Submission to court about Korea's inter-country adoption program (Part 1)

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This article is the 32nd in a series about Koreans adopted abroad. Some of the articles of this series will dedicate space to parts of the Amicus Brief submitted to the Korean court by Dr. Lee Kyung-eun. The Amicus Brief was written as a Q&A to assist the judges in understanding the historic meaning of this case. Special mention and appreciation must go to Raymond Ha (M.A. '21, Stanford Univ.), Hyejin Jang (B.A. '21 Princeton Univ.), Do Yon Lena Kwon (J.D. Candidate '22, Penn Law), Hailey M. Lee (J.D. Candidate '24, Penn Law), and Lydia Lim (J.D. '21, Penn Law) for fully translating this 70-page long brief into English as an act of solidarity for the rights of adoptees. ― ED.

By Lee Kyung-eun

Question: Korea and U.S.' inter-country adoption, which began immediately after the Korean War in the 1950s, increased to the extent that Korea was sending 500 children overseas per month, and 8,000 children per year by the 1980s. Please explain the characteristics of Korea and U.S.' inter-country adoption that led to such a result.

Answer: "Orphan adoption," which originated in Europe post World War II for the emergency rescue of displaced war orphans, became highly systematized in Korea.

Immediately after the Korean War, the Syngman Rhee administration created a special agency within the Ministry of Health and Social Affairs under an emergency order of the president to send abroad children born to Korean women and foreign soldiers. At the time, neither Korea nor the U.S. had a law that provided a basis for a child's inter-country adoption. The process began as a temporary and emergency measure, and the roles were divided between the Korean agency, which gathered the children, and the Holt Adoption Agency, which enlisted adoptive parents in the U.S. and provided means of transport for the children. Unlike the earlier cases in Europe, Korea and the U.S. enacted or amended policies in 1961 relating to inter-country adoption between the two nations, entering a period of full-scale systemization and expansion.

The 1961 U.S. Immigration and Nationality Act (hereinafter "1961 INA") included a provision on "orphans," giving that person official immigration status. In the same year, Korea enacted the Act on Special Cases Concerning Orphan Adoption (hereinafter Special Orphan Adoption Act) as a special act in civil law, defining the status of orphans and providing an official confirmation process.

To summarize these two policies' effect on one another, the 1961 INA provided a basis for a U.S. citizen to bring an orphan of another nationality into the U.S. with the purpose of completing the adoption process within the country. The definition of an "orphan" was much more relaxed from the previous 1948 Displaced Persons Act, erasing the nationality restrictions for foreign orphans, and covering children not only for whom both parents were deceased, but also whose parents had abandoned or deserted the child, or who had only one parent who gave up on providing care for the child. This can be interpreted as the law accepting the unclear definition of the "economic orphan" or "social orphan."

In response to the U.S. regulations, Korea enacted the Special Orphan Adoption Act through the Supreme Council for National Reconstruction in 1961 (the interim and unconstitutional body established after the military coup d'etat by General Park, Chung-hee). Preexisting adoption laws addressed civil rules for adopting foster sons for family succession, but the new law applied a dramatically simplified process for a foreign person's adoption of a Korean orphan. The new law also waived regulations concerning parental caregiving responsibilities for such purpose and finally, it provided a process by which a public agency issued a certificate for a child who becomes an "orphan" by abandonment.

These two laws systematized a mostly simplified version of adoption between the two nations from 1953 to 1960 under Holt's lead, even using unprecedented methods such as proxy adoption, under the excuse of rescuing war orphans. This legal system is still maintained as a fundamental part of the process even today.

Dr. Kim Jin, who was a law professor at Seoul National University from the 1950s and continued his legal studies after emigrating to the U.S., clearly explained the background and significance of this legal system in "Inter-country Adoption of Korean Orphans: A Lawyers Guide," published in 1975 in the U.S.

"American policy encourages and facilitates international adoption through the application of the preferential visa system. Korean law is designed to complement American law by providing children of adoptable status who qualify for the preference . . . . Furthermore, the special law was promulgated by Korea at the urging of United States agencies, which saw the need to facilitate the international adoption system."

The Chosun Ilbo column "Will we do it like giving out puppies?" by Kim Jin, Sept. 7 1962, criticizes the enactment of the Special Orphan Adoption Act. Courtesy of Lee Kyung-eun

Since 1953, Korea has been sending its children abroad for over 68 years. According to the Korean government, the official count of children sent abroad between 1953 and 2019 is 167,864, but according to experts, the number is estimated to be over 200,000.

In June 2015 to mark the 20th anniversary of the Hague Convention, Peter Selman, a British scholar who has dedicated decades to researching inter-country adoption, specifically singled out Korea by including the nation's statistics in his chart of global inter-country adoption trends as shown in .

Stating that "inter-country adoption was born in Asia (South Korea after the Korean War)," Selman emphasized Korea's role in initiating the trend of inter-country adoption. Until the 1980s, children sent by Korea accounted for most of the world's inter-country adoptions. After 1986, in preparation for hosting the Asian Games and 1988 Olympics, the Korean government proactively reduced the number of children sent abroad to improve the nation's image. Paradoxically, this caused the inter-country adoption agencies to look for other sending countries, leading to an increase and regional diversification of the number of major sending countries.

Beginning in the early 1990s, China emerged as one of the main sending countries after establishing its inter-country adoption program. Eventually, as shown in , China and Korea established a sizeable presence in the history of global inter-country adoption. Korea is more critically involved in terms of the duration and aggregate numbers. Taking the population of the two countries into account further accentuates Korea's share of the issue.

As shown from these indices, the unusual nature of Korea's inter-country adoption involves a history of the nation leaving the responsibilities of child protection solely up to private intermediaries.

Korea is the only nation among OECD member states that sends children abroad for inter-country adoption. At a surface-level, the causes for sending a child abroad are explained by the sending nation's economic situation, birthrate and outdated patriarchal system among others. But such factors lose their persuasiveness once examined objectively and more closely. Ultimately, the main factors are whether that sending country is equipped with domestic laws and an administration able to systematically execute them, and whether the government has the will to choose and administer such effective policies.

By the late 1970s, when Plaintiff was adopted, it had already been well over 20 years since the Korean War ended. Korea was growing economically at a rate of approximately 10 percent per year. It would be more reasonable to focus on the inflows of foreign currency, rather than economic hardship, to understand why Korea did not stop sending children abroad. Such economic motivations likely led to perversions of policy and custom, incited manipulation of the law, and created a corrupt system. In the end, the harmful consequences were passed on solely to the adopted children, and for many, led to lifelong suffering.

Lee Kyung-eun (Ph.D. in law) is director of Human Rights Beyond Borders and author of the Korean-language book, "The Children-selling Country," and the English book, "The Global Orphan Adoption System; South Korea's Impact on Its Origin and Development."