A pillar of the Hague Adoption Convention: Shared responsibility of receiving countries

This picture was taken right before Korea officially signed the convention on May 24, 2013, Chin Young, then-minister of health and welfare, visited the Hague to sign the document with a promise to ratify it within five years. However, as of today, nearly a decade later, the Korean government has yet to fulfill its promise.

This is the 29th article of the series. It is time to turn our attention to the least discussed, but the most powerful and decisive actors involved in the flow of children for inter-country adoption ― the receiving countries. ― ED.

By Lee Kyung-eun

The Hague Conference on Private International Law (HCCH), an intergovernmental organization facilitating cross-border cooperation in private legal matters, has been collecting the statistics of children adopted transnationally from the immigration authorities of 23 receiving countries, mainly in Western Europe, North America and Australia. In the case of Korea, the main receiving countries (in the order of the largest number of children received) consist of the United States, France, Sweden, Denmark, Norway, the Netherlands, Belgium, Australia, Germany, Canada, Switzerland, Italy and Luxembourg.

Historically, this group of receiving countries has remained stable while the number of sending countries expanded from 20 in the early 1980s to more than 80 in the ensuing decade. The expansion of global adoption coincided with geographical shifts in major sending regions, which included Asia, Latin America, Eastern Europe and Africa.

Although the HCCH collects data from receiving countries, greater attention is dedicated to the statistics provided by the sending countries. The disproportionate scrutiny given to the latter group is understandable in light of the established narrative that many adoption-related problems rest with the sending countries. However, these countries evade responsibility in international forums by deflecting the blame onto "single mothers" or parents "too poor to raise their children." They cite data, most of which comes from private adoption agencies, to attribute responsibility to an unseen marginalized group while simultaneously evoking emotive images of young unwed mothers.

While an overwhelming majority of adopted children came from single mothers, this had not always been the case. Instead, governments found an ideal scapegoat and unloaded an undue amount of culpability onto certain groups of parents, thereby promoting a deficit perspective that individualized structural problems. Instead of addressing systematic failures that compel family separation, failings were placed squarely on the shoulders of parents for their lack of resources, marriage, or some other socially constructed standard. Even in high-level meetings, foreign delegates engaged in the same stale discussions that targeted "young unwed mothers" as the source of inter-country adoption.

Why is the role of receiving countries important?

Claiming that one party represents the impetus for transnational adoption obscures a constellation of factors and the elaborate network of actors involved. We must bear in mind that the receiving countries forged the rules to move children across national borders, then legitimized the procedures by erecting a complex bureaucracy of paperwork and administration. Moreover, we must also remember that while adoption is about a change in family relations, inter-country adoption constitutes a set of immigration procedures that sends a child from the global south to the more affluent global north. Normally, in cases where a child must be sent alone for immigration, the conditions, criteria and scrutiny must meet a certain threshold for safety. But in the case of inter-country adoption, this form of immigration was characterized by procedures and standards so loose that it bordered on negligence.

Eventually, bad practices and poor oversight culminated in a series of inter-country adoption scandals in the 1980s and 1990s and impelled governments to argue that they hadn't been engaged in baby buying and selling. Consequently, those countries involved in inter-country adoption set regulatory measures to prevent further tragedies. The most significant development was the Hague Convention on Inter-country Adoption, established in 1993 at the HCCH. Although most of the sending countries were not members of HCCH, they were invited to sign and ratify the convention, as excluding them would diminish the effectiveness and the purpose of this legal instrument.

As one of the main sending countries, Korea was invited to the drafting meeting of the convention and eventually became a signatory. However, although nearly 100 states have become contracting parties, Korea has done little in this regard. Despite the scale and influence of the country's inter-country adoption program, Korea still cