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Asia Legal Framework

According to recent research, certain Asian countries have been top origins of intercountry adoption, namely China, India, The Republic of Korea (South Korea), Vietnam etc. [1] Yet Asian countries have different legal framework towards intercountry adoption.

Mainland China & Hong Kong SAR

As China has been party to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Adoption Convention) since 1 January 2006, all adoptions between China and another country must meet the requirements of the Convention and Chinese domestic law. This membership of Hague Adoption Convention is also applied to Hong Kong Special Administrative Region [2][3] as it is territory of People's Republic of China.

On the international level, China also have bilateral agreements with certain country, including Australia (The Family Law (Bilateral Agreements – Intercountry Adoption) Regulations 1998)[4][5] etc.

Domestically, China has two major legislations directly responsible for international adoption affairs. One is Adoption Law of the People's Republic of China (Revised) [6], which deals with general adoption issue. Its Article 21 is specifically linked to international adoption. The other document is Measures for Registration of Adoption of Children by Foreigners in the People's Republic of China [7], solely addressing international adoption issues. Moreover, Article 26 in Marriage Law of the People’s Republic of China [8], also defines adoption in China in a general manner. Another pertinent document is Measures of China Center of Adoption Affairs for Authorizing Foreign Adoption Organizations to Seek Adoptive Families for Children of Special Needs [9] Legally, the China Centre for Children’s Welfare and Adoptions (CCCWA) [10] (which is different from the China Center of Adoption Affairs (CCAA) is the only agency authorized by the Chinese government to regulate and process all inter-country adoptions from China. And China requires all inter-country adoption be handled through government approval instead of any individual application. [11]

Taiwan

Having been one of the major sources of adoptive children, yet Taiwan is not party to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption(Hague Adoption Convention).

Domestically, Taiwan has enforced The Protection of Children and Youths Welfare and Rights Act [12] since May 30th 2012. And according to the Act, all the adoption cases in Taiwan shall consider the national adopter as priority. Besides, all the international adoption cases shall be matched via the legal adoption matching services agency. Except almost the same peer within six degrees of kinship of relatives and five degrees of kinship of relatives by marriage, or one of the couple adopts the other party’s children. Taiwan organizations which provide international adoption service work with foreign agency or governmental authority instead of individuals. [13]

The Republic of Korea (South Korea)

The Republic of Korea (South Korea) is not party to Hague Adoption Convention. South Korea's law requires the use of an adoption agency for the overseas adoption of all Korean orphans, and requires that such agencies are authorized by The Ministry for Health, Welfare and Family Affairs. [14]

On May 24, 2013, it signed the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (the Convention). This is the first step for South Korea in becoming a Convention partner. Adoptions between the United States and South Korea, however, are not yet subject to the requirements of the Convention and relevant implementing laws and regulations. According to the Ministry of Health and Welfare, which will be designated as South Korea's Central Authority, there is no set date when South Korea will deliver its instrument of ratification or when the Convention will enter into force with respect to South Korea. [15]

Domestically, the Republic of Korea (ROK) Special Adoption Act[16], which governs intercountry adoptions from South Korea, went into effect on August 5, 2012. This law prioritizes domestic adoptions and endeavors to reduce the number of South Korean children adopted abroad. Under the Special Adoption Act, each intercountry adoption requires the approval of the ROK Family Court. [17]

India

India is party to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption(Hague Adoption Convention).

In January 2011, India implemented new procedures to provide more centralized processing of intercountry adoptions. In addition to the new guidelines, prospective adoptive parents should be aware of all Indian laws that apply to intercountry adoption. A child can be legally placed with the prospective adoptive parents under the Hindu Adoption and Maintenance Act of 1956 (HAMA), the Guardians and Wards Act of 1890 (GAWA), or the Juvenile Justice (Care and Protection of Children) Act of 2000 (JJA). [18]

Vietnam

Vietnam is party to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Adoption Convention).

