they have done better if they had been placed via some alternative scheme(s)? Or are these simply infants who are doomed to unhappiness and maladjustment with a high probability? Because of the counter-factual nature of the hypothesis to be tested, there is no clear answer to this question.
Based on the data that adoptions frequently do not seem to work out, there has been increased emphasis on encouraging biological mothers to retain the parenthood rights to their children. Concomitantly, governments are being exhorted to increase their counseling and training programs for young, single parents, to reduce the chances of their raising poorly adjusted children (see, for example, Donnelly and Voydanoff 1996). Not everyone agrees with these recommendations, however, questioning whether it is more cost-effective to counsel single parents than it is to counsel adoptive parents and their children (for this and related arguments, see Lowe 1996 and Bartholet 1994). In addition, there is evidence that the present scheme may be no better than alternatives which would place more reliance on market forces.
Games and Losses Under Non-Market Allocation
Typically when a prospective couple approaches an adoption agency to adopt a child, they are told that the likelihood of receiving one is low, and even then the wait will be long. They are also told that there are many “hard-to-place” children available for adoption — children who are older, who have physical or mental disabilities, or who are of mixed racial background. They are encouraged to consider adopting one of these children rather than wait for a normal healthy infant.
At this point, the couple must engage in some game-playing with the agency. The typical game is that the couple would prefer a “hard-to-place” child to no child at all, but they would prefer a normal healthy infant to a “hard-to-place” child. Also, they do not wish to appear unloving, uncaring, ungenerous, etc. to the agency worker(s), and so they think they must say they would be willing to adopt one of these children even though they would prefer not to. But then they fear that if they say they would be willing to take a “hard-to-place” child, even though that would be far from their first choice, they will receive one.
Agencies are given authority by the state to act as intermediaries in these transactions. Their mandate typically involves some phrase encouraging them to act in the “best interest of each child,” but when there are many children involved, this mandate is not particularly helpful. Agency workers believe that placing hard-to-place children in adoptive homes is preferable to foster-home or group-home alternatives even though the expected outcome of such adoptions is not particularly good, on average (Society 1993). They also are under financial pressure to place these children in adoptive homes rather than have to pay for their upkeep in foster or group homes. Like many employment, dating, or real estate agencies, their objective often appears to be to maximize placements. After all, maximizing the quality of the placements requires attaching weights to the preferences of all the people involved, a task which would meet with considerable difficulty if anyone attempted to formalize it.
This difficulty can be most readily seen by considering the following dilemma: an agency has two children, C and D to place in two homes, A and B. Both homes would prefer child C, but home A does not have a strong desire to become parents at all. They are on the margin between wanting to acquire a consumer durable, such as a recreational vehicle, and wanting to spend money raising a child. And they definitely do not want child D. Meanwhile home B would be willing to take child D rather than have no child at all, but it would much rather have child C. It is clear that if the adopting homes were required to pay very much for the parenthood rights to these children, home A would choose a recreational vehicle over a child, and home B would end up with child C, the one they prefer. Child D would end up in foster care or in a group home.
Contrast this outcome with the likely outcome under present-day institutional arrangements. In an attempt to maximize adoption placements and minimize foster or group home placements, the agency has an incentive to place child C with home A and child D with home B. In the first scenario, home B receives what it has a strong preference for; in the second scenario, both homes receive a child, but neither home has particularly strong preferences for the result. Follow-up studies of adoption indicate that this second scenario is more likely to lead to poor adoption outcomes (Palmer 1986); nevertheless, it is the more likely outcome under these incentives.
Consumer and Producer Surplus
To formalize the argument in the previous section, the current agency-adoption scheme, by allocating parenthood rights to homes on some basis other than willingness to pay, causes dramatic losses in consumer surplus. Those who are at the upper end of the demand curve may not receive a child, while those who are down near the lower left end of the curve may receive a child. There is a resulting transfer of consumer surplus from those who would be willing to pay high prices but do not receive a child to those who would not be willing to pay very much but do receive a child.
The size of this lost consumer surplus depends on how closely agency allocation criteria mirror consumer willingness to pay, the price elasticity of demand, and the sizes of the administered price (often a nominal fee) and what the market price would be if an unfettered market existed. Palmer (1986) has roughly calculated that for the U.S. market, this loss was somewhere between $45 million and $1.7 billion per year in 1971 dollars. There is quite obviously a great deal of imprecision in these estimates, but even the lowest ones indicate that the loss has been large. And these losses refer only to consumer surplus — lost producer surplus from not allowing people to produce more to satisfy the market demand is not included in these estimates. The size of these losses begs the question of why society tolerates their continuation: why do we tolerate the continued imposition of such large losses on such relatively few people to the benefit of so few whose benefit is so much smaller than the loss?
Why Not Use the Market?
As noted earlier, one important reason for eschewing reliance upon market forces to allocate these parenthood rights is concern about the moral implications of selling babies. Many people have argued informally that the primary reason Richard Posner is not a U.S. Supreme Court Justice is his having published his article with Landes in 1978 [Professor Newman: please feel free to delete this sentence if you wish]. But there are many other reasons as well, some more noble than others.
Among the more noble are concerns about the welfare of the adopted and unadopted children. The present scheme, it is argued, allocates more children to more homes than would a market scheme. This concern is misplaced, however, because it implicitly assumes that there would be one, single fixed price for the exchange of parenthood rights. Instead, a market would likely see a complex structure of prices emerge for the parenthood rights to children of various “qualities”. Normal healthy infants of a desired race and with desirable, credentialized genetic backgrounds would fetch high prices. Others would go for lower prices. Intermediation would continue to evolve to reduce the transactions costs.
The Allocation of Risk
One of the concerns about using market forces to expedite the allocation of parenthood rights to infants addresses a question which lies at the heart of economic analysis of law: who is the least-cost bearer of the risk? What if the child turns out to be different from what the adopting parents expected? Under present schemes, the risk is generally borne by the adopting parents, as it is by biological parents, if the child turns out not to be what they had hoped for. However, contracts to exchange parenthood rights will necessarily evolve to allocate various risks, and the exchange prices will vary with the risk allocation. Also, specialized intermediaries, an extension of many of the private services presently available, would emerge, in part to reduce transactions costs and in part to allocate the risks more explicitly and efficiently.
Recent litigation has indicated that risk allocation is a concern, even under agency-placement schemes. Agencies have long been held liable for misrepresentation of the quality of the product they have sold, e.g. for telling parents that a prospective adoptee has no known health problems when they know it does. Increasingly, agencies are also being held liable for negligence, for not investigating the child’s health and background to identify potential risks. Given the concerns about risk allocation under current schemes (see Hellwege 1995), it is not unreasonable to expect that these concerns will only grow, no matter what scheme is used. As court cases continue to define the responsibilities of sellers, buyers and intermediaries, the allocation of risk will become increasingly clear.
Another concern is the effect of the market on “hard-to-place” children. Some of these children are placed under the current scheme because of the shortages of the easier-to-place children; prospective adopters take them rather than settle for no child at all. Under a scheme that relies more heavily on the market, these children would not be placed at high prices. In fact they might not be placed at even a zero price. Indeed, many of them remain unplaced at low or zero prices under current schemes. The result has been that many of these children end up in perpetual foster care or in group homes. Recent policy has encouraged government funded agencies to provide subsidies to adopting parents to encourage the adoption of such children (Rubin, Katz, and Tin 1996). In essence, these proposals recommend allowing the price of the parenthood rights to these children to drop below zero.
Consider an intermediary who has contracted with a supplier to provide a good of a particular quality to a buyer. If the good does not measure up to the agreed upon quality, the buyer refuses delivery and/or sues for breach of contract. If this were to happen with parenthood rights to a child, the intermediary would have the responsibility of caring for the child. Rather than bear this expense directly, especially since their childcare would likely be under considerable scrutiny and would be quite costly, they would likely prefer to pay someone else to assume the parenthood rights to the child. Put crassly, they would sell the child for a negative price. This market-driven outcome would not, however, be much different from the subsidies offered by government-funded agencies, or from payments to foster parents and to group homes, under current placement schemes.
One type of subsidy that has received considerable support is a tax-credit for adopting parents (Clinton 1996), which has been included in the U.S. Adoption Promotion and Stability Act of 1996. While this tax credit will surely increase the demand for adoptable infants, the hope of its framers is that it would also encourage adoption rather than fostering of other children (Shoop 1994). Another effect of the subsidy is that it brings private adoptions and grey-market adoptions (a euphemism applied to private adoptions which are legal but which many adoption agencies think are immoral and ought to be illegal) within the financial reach of middle and lower-middle income households. Interestingly, schemes such as this could also be used to address the concerns of those who object to more market-oriented allocation schemes on the grounds that under such schemes, less wealthy households would be outbid for the more desirable children. It isn’t clear, though, why this result would be particularly bad, or any more or less desirable than the same result for automobiles, houses, clothing, etc., all of which have higher qualities which tend to be acquired most often by wealthier households.
Many people have been concerned about the effects of transracial adoptions on the ability of the adoptee to identify culturally and racially with its heritage. Because of these concerns, efforts have been made to avoid or reduce the numbers of transracial adoptions. Recent research has concluded, however, that in the case of transracial adoptions involving African-Americans, there is “…no concrete evidence for proving the occurrence of psychological harm to African-American children” (Alexander and Curtis 1996).
It is not unusual that alternatives develop when market forces are constrained by government policy. So it is with the parenthood rights to adoptable children. Private, foreign, and grey-market adoptions have all become increasingly commonplace over the past three decades. The growing practice of foreign adoptions has been a particularly strong response to shortages and low prices in industrialized countries (see Landers and Christensen 1987, Gubernick 1991b, and Ning 1992), leading some writers to worry about the extent to which the transactors are making informed decisions and not being exploited (Hermann and Kasper, 1992), though generally it is difficult to see how expansion of the choice set makes people worse off.
One final area of concern is the contractual agreement between adopting couples and another female for the latter to be artificially inseminated by the male of the adopting couple. This process, commonly referred to as “surrogate motherhood” has raised ethical questions, but the legal framework for the exchanges has evolved fairly quickly and explicitly. The emergence of this particular type of transaction can be ascribed almost entirely to shortages in the other markets for parenthood rights to children. Without those shortages, this supply response would not be so likely to be induced.
Market Evolution
The economic analysis of adoptions is a comparatively recent field of research. Serious shortages did not emerge until the late 1960s and early 1970s. Since then, there have been strong legal proscriptions on the use of markets to alleviate the shortages, but market forces have nevertheless had a strong influence on adoptions. Private adoptions, with large payments to intermediaries and to the biological parents, are commonplace; government-backed bounties are in place to encourage the adoption of children who would otherwise face a childhood of foster and group homes. Although markets will probably never become completely unfettered in this arena, market forces will continue to shape the evolution of the institutions that regulate the intermediation between buyers and sellers of the parenthood rights to children.
BIBLIOGRAPHY
Alexander, R. and Curtis, C.M. 1996. A review of empirical research involving the transracial adoption of African American children. Journal of Black Psychology 22: 223-235.
Bartholet, E. 1994. What’s wrong with adoption law? Trial 30: 18-23.
Clinton, W. 1996. Letter to Congressional leaders on the “Adoption Promotion and Stability Act of 1996.” Weekly Compilation of Presidential Documents 32: 797.
Donnelly, B.W. and Voydanoff, P. 1996. Parenting versus placing for adoption: consequences for adolescent mothers. Family Relations 45:427-434.
Gubernick, L. 1991a. How much is that baby in the window? Forbes 148: 90-94.
Gubernick, L. 1991b. Precious imports (adoptable babies from foreign countries) Forbes 148: 98.
Hansen, M. 1993. Custody case brings calls for reform: advocates for children, birth parents disagree on need for new adoption laws. American Bar Association Journal 79: 28-29.
Hellwege, J. 1995. More courts allow adoptive parents, children to sue for “wrongful adoption”. Trial 31: 12-14.
Hermann, K.J. and Kasper, B. 1992. International Adoption: the exploitation of women and children. Affilia Journal of Women and Social Work 7: 45-58.
Landers, R.K. and Christensen, B.J. 1987. Independent adoptions. Editorial Research Reports 22: 646-655.
Lowe, A.D. 1996. New laws put kids first; reforms stress protection over preserving families. American Bar Association Journal 82: 20-21.
Medoff, M.H. 1993. An empirical analysis of adoption. Economic Inquiry 31: 59-70.
Ning, L. 1992. Foreign adoption of Chinese children legalized. Beijing Review 35: 23-25.
Palmer, J.P. 1986. The social cost of adoption agencies. International Review of Law and Economics 6:189-203.
