Intercountry Adoption from the Philippines and International Human Rights Law
Between 2002 and 2012 (the most recent year for which statistics are available), there has been a dramatic decrease (43 percent) in the number of U.S. adoptions from the Philippines. In 2002, U.S. citizens adopted 218 Filipino children. In 2012, adoptions from the United States numbered 124.
At the same time, the number of orphaned or abandoned children in the Philippines is on the rise but without a concomitant increase in the number of international adoptions in any receiving country. As of 2012, UNICEF estimated there were 1.9 million orphans in the Philippines. Orphans from Typhoon Haiyan alone number in the thousands. While the need for long-term placements is urgent, the number of intercountry adoption decrees issued from the Philippines reached only 287 in 2013 for all receiving countries, the lowest number on record in the last five years.
Some commentators attribute the reduction in intercountry adoptions to complications imposed by international human right laws. Building on the U.N. Convention on the Rights of the Child, the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption of 1993 was adopted to provide safeguards for parties to international adoption. The Hague Convention aims to protect the best interests of children and preserve the fundamental rights accorded to them by international law. It does this by, among other means, helping to prevent child trafficking and child laundering and helping to enable children to stay with their families of origin as a matter of priority.
The Philippines and the United States are both parties to the Hague Convention. This means that all adoptions between the Philippines and the United States must meet the requirements of the Convention, as well as laws of the Philippines and the United States. In keeping with the Hague Convention, a child from the Philippines is eligible for adoption only after the child’s biological parents execute a “deed of voluntary commitment” relinquishing custody of the child. In the case of abandonment, the Philippines Department of Social Welfare and Development (DSWD) is authorized to issue a certificate declaring an abandoned child legally available for adoption after a three-month waiting period.
According to the State Department, intercountry adoption processes are functioning in the Philippines at this time. U.S. citizens interested in adoption may initiate that process by contacting a U.S. Hague-accredited adoption service provider that also has been authorized by the Philippine Central Adoption Authority, the Inter-Country Adoption Board (ICAB), to seek information about that process. The ICAB acts as the central authority on matters concerning the intercountry adoption of Filipino children and its principal functions include verifying that a child is eligible for adoption. To this end, the ICAB will determine whether a proposed placement is in the best interest of the child, whether the birth parent or legal custodian has freely consented to the adoption, and whether any payment has been made to induce consent. Should the ICAB reach a favorable determination, prospective adoptive parents will receive a matching proposal. Upon acceptance of the proposed match, the ICAB will issue placement authority and the child may obtain an immigration visa and travel to the United States for a trial custody period to be followed by petitioning a U.S. court for adoption. The ICAB maintains that prospective adoptive placements should not be disrupted by the typhoon recovery efforts.
Despite these assurances, some commentators argue that the Hague Convention has created procedural and substantive restrictions that disadvantage children by complicating the adoption process and delaying permanency for children. As a result of heightened procedural requirements, greater numbers of children are institutionalized for longer periods of time. These children incur increased developmental and psychological harms. At the same time, they face diminished prospects for ever moving into a permanent family.
At the other end of the spectrum, natural disasters present the risk of increased trafficking and illegal adoptions. In Haiti, for example, considerable controversy followed large-scale airlifts of children to other countries for international adoption. The Haitian government imposed a temporary moratorium on international adoptions but allowed humanitarian parole cases to proceed. The “Humanitarian Parole Program for Haitian Orphans,” the first of its kind, lifted visa requirements for orphans whose adoptions had been approved by Haitian authorities and who had been matched with prospective parents in the United States.
Subsequently, orphanages throughout Haiti, whether or not affected by the earthquake, were nearly emptied without government oversight or investigation into a child’s background and family origin. Approximately 2,100 children were adopted out of Haiti. Of the 1,150 adopted to the United States, only about 350 represented cases that were nearly final when the earthquake struck and the remainder were humanitarian parole cases.
Competing Goals for Practitioners
In the context of a natural disaster, practitioners face two competing goals: (1) ensuring that child victims have a permanent home as soon as possible and (2) safeguarding against the risk of trafficking, unauthorized adoptions, and interference with a child’s right to know and be raised by his or her family of origin. To be sure, a strong case can be made for prioritizing either goal. Children need stable, nurturing environments to thrive. In some countries ravaged by disasters, there are not enough homes for unparented children, and restrictions on international adoption frustrate the best chance for orphaned children to escape the harmful conditions associated with institutionalization.