Domestically, Vietnam Government has promulgated the Law on Adoption [19] and it took effect from January 1st, 2011. It contains 53 Articles, and addresses both domestic and intercountry adoption. Article 14 of the Vietnamese law outlines the requirements for adopters, which is also applicable to foreign adoptive parents.[20]

Positive consequences of international adoption

General

In most cases, international adoption results from a child whose birth parents were unable to parent and provide for them in the environment of a family instead of an institution such as an orphanage. This can mean the difference between life and death. In other cases, the children may be saved from a life of desperation, abuse, and squalor. Every child needs a family.[21] Further, adopted children are happier and healthier, mentally and physically, than are orphans who are not adopted.[22]

From a legal perspective, it is argued that International Adoption serves Children's Most Basic Human rights, despite the existence of adoption abuses, and justification of both nationalism and heritage.[23]

A recent study by Dutch professor Femmi Juffer challenges the notion that adoption hurts a child’s self-esteem in that adopted kids would unconsciously blame themselves for the loss of their birth families and on some level feel that they hadn't been good enough for their families to keep them. Juffer compiled data from 80 studies and concluded that adopted children are not at risk for low self-esteem, even in the case of interracial adoptions and international adoptions. Differences in race between a child and their adoptive parents did not matter and children from interracial/international-adoption families performed the same as children adopted into families of the same race/culture. In the long term cultural differences were not as problematic as expected, and even older adopted children, those thought to be the most difficult and more severely and permanently damaged, adjusted over time as well. Overall, although adoption may have initial adverse effects and negative experiences for childhood, the children are capable of change and development for the better. But Steven Nickman of Harvard Medical School, who recently[when?] did a review of the adoption literature, says that while Juffer's study is careful and methodologically sound, there are some limits to her research. Essentially, Nickman says, the study doesn't include any of the most difficult cases and as someone who works with adopted kids, Nickman knows that not all adoptions turn out well. Some are incredibly painful. Still, he finds Juffer's work encouraging.[24]

Empirical Cases of China [25][26]

Some research on China intercountry adoption has pointed out certain positive consequences of international adoption with a coverage of adoptee, adoptive parents, origin country and receiving country. Yet it may or may not be appropriate to generalize this specific lesson of China to a global scope.

  • The adoptees (mainly orphans) from China substantially benefit from intercountry adoption:
  1. Generally they experience love and acceptance within their families, despite the fact that as they grow into adulthood, will also increasingly experience some tension over issues related to race and ethnicity. As a matter of child welfare policy, the world community has generally accepted the view that the costs of interracial, intercountry adoption are outweighed by the good of having children placed within a loving family as opposed to the alternative of long-term institutionalization.
  2. Disabled children, who are abandoned, probably receive better treatment after been adopted.
  3. Chinese girls, who are abandoned due to male-preference and One-Child Policy, would benefit psychologically from forming a family. They might also benefit from less gender discrimination.
  • China benefit as a sending country, the large number of children adopted also reduce the burden of Chinese social welfare system.
China has managed to secure significant amounts of adoption fees and donations from foreign adoptive parents and has specifically used these funds to significantly improve its social welfare system. These funds not only improve care of children who will be placed for adoption but also provide for significantly better care, education, and facilities for the many orphans who will grow up within Chinese institutions.

Major Origin and Receiving Countries of Children

Major Origin Countries of Children

File:International adoption TOP TEN STATES OF ORIGIN 2003-2011 (HCCH).tiff
TOP TEN STATES OF ORIGIN 2003-2011 (HCCH)[27]

As shown in the chart, 7 countries (China, Russia, Ethiopia, India, South Korea, Ukraine and Vietnam) remain as major origin countries for almost a decade. Yet there has been slight change in other countries sending most children.

Major Receiving Countries

Based on Selman's research, [28], during the year of 1998 and 2007, the top 10 receiving countries of all 23 reported countries, (ranked from the large to small), are the US , Spain, France, Italy, Canada, Netherlands, Sweden, Norway, Denmark, Australia. Among these 10 countries, the top 5 accounts for more than 80% of overall adoption, and the US is responsible for around 50% of all cases.

The US (as the largest receiving country)

The most common countries for international adoption by parents in the United States for fiscal year 2012 were China (2,697), Ethiopia (1,568), Russia (748), Republic of Korea (627), Ukraine (395), Democratic Republic of the Congo (240), Uganda (238), Nigeria (197), Colombia (195), Taiwan (177), Ghana (171), India (159), Haiti (154), and Philippines (125).[29] Other less common countries include Bulgaria, Norway, Australia, Kenya, Canada, Haiti, and Poland. These statistics can vary from year to year as each country alters its rules; Romania, Belarus and Cambodia were also important until government crackdowns on adoptions to weed out abuse in the system cut off the flow.

Adoption from Ethiopia has become an increasingly popular option for adoptive families in the U.S. According to the statistics of U.S. Department of State,[30][31] the number of adoptees from Ethiopia has grown sharply from 42 (in 1999) to 1567 (in 2012).

Sex ratio of children adopted (US)

Generally, the US adopt more girls than than. From 1999 to 2012, around 62% adoptees by US families are girls, and only 38% are girls. [32] Yet this discrepancy between female and male adoptees has gradually declined. In other words, now the gender ratio of girls and boy adopted is more even and balanced. [33]

China is the one major country where girls adopted far outnumber boys; due to the Chinese culture's son preference in combination with the official planned birth policy implemented in 1979, around 90- 95% of Chinese children adopted by the US families are girls. [34][35] Although India also has a noticeable excess of girls being adopted (around 70%), [36]

South Korea is the one country that has a relatively large excess of boys being adopted; about 60% are boys.[37] This is a switch from the 1980s, when most Korean adoptees (about two-thirds) were girls.[citation needed]

Countries suspending/ or be suspended adoption by US families

There have been several countries (including certain major sending countries) are completely not or only partially accepting intercountry adoption request from US families for certain reasons.

  • Russia
In December 2012, Russian President Vladimir Putin signed into law a measure, effective January 1, 2013, banning the adoption of Russian children by US families.[38] The ban was seen as diplomatic retaliation for the passage of the Magnitsky Act in the US, while popular support in Russia focused on incidents of abuse to adoptees by US families.[38] In January 2013 about 20,000 people marched against the law in Moscow.[39]
  • India (temporarily) [40]

The US also suspended adoption relationship between certain countries, due to Hague Convention or other rationales.

  • Vietnam (temporarily, expected to be resumed)[41]
  • Guatemala
  • Nepal
Although Nepal has not closed it doors for adoption, the United States government has suspended adoptions from Nepal. Documents that were presented documenting the abandonment of these children in Nepal have been found to be unreliable and circumstances of alleged abandonment cannot be verified because of obstacles in the investigation of individual cases.[42]


Reference:

  1. ^ Selman, P. (2013) Key Tables for Intercountry Adoption: Receiving States 2003-2012 ; States of Origin 2003-2011 http://www.hcch.net/upload/2013selmanstats33.pdf
  2. ^ http://adoption.state.gov/country_information/country_specific_info.php?country-select=hong_kong
  3. ^ http://www.swd.gov.hk/doc/fcw/intercountry_adoption/Information%20Sheet%20for%20Intercountry%20Adoption_Eng_Sept%202013_final2.pdf
  4. ^ http://www.dfat.gov.au/publications/passports/Policy/Citizenship/BornOverseas/Adoptionoverseas/index.htm
  5. ^ http://www.comlaw.gov.au/Details/F1998B00229/Explanatory%20Statement/Text
  6. ^ http://www.npc.gov.cn/englishnpc/Law/2007-12/12/content_1383868.htm
  7. ^ http://english.gov.cn/2005-08/27/content_26769.htm
  8. ^ http://www.npc.gov.cn/englishnpc/Law/2007-12/13/content_1384064.htm
  9. ^ http://english.gov.cn/2005-09/27/content_70523.htm
  10. ^ http://cccwa.mca.gov.cn
  11. ^ http://english.gov.cn/2005-08/27/content_26769.htm
  12. ^ http://glrs.moi.gov.tw/EngLawContent.aspx?Type=E&id=99
  13. ^ http://www.adoptinfo.org.tw/english/Adoption.aspx
  14. ^ http://adoption.state.gov/country_information/country_specific_info.php?country-select=south_korea
  15. ^ Adoption Notice: The Republic of Korea Signs the Hague Adoption Convention http://adoption.state.gov/country_information/country_specific_alerts_notices.php?alert_notice_type=notices&alert_notice_file=south_korea_2
  16. ^ http://justicespeaking.files.wordpress.com/2010/01/special_adoption_act2012.pdf
  17. ^ Notice: Korea Begins Implementing Special Adoption Act, http://adoption.state.gov/country_information/country_specific_alerts_notices.php?alert_notice_type=notices&alert_notice_file=south_korea_1
  18. ^ http://adoption.state.gov/country_information/country_specific_info.php?country-select=india
  19. ^ http://www.moj.gov.vn/vbpq/en/Lists/Vn%20bn%20php%20lut/View_Detail.aspx?ItemID=10483
  20. ^ http://arcadopt.wordpress.com/country-programmes/vietnam/vietnamese-law-on-adoption/
  21. ^ The Irreducible Needs of Children: What Every Child Must Have to Grow, Learn, and Flourish; 2000 by T. Berry Brazelton, M.D. and Stanley I. Greenspan, MD; ISBN 0-7382-0516-8
  22. ^ Brodzinsky, D. M. "Long-Term Outcomes in Adoption." The Future of Children 3, 1993
  23. ^ Bartholet, Elizabeth. "International adoption: The human rights position." Global Policy 1.1 (2010): 91-100.
  24. ^ "Study: Adoption Not Harmful to Child's Self-Esteem," NPR
  25. ^ Main arguments are borrowed from: Luo, Nili, and David M Smolin. 2004. “Intercountry Adoption and China: Emerging Questions and Developing Chinese Perspectives.” Cumb. L. Rev. 35: 597. http://heinonline.org/HOL/LandingPage?handle=hein.journals/cumlr35&div=26&id=&page=
  26. ^ Johnson, Kay. 2002. “Politics of International and Domestic Adoption in China.” Law & Society Review 36 (2) (January 1): 379–396. doi:10.2307/1512181.
  27. ^ Selman, P. (2013) Key Tables for Intercountry Adoption: Receiving States 2003-2012 ; States of Origin 2003-2011, http://www.hcch.net/upload/2013selmanstats33.pdf
  28. ^ Selman, Peter. “The Rise and Fall of Intercountry Adoption in the 21st Century.” International Social Work 52 (5): 575–594.
  29. ^ FY (Fiscal Year) 2012 Annual Report on Intercountry Adoption, http://adoption.state.gov/content/pdf/fy2012_annual_report.pdf]
  30. ^ FY (Fiscal Year) 2012 Annual Report on Intercountry Adoption, http://adoption.state.gov/content/pdf/fy2012_annual_report.pdf U.S. State Department]
  31. ^ http://adoption.state.gov/country_information/country_specific_info.php?country-select=ethiopia
  32. ^ source: the statistics section of International Adoption, under the US Government, http://adoption.state.gov/about_us/statistics.php, select "All Countries" for detailed figure
  33. ^ source: the statistics section of International Adoption, under the US Government, http://adoption.state.gov/about_us/statistics.php, select "All Countries" and different years for detailed figure and comparison
  34. ^ http://www.pbs.org/pov/offandrunning/adoption_fact_sheet.php
  35. ^ Information Packet: The Adoption of Chinese Girls by American Families, National Resource Center for Foster Care and Permanency Planning (2003), http://www.hunter.cuny.edu/socwork/nrcfcpp/downloads/information_packets/chinese-girls-adopted-by-americans.pdf
  36. ^ source: the statistics section of International Adoption, under the US Government, http://adoption.state.gov/about_us/statistics.php, select "India" for detailed figure
  37. ^ source: the statistics section of International Adoption, under the US Government, http://adoption.state.gov/about_us/statistics.php, select "South Korea" for detailed figure
  38. ^ a b [1]
  39. ^ "Russians march against adoption ban". 3 News NZ. January 14, 2013.
  40. ^ http://adoption.state.gov/country_information/country_specific_alerts_notices.php?alert_notice_type=alerts&alert_notice_file=india_2
  41. ^ http://adoption.state.gov/country_information/country_specific_info.php?country-select=vietnam
  42. ^ http://eaci.com/
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