Posner R. and Landes, E. 1978. The economics of the baby shortage. Journal of Legal Studies 7: 323-48.
Rubin, A.J., Katz, J.L., and Tin, A. 1996. Adoption would be easier under House measure. Congressional Quarterly Weekly Report 54: 1178.
Shoop, J.G. 1992. Some unwed fathers can block adoptions. Trial 28: 14-15.
Shoop, J.G. 1994. “Ounce of prevention” proposed for adoption law. Trial 30: 12-13.
Society 1993. Adoption or maladoption? 30: 2.
Wierzbicki, M. 1993. Psychological adjustment of adoptees: a meta-analysis. Journal of Clinical Child Psychology 22: 447-454.
Lisa wrote:
Excellent research on Adoption! Have you seen the new Foreign Policy paper on International adoption called “The Lie we Love” Here is a copy
http://www.foreignp olicy.com/ story/cms. php?story_ id=4508&print=1
The Lie We Love
By E. J. Graff
November/December 2008
Foreign adoption seems like the perfect solution to a heartbreaking imbalance: Poor countries have babies in need of homes, and rich countries have homes in need of babies. Unfortunately, those little orphaned bundles of joy may not be orphans at all.
ALEXANDER MARTINEZ/AFP/ Getty Images
Who’s your mommy?: Parents might never know if their adopted child is truly an orphan.
Web Extra: For a photographic tour of the global baby trade, visit: ForeignPolicy. com/extras/adoption.
We all know the story of international adoption: Millions of infants and toddlers have been abandoned or orphaned—placed on the side of a road or on the doorstep of a church, or left parentless due to AIDS, destitution, or war. These little ones find themselves forgotten, living in crowded orphanages or ending up on the streets, facing an uncertain future of misery and neglect. But, if they are lucky, adoring new moms and dads from faraway lands whisk them away for a chance at a better life.
Unfortunately, this story is largely fiction.
Westerners have been sold the myth of a world orphan crisis. We are told that millions of children are waiting for their “forever families” to rescue them from lives of abandonment and abuse. But many of the infants and toddlers being adopted by Western parents today are not orphans at all. Yes, hundreds of thousands of children around the world do need loving homes. But more often than not, the neediest children are sick, disabled, traumatized, or older than 5. They are not the healthy babies that, quite understandably, most Westerners hope to adopt. There are simply not enough healthy, adoptable infants to meet Western demand—and there’s too much Western money in search of children. As a result, many international adoption agencies work not to find homes for needy children but to find children for Western homes.
Since the mid-1990s, the number of international adoptions each year has nearly doubled, from 22,200 in 1995 to just under 40,000 in 2006. At its peak, in 2004, more than 45,000 children from developing countries were adopted by foreigners. Americans bring home more of these children than any other nationality—more than half the global total in recent years.
Where do these babies come from? As international adoptions have flourished, so has evidence that babies in many countries are being systematically bought, coerced, and stolen away from their birth families. Nearly half the 40 countries listed by the U.S. State Department as the top sources for international adoption over the past 15 years—places such as Belarus, Brazil, Ethiopia, Honduras, Peru, and Romania—have at least temporarily halted adoptions or been prevented from sending children to the United States because of serious concerns about corruption and kidnapping. And yet when a country is closed due to corruption, many adoption agencies simply transfer their clients’ hopes to the next “hot” country. That country abruptly experiences a spike in infants and toddlers adopted overseas—until it too is forced to shut its doors.
Along the way, the international adoption industry has become a market often driven by its customers. Prospective adoptive parents in the United States will pay adoption agencies between $15,000 and $35,000 (excluding travel, visa costs, and other miscellaneous expenses) for the chance to bring home a little one. Special needs or older children can be adopted at a discount. Agencies claim the costs pay for the agency’s fee, the cost of foreign salaries and operations, staff travel, and orphanage donations. But experts say the fees are so disproportionately large for the child’s home country that they encourage corruption.
To complicate matters further, while international adoption has become an industry driven by money, it is also charged with strong emotions. Many adoption agencies and adoptive parents passionately insist that crooked practices are not systemic, but tragic, isolated cases. Arrest the bad guys, they say, but let the “good” adoptions continue. However, remove cash from the adoption chain, and, outside of China , the number of healthy babies needing Western homes all but disappears. Nigel Cantwell, a Geneva-based consultant on child protection policy, has seen the dangerous influence of money on adoptions in Eastern Europe and Central Asia , where he has helped reform corrupt adoption systems. In these regions, healthy children age 3 and younger can easily be adopted in their own countries, he says. I asked him how many healthy babies in those regions would be available for international adoption if money never exchanged hands. “I would hazard a guess at zero,” he replied.
THE MYTH OF SUPPLY
International adoption wasn’t always a demand-driven industry. Half a century ago, it was primarily a humanitarian effort for children orphaned by conflict. In 1955, news spread that Bertha and Henry Holt, an evangelical couple from Oregon , had adopted eight Korean War orphans, and families across the United States expressed interest in following their example. Since then, international adoption has become increasingly popular in Australia , Canada , Europe, and the United States . Americans adopted more than 20,000 foreign children in 2006 alone, up from just 8,987 in 1995. Half a dozen European countries regularly bring home more foreign-born children per capita than does the United States . Today, Canada , France , Italy , Spain , and the United States account for 4 out of every 5 international adoptions.
Changes in Western demography explain much of the growth. Thanks to contraception, abortion, and delayed marriages, the number of unplanned births in most developed countries has declined in recent decades. Some women who delay having children discover they’ve outwaited their fertility; others have difficulty conceiving from the beginning. Still others adopt for religious reasons, explaining that they’ve been called to care for children in need. In the United States, a motive beyond demography is the notion that international adoption is somehow “safer”—more predictable and more likely to end in success—than many domestic adoptions, where there’s an outsized fear of a birth mother’s last-minute change of heart. Add an ocean of distance, and the idea that needy children abound in poor countries, and that risk seems to disappear.
But international adoptions are no less risky; they’re simply less regulated. Just as companies outsource industry to countries with lax labor laws and low wages, adoptions have moved to states with few laws about the process. Poor, illiterate birthparents in the developing world simply have fewer protections than their counterparts in the United States , especially in countries where human trafficking and corruption are rampant. And too often, these imbalances are overlooked on the adopting end. After all, one country after another has continued to supply what adoptive parents want most.
In reality, there are very few young, healthy orphans available for adoption around the world. Orphans are rarely healthy babies; healthy babies are rarely orphaned. “It’s not really true,” says Alexandra Yuster, a senior advisor on child protection with UNICEF, “that there are large numbers of infants with no homes who either will be in institutions or who need intercountry adoption.”
That assertion runs counter to the story line that has long been marketed to Americans and other Westerners, who have been trained by images of destitution in developing countries and the seemingly endless flow of daughters from China to believe that millions of orphaned babies around the world desperately need homes. UNICEF itself is partly responsible for this erroneous assumption. The organization’s statistics on orphans and institutionalized children are widely quoted to justify the need for international adoption. In 2006, UNICEF reported an estimated 132 million orphans in sub-Saharan Africa, Asia, Latin America, and the Caribbean . But the organization’s definition of “orphan” includes children who have lost just one parent, either to desertion or death. Just 10 percent of the total—13 million children—have lost both parents, and most of these live with extended family. They are also older: By UNICEF’s own estimate, 95 percent of orphans are older than 5. In other words, UNICEF’s “millions of orphans” are not healthy babies doomed to institutional misery unless Westerners adopt and save them. Rather, they are mostly older children living with extended families who need financial support.
The exception is China , where the country’s three-decades- old one-child policy, now being loosened, has created an unprecedented number of girls available for adoption. But even this flow of daughters is finite; China has far more hopeful foreigners looking to adopt a child than it has orphans it is willing to send overseas. In 2005, foreign parents adopted nearly 14,500 Chinese children. That was far fewer than the number of Westerners who wanted to adopt; adoption agencies report many more clients waiting in line. And taking those children home has gotten harder; in 2007, China ’s central adoption authority sharply reduced the number of children sent abroad, possibly because of the country’s growing sex imbalance, declining poverty, and scandals involving child trafficking for foreign adoption. Prospective foreign parents today are strictly judged by their age, marital history, family size, income, health, and even weight. That means that if you are single, gay, fat, old, less than well off, too often divorced, too recently married, taking antidepressants, or already have four children, China will turn you away. Even those allowed a spot in line are being told they might wait three to four years before they bring home a child. That has led many prospective parents to shop around for a country that puts fewer barriers between them and their children—as if every country were China , but with fewer onerous regulations.
One such country has been Guatemala , which in 2006 and 2007 was the No. 2 exporter of children to the United States . Between 1997 and 2006, the number of Guatemalan children adopted by Americans more than quadrupled, to more than 4,500 annually. Incredibly, in 2006, American parents adopted one of every 110 Guatemalan children born. In 2007, nearly 9 out of 10 children adopted were less than a year old; almost half were younger than 6 months old. “ Guatemala is a perfect case study of how international adoption has become a demand-driven business,” says Kelley McCreery Bunkers, a former consultant with UNICEF Guatemala. The country’s adoption process was “an industry developed to meet the needs of adoptive families in developed countries, specifically the United States .”
Because the vast majority of the country’s institutionalized children are not healthy, adoptable babies, almost none has been adopted abroad. In the fall of 2007, a survey conducted by the Guatemalan government, UNICEF, and the international child welfare and adoption agency Holt International Children’s Services found approximately 5,600 children and adolescents in Guatemalan institutions. More than 4,600 of these children were age 4 or older. Fewer than 400 were under a year old. And yet in 2006, more than 270 Guatemalan babies, all younger than 12 months, were being sent to the United States each month. These adopted children were simply not coming from the country’s institutions. Last year, 98 percent of U.S. adoptions from Guatemala were “relinquishments”: Babies who had never seen the inside of an institution were signed over directly to a private attorney who approved the international adoption—for a very considerable fee—without any review by a judge or social service agency.
So, where had some of these adopted babies come from? Consider the case of Ana Escobar, a young Guatemalan woman who in March 2007 reported to police that armed men had locked her in a closet in her family’s shoe store and stolen her infant. After a 14-month search, Escobar found her daughter in pre-adoption foster care, just weeks before the girl was to be adopted by a couple from Indiana . DNA testing showed the toddler to be Escobar’s child. In a similar case from 2006, Raquel Par, another Guatemalan woman, reported being drugged while waiting for a bus in Guatemala City , waking to find her year-old baby missing. Three months later, Par learned her daughter had been adopted by an American couple.
On Jan. 1, 2008, Guatemala closed its doors to American adoptions so that the government could reform the broken process. Britain , Canada , France , Germany , the Netherlands , and Spain all stopped accepting adoptions from the country several years earlier, citing trafficking concerns. But more than 2,280 American adoptions from the country are still being processed, albeit with additional safeguards. Stolen babies have already been found in that queue; Guatemalan authorities expect more.
Guatemala’s example is extreme; it is widely considered to have the world’s most notorious record of corruption in foreign adoption. But the same troubling trends have emerged, on smaller scales, in more than a dozen other countries, including Albania , Cambodia , Ethiopia , Liberia , Peru , and Vietnam . The pattern suggests that the supply of adoptable babies rises to meet foreign demand—and disappears when Western cash is no longer available. For instance, in December 2001, the U.S. immigration service stopped processing adoption visas from Cambodia , citing clear evidence that children were being acquired illicitly, often against their parents’ wishes. That year, Westerners adopted more than 700 Cambodian children; of the 400 adopted by Americans, more than half were less than 12 months old. But in 2005, a study of Cambodia’s orphanage population, commissioned by the U.S. Agency for International Development, found only a total of 132 children who were less than a year old—fewer babies than Westerners had been adopting every three months a few years before.
Even countries with large populations, such as India , rarely have healthy infants and toddlers who need foreign parents. India ’s large and growing middle class, at home and in the diaspora, faces fertility issues like those of their developed-world counterparts. They too are looking for healthy babies to adopt; some experts think that these millions of middle-class families could easily absorb all available babies. The country’s pervasive poverty does leave many children fending for themselves on the street. But “kids are not on the street alone at the age of 2,” Cantwell, the child protection consultant, says. “They are 5 or 6, and they aren’t going to be adopted.” That’s partly because most of these children still have family ties and therefore are not legally available for adoption, and partly because they would have difficultly adjusting to a middle-class European or North American home. Many of these children are deeply marked by abuse, crime, and poverty, and few prospective parents are prepared to adopt them.
Surely, though, prospective parents can at least feel secure that their child is truly an orphan in need of a home if they receive all the appropriate legal papers? Unfortunately, no.
NURSERY CRIMES
In many countries, it can be astonishingly easy to fabricate a history for a young child, and in the process, manufacture an orphan. The birth mothers are often poor, young, unmarried, divorced, or otherwise lacking family protection. The children may be born into a locally despised minority group that is afforded few rights. And for enough money, someone will separate these little ones from their vulnerable families, turning them into “paper orphans” for lucrative export.
Some manufactured orphans are indeed found in what Westerners call “orphanages.” But these establishments often serve less as homes to parentless children and more as boarding schools for poor youngsters. Many children are there only temporarily, seeking food, shelter, and education while their parents, because of poverty or illness, cannot care for them. Many families visit their children, or even bring them home on weekends, until they can return home permanently. In 2005, when the Hannah B. Williams Orphanage in Monrovia , Liberia , was closed because of shocking living conditions, 89 of the 102 “orphans” there returned to their families. In Vietnam , “rural families in particular will put their babies into these orphanages that are really extended day-care centers during the harvest season,” says a U.S. Embassy spokeswoman in Hanoi . In some cases, unscrupulous orphanage directors, local officials, or other operators persuade illiterate birth families to sign documents that relinquish those children, who are then sent abroad for adoption, never to be seen again by their bereft families.
Other children are located through similarly nefarious means. Western adoption agencies often contract with in-country facilitators—sometimes orphanage directors, sometimes freelancers—and pay per-child fees for each healthy baby adopted. These facilitators, in turn, subcontract with child finders, often for sums in vast excess of local wages. These paydays give individuals a significant financial incentive to find adoptable babies at almost any cost. In Guatemala , where the GDP per capita is $4,700 a year, child finders often earned $6,000 to $8,000 for each healthy, adoptable infant. In many cases, child finders simply paid poor families for infants. A May 2007 report on adoption trafficking by the Hague Conference on Private International Law reported poor Guatemalan families being paid beween $300 and several thousand dollars per child.
Sometimes, medical professionals serve as child finders to obtain infants. In Vietnam , for instance, a finder’s fee for a single child can easily dwarf a nurse’s $50-a-month salary. Some nurses and doctors coerce birth mothers into giving up their children by offering them a choice: pay outrageously inflated hospital bills or relinquish their newborns. Illiterate new mothers are made to sign documents they can’t read. In August 2008, the U.S. State Department released a warning that birth certificates issued by Tu Du Hospital in Ho Chi Minh City—which in 2007 had reported 200 births a day, and an average of three abandoned babies per 100 births—were “unreliable.” Most of the hospital’s “abandoned” babies were sent to the city’s Tam Binh orphanage, from which many Westerners have adopted. (Tu Du Hospital is where Angelina Jolie’s Vietnamese-born son was reportedly abandoned one month after his birth; he was at Tam Binh when she adopted him.) According to Linh Song, executive director of Ethica, an American nonprofit devoted to promoting ethical adoption, a provincial hospital’s chief obstetrician told her in 2007 “that he provided 10 ethnic minority infants to [an] orphanage [for adoption] in return for an incubator.”
To smooth the adoption process, officials in the children’s home countries may be bribed to create false identity documents. Consular officials for the adopting countries generally accept whatever documents they receive. But if a local U.S. Embassy has seen a series of worrisome referrals—say, a sudden spike in healthy infants coming from the same few orphanages, or a single province sending an unusually high number of babies with suspiciously similar paperwork—officials may investigate. But generally, they do not want to obstruct adoptions of genuinely needy children or get in the way of people longing for a child. However, many frequently doubt that the adoptions crossing their desks are completely aboveboard. “I believe in intercountry adoption very strongly,” says Katherine Monahan, a U.S. State Department official who has overseen scores of U.S. adoptions from around the world. “[But] I worry that there were many children that could have stayed with their families if we could have provided them with even a little economic assistance.” One U.S. official told me that when embassy staff in a country that sent more than 1,000 children overseas last year were asked which adoption visas they felt uneasy about, they replied: almost all of them.
Most of the Westerners involved with foreign adoption agencies—like business people importing foreign sneakers—can plausibly deny knowledge of unethical or unseemly practices overseas. They don’t have to know. Willful ignorance allowed Lauryn Galindo, a former hula dancer from the United States , to collect more than $9 million in adoption fees over several years for Cambodian infants and toddlers. Between 1997 and 2001, Americans adopted 1,230 children from Cambodia ; Galindo said she was involved in 800 of the adoptions. (Galindo reportedly delivered Angelina Jolie’s Cambodian child to her movie set in Africa .) But in a two-year probe beginning in 2002, U.S. investigators alleged that Galindo paid Cambodian child finders to purchase, defraud, coerce, or steal children from their families, and conspired to create false identity documents for the children. Galindo later served federal prison time on charges of visa fraud and money laundering, but not trafficking. “You can get away with buying babies around the world as a United States citizen,” says Richard Cross, a senior special agent with U.S. Immigration and Customs Enforcement who investigated Galindo. “It’s not a crime.”
ROCKING THE CRADLE
Buying a child abroad is something most prospective parents want no part of. So, how can it be prevented? As international adoption has grown in the past decade, the ad hoc approach of closing some corrupt countries to adoption and shifting parents’ hopes (and money) to the next destination has failed. The agencies that profit from adoption appear to willfully ignore how their own payments and fees are causing both the corruption and the closures.
Some countries that send children overseas for adoption have kept the process lawful and transparent from nearly the beginning and their model is instructive. Thailand , for instance, has a central government authority that counsels birth mothers and offers some families social and economic support so that poverty is never a reason to give up a child. Other countries, such as Paraguay and Romania , reformed their processes after sharp surges in shady adoptions in the 1990s. But those reforms were essentially to stop international adoptions almost entirely. In 1994, Paraguay sent 483 children to the United States ; last year, the country sent none.
For a more comprehensive solution, the best hope may be the Hague Convention on Intercountry Adoption, an international agreement designed to prevent child trafficking for adoption. On April 1, 2008, the United States formally entered the agreement, which has 75 other signatories. In states that send children overseas and are party to the convention, such as Albania, Bulgaria, Colombia, and the Philippines, Hague-compatible reforms have included a central government authority overseeing child welfare, efforts to place needy children with extended families and local communities first, and limits on the number of foreign adoption agencies authorized to work in the country. The result, according to experts, has been a sharp decline in baby buying, fraud, coercion, and kidnapping for adoption.
In adopting countries, the convention requires a central authority—in the United States ’ case, the State Department—to oversee international adoption. The State Department empowers two nonprofit organizations to certify adoption agencies; if shady practices, fraud, financial improprieties, or links with trafficking come to light, accreditation can be revoked. Already, the rules appear to be having some effect: Several U.S. agencies long dogged by rumors of bad practices have been denied accreditation; some have shut their doors. But no international treaty is perfect, and the Hague Convention is no exception. Many of the countries sending their children to the West, including Ethiopia, Russia, South Korea, Ukraine, and Vietnam, have yet to join the agreement.
Perhaps most important, more effective regulations would strictly limit the amount of money that changes hands. Per-child fees could be outlawed. Payments could be capped to cover only legitimate costs such as medical care, food, and clothing for the children. And crucially, fees must be kept proportionate with the local economies. “Unless you control the money, you won’t control the corruption,” says Thomas DiFilipo, president of the Joint Council on International Children’s Services, which represents more than 200 international adoption organizations. “If we have the greatest laws and the greatest regulations but are still sending $20,000 anywhere—well, you can bypass any system with enough cash.”
Improved regulations will protect not only the children being adopted and their birth families, but also the consumers: hopeful parents. Adopting a child—like giving birth—is an emotional experience; it can be made wrenching by the abhorrent realization that a child believed to be an orphan simply isn’t. One American who adopted a little girl from Cambodia in 2002 wept as she spoke at an adoption ethics conference in October 2007 about such a discovery. “I was told she was an orphan,” she said. “One year after she came home, and she could speak English well enough, she told me about her mommy and daddy and her brothers and her sisters.”
Unless we recognize that behind the altruistic veneer, international adoption has become an industry—one that is often highly lucrative and sometimes corrupt—many more adoption stories will have unhappy endings. Unless adoption agencies are held to account, more young children will be wrongfully taken from their families. And unless those desperate to become parents demand reform, they will continue—wittingly or not—to pay for wrongdoing. “Credulous Westerners eager to believe that they are saving children are easily fooled into accepting laundered children,” writes David Smolin, a law professor and advocate for international adoption reform. “For there is no fool like the one who wants to be fooled.”
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Posted on 06-Nov-08 at 1:15 pm | Permalink