Triangulating Children’s Rights Law: Which Future for Intercountry Adoptions in Europe?

Summary

ABSTRACT

There is a growing movement against intercountry adoptions. In several European countries, a debate on the future of intercountry adoption is raging, in light of scandals and an increasingly vocal community of adopted children.

This contribution looks into the future of intercountry adoption by triangulating global children's rights law – the Convention on the Rights of the Child (CRC) and to a lesser extent the Hague Convention on Intercountry Adoption – with European law of the Council of Europe, the Organisation for Security and Cooperation in Europe and the European Union. The CRC does not encourage intercountry adoptions, but neither does it prohibit them. All instruments see intercountry adoption as a subsidiary care solution. The best interests of the child, which are central to each adoption regulatory framework, do not in themselves offer any conclusive guidance: they can be invoked to support or challenge intercountry adoptions. Forceful charges of commodification of children and arguments about neo-colonialism and misguided humanitarianism, compounded by practices of child laundering and child trafficking, raise questions about the moral justifiability of intercountry adoption as a form of alternative care.

INTRODUCTION

Over the last 14 years, there has been a steep decline (as high as 90%) in intercountry adoptions in Europe. For example, for the three European countries in the top five of receiving states, Italy experienced a decline of 41%, Spain of 92% and France of 85%, when comparing numbers in 2005 and in 2018. The main reason for this decline is a drop in supply of adoptable minors, rather than a fall in demand. The drop in supply can be explained by a number of factors, including a decrease in orphans, an increase in alternative care options in the countries of origin and political decisions to combat child trafficking or to prohibit adoption by same-sex couples. Renewed concerns have been reiterated about illegal (intercountry) adoptions. There is also a growing movement against intercountry adoptions per se, regardless of illegality, due to concerns with neo-colonialism and misguided humanitarianism, amongst others, as will be discussed further below.

Several European countries have witnessed a debate on the future of intercountry adoption, in light of scandals and an increasingly vocal community of adopted children. Commissions of inquiry have been set up to assess what has gone wrong in intercountry adoptions, what the role and responsibility of the state has been and how the situation can be remedied.