Person:

Bartholet, Elizabeth

Permanency in the form that truly serves children’s best interests will often be found only in international adoption. Permanency in dysfunctional birth families, or in institutions or typical foster care, does not provide the nurturing parenting children require. This article focuses on the strategic thinking needed to advance international adoption as a solution for more of the world’s unparented children. It urges that we who believe in such adoption recognize the crisis today, but at the same time maintain belief in the future. International adoption is consistent with many important globalization trends – international trade and commerce, emigration and immigration, intermarriage between people from different racial, ethnic, and national groups. The article urges further that the relatively small and fragile group of adoption advocates work together, and reach out to new groups, including church organizations committed to the importance of providing true families for children. But at the same time it urges that they not compromise on principles key to child well-being, but fight for children’s right to international adoptive homes and their related right to early, permanent, and nurturing parenting, and reject the false romanticism surrounding birth and national heritage.

This is the introduction to a special issue of articles on international adoption, summing up their relevance to the debate in the field. International adoption is in turmoil, with a dramatic reduction in recent years in the number of children placed in adoptive homes. These articles provide important new support for international adoption as an appropriate way to advance children’s rights and interests. And they provide information about ways to address any problems of corruption and abuse, without penalizing unparented children by denying them the homes they need.

This article takes seriously the idea of intergenerational justice for children, and takes as starting premises that child interests count as equivalent to adult, and that we owe justice not just to existing children but also to the next generation. It argues that intergenerational justice demands a major restructuring of policies throughout the world governing adoption, reproduction, and child welfare. We now encourage the reproduction of more children than we can care for, provide limited child welfare enabling poor parents to care for their children, and discourage adoption of existing children who need homes. These policies are perverse, unfair not just to children but adults as well. Societies that damage their children will have to live with those children when they grow up, children at high risk for crime, substance abuse, unemployment, poverty and for mistreating the next generation. We need to reverse the perverse. We need to change the pronatalist and anti-contraception policies that encourage the reproduction of children who won’t be born healthy or receive nurturing care, and we need to encourage adoption both domestic and international.

This article argues that what we call the “child welfare” system has traditionally focused more on adult than on child welfare, placing greater emphasis on family preservation than warranted. It argues further that while the system purports to value research as a guide to policy, research is too often designed to serve predefined ideological goals, and to advance family preservation rather than examining what policies best serve child interests. It shows how these themes played out in two recent conferences sponsored by the author’s Child Advocacy Program at Harvard Law School. The first conference addressed claims made by the “Racial Disproportionality Movement,” and showed that actual black and white maltreatment rates closely track official rates, indicating that a child-friendly system would focus not on claimed racial discrimination but on reducing actual maltreatment. The second revealed the existence of many promising prevention and protection strategies, but also the ongoing power of the adult rights agenda and the constraints it puts on promising reforms and truly illuminating research. We could do better by children. But to do so we must transform the values that guide the child welfare system, honor child rights equally with adult, and recognize the centrality for children of the right to grow up in a nurturing family.

This revised speech characterizes the dramatic decline in international adoption since 2004 as a major child human rights tragedy, deliberately created by governmental and NGO policy-makers. It contrasts U.S. human rights policy imposing sanctions for the violation of adult human rights, to U.S. failure to act in the face of child human rights violations. It calls for a change in U.S. policy that would: (1)Hold countries accountable for the human rights violations inherent in their shutdowns of international adoption and their institutionalization of children; and (2)Stop enabling UNICEF, through our funding, to eliminate international adoption as an option for children.

Millions of infants and young children worldwide are desperately in need of nurturing homes. Many are living in institutions, and many on the streets, and almost all these children will either die in these situations, or if they survive, will emerge into adulthood so damaged by their childhood experience, and so deprived of parenting, educational and other essential childhood opportunities, that they will be unable to function in the worlds of family and work. International adoption could provide significant numbers of nurturing homes for these children. However current policy restricts international adoption, limiting its ability to provide such homes. Moreover most of the powerful organizations of the world that claim to represent children's rights and interests have joined with other forces opposing international adoption.

This article argues that effective child advocacy is a challenge, given the fact that infants and young children are unable to voice their views or promote their interests, and the related risks that adults will use children to further various adult agendas. True empathy is required to imagine what children would want were they able to think rationally and make informed decisions. But if we were to imagine homeless children capable of making such decisions, then it seems obvious that they would choose international adoption given the horrors of institutional and street life, and the limited options for any kind of adequate home care in their countries of birth. Opposition to international adoption cannot be justified based on any best interest of the child principle, despite the claims of many children's rights organizations. Instead it is grounded in a group of commonly shared but deeply flawed ideas about children and the role of the state, and driven by adult agendas that are not truly informed by children's interests.

The Conference, Race & Child Welfare: Disproportionality, Disparity, Discrimination: Re‐Assessing the Facts, Re‐Thinking the Policy Options, took place January 28‐29, 2011, at Harvard Law School, Cambridge, MA

It is exciting simply to be having this conference focused on adoption law and policy. I remember some nine years ago starting to plan a course dealing with adoption issues and wondering whether I would be able to justify its place in the Harvard Law School curriculum. It is also exciting to look around the room at the wonderfully diverse and knowledgeable group of people the Duke Journal of Gender Law & Policy gathered here to participate in these discussions of important issues involving adoption and the meaning of family. My topic today has to do with adoption and, more particularly, adoption in relation to reproduction. By reproduction I mean three different things: (1) traditional reproduction, or the production of a child through normal intercourse between one man and one woman; (2) infertility treatment, or the use of medical technology to assist a man and a woman to produce a child using his sperm and her egg and womb; and (3) a variety of child producing and parenting arrangements that I have collectively termed "technologic adoption." By the latter, I mean arrangements that result in the social equivalent of either step-parent adoptions or full adoptions, where the child is produced in order to be raised by one or more parents who will not be genetically or biologically related. I am referring to such practices as donor insemination, surrogacy, both in its "traditional" and gestational form, egg donation or sale, and embryo donation or sale. One thing I ...

This article discusses the significance of the United States ratification of the CRC, concluding that even if the treaty is not self-executing, ratification would make a major difference. It would enable the United States to better promote children’s rights abroad, and it would push the United States to develop its domestic law in dramatically new directions that empower children. The CRC provides children with powerful affirmative rights and imposes reciprocal duties on nation-states. It provides rights to participate, including rights to be heard and to make decisions on personal and political matters; rights to receive important benefits, including health, support, and education; rights to protection against maltreatment; and rights to nurturing parental care. All this contrasts with U.S. law’s negative rights tradition, its emphasis on parental rights, limited recognition of children’s rights, and related restriction of state power to protect children. U.S. ratification could have a positive impact, particularly in connection with parental relationship rights and related maltreatment issues. However, there is also a risk of negative impact, given the problematic CRC provisions on international and transracial adoption. The solution is ratification with a reservation regarding Articles 20 and 21.