At the same time, intercountry adoption presents an opportunity for exploitation. Some commentators argue that intercountry adoption exploits children by depriving them of their birth heritage and biological connections. Intercountry adoption can be exploitative when it is facilitated by illegal payments to birth parents, kidnaping children from parents, or lying to parents about the consequences of relinquishing their parental rights. These competing concerns, however, are not mutually exclusive, and children can be served well by developing policies that account for the lasting and harmful impact of institutionalization, as well as the documented abuses of vulnerable populations in the aftermath of natural disasters.
Improving Outcomes for Children
The main priority for children should be implementation of procedures for the registration of children, identification of family, and permanent placements. Because adherence to the Hague Convention compels allowing a child to stay in his or her country of origin as a matter of priority, systems to identify children, connect them to their families, and provide timely placements should be implemented. Such action is consistent with the Minimum Standards for Child Protection in Humanitarian Action compiled by UNICEF. These standards also call for the identification and documentation of all separated and unaccompanied children, along with their personal circumstances. In most situations, this will be followed by reunification. Indeed, UNICEF reports that, in sample contexts including the Philippines, 79 to 100 percent of children are reunified after disasters.
As of December 2013, the Philippines’ DSWD, in collaboration with local governments and local and international nongovernmental organizations, implemented the Rapid Family Tracing and Reunification Program. Local government workers registered 87 children and, in doing so, observed that many survivors of Typhoon Haiyan took custody of orphaned children. Although provisions were and are being made for separated and orphaned children, government workers stressed the need for registration in order to assure access to services. Registered children can receive proper psychological and material support for their recovery. Additionally, relatives and individuals who assume custodial obligations for separated and orphaned children can become foster parents and avail themselves of associated benefits.
Tracing systems will accomplish much in terms of reunification and reducing fraud in international adoption. However, they present a long-term solution and implementation comes with considerable challenges. The Philippines, for example, is an archipelago made up of thousands of islands. These islands consist of 117 charted cities in 79 provinces and also 41,936 villages spread among the islands. Numerous geographical subdivisions make coordinated response efforts difficult. They also impede the development of infrastructure necessary to reach children in remote areas. Additionally, the Philippines is marked by widespread poverty and the country spends a significant portion of its budget on servicing debt, which slows the development of infrastructure and response programs.
Further complicating matters is the lack of birth registration. Nearly 1.7 million Filipino children do not have birth documentation. This makes Filipino children particularly vulnerable to exploitation because there is no way to identify them or connect them to their families of origin, much less determine whether they have been orphaned or merely separated from their families.
Given these challenges, there are ample opportunities for legal practitioners to improve outcomes for children orphaned as a result of natural disasters. Principally, practitioners should advocate for funding and technical support toward the development of tracing systems. Simultaneously, they should engage in concurrency planning for children. Concurrent planning allows a country of origin to pursue domestic placement options as a primary goal but also requires ongoing efforts to identify and secure adoptive placements. The process ensures the expedient permanent placement of orphaned children by reducing procedural delays that follow when domestic options fail.
In the fall of 2013, a bill called the Children in Families First Act of 2013 was introduced in the U.S. Congress. It recognizes that all children have a fundamental human right to “the loving care of permanent, safe, and nurturing families.” As a means of preserving this right for children, the bill calls for concurrency planning and timely international adoption where a domestic placement that serves the child’s best interest and provides for permanent care is not quickly available. Such legislation recognizes that the lives of children cannot be suspended while countries work to implement procedures that will ensure kinship care or domestic adoption as a matter of priority.
To be sure, there will be more disasters, but the devastation that follows does not need to be the end of the story for children. Efforts can and should be made to facilitate the timely reunification of families. Where reunification fails, international adoption presents a viable alternative for permanency and, in some instances, the only option for children. Accordingly, efforts should be made to facilitate and remove barriers to permanent placements for children, including intercountry adoption, in order to promote and preserve the long-term well-being of children.