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Both domestic and international laws exist concerning adoption, to protect the interests of children and guarantee respect for families. In times of peace or in situations of internal disturbances, the principles that regulate adoption are clearly set forth in Article 21 of the Convention on the Rights of the Child (CRC) and in the 1993 Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption. During international armed conflicts, these guarantees are supplemented by rules that restrict the evacuation of children, so as to defend the family unit and diminish the risk of adoption fraud and trafficking of children (API Art. 78). These rules can serve as a framework or as guidelines for the work of relief organizations, including in non-international armed conflicts.
In Times of Peace or Situations of Internal Disturbances and Tensions
Article 21 of the Convention on the Rights of the Child
“States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:
- ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counseling as may be necessary;
- recognize that intercountry adoption may be considered as an alternative means of child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin;
- ensure that the child concerned by intercountry adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption;
- take all appropriate measures to ensure that, in intercountry adoption, the placement does not result in improper financial gain for those involved in it;
- promote, where appropriate, the objectives of the present article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs.”
The 1993 Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption
The Convention on Intercountry Adoption was adopted on 29 May 1993, following the Hague Conference on International Private Law, which sixty-six States attended. As of April 2013, ninety States had ratified the Convention.
The aim of the Convention is to combat the trafficking of children. Among other provisions, it establishes that:
- the competent authorities of the country of origin must verify that the child is “adoptable” and not the victim of commercial trafficking;
- the receiving State must verify that the prospective adoptive parents are eligible and suited to adopt and must ensure the legality of the child’s arrival upon its territory;
- each State party to the Convention must create a Central Authority in charge of receiving and examining adoption requests. The aim of the screening done by this Authority is mainly to reduce the number of steps that individuals have to take, such as the “rounds” made by prospective adopters, going from one orphanage to the next, in search of a child. Prospective adopters who are in States Parties must file their request with the Central Authority, which then contacts the Central Authority of the preferred State of origin of the child. In France, for instance, the Central Authority confers this responsibility on the international adoption mission of the Ministry of Foreign Affairs.
Provisions in Case of Evacuation, in Times of International Armed Conflict
No party to a conflict may arrange for the evacuation to a foreign country of children who are not its own nationals, except in the case of a temporary evacuation caused by compelling reasons such as the health, medical treatment, or (except in occupied territory) the safety of the children (API Art. 78.1).
If the parents or legal guardians can be found, their written consent to the evacuation of children to a foreign country is required. If not, the written consent of the persons who by law or custom are primarily responsible for the guardianship of the children is required. Any such evacuation must be supervised by the Protecting Power in agreement with the parties concerned—namely, the party arranging for the evacuation, the party receiving the children, and any party whose nationals are being evacuated (API Art. 78.1).
Whenever an evacuation does occur, each child’s education, including his or her religious and moral education (as desired by the parents), shall be provided with the greatest possible continuity (API Art. 78.2).
For Additional Information: Bartner Graff, Nicole. “Inter-country Adoption and the Convention of the Rights of the Child: Can the Free Market in Children Be Controlled?” Syracuse Journal of International Law and Commerce 27 (2000): 405–30.
Beevers, Kisch. “Intercountry Adoption of Unaccompanied Refugee Children.” Child and Family Law Quarterly 9, no. 2 (1997): 131–47.
Kartz, Lisa M. “A Modest Proposal? The Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption.” Emory International Law Review (Spring 1995): 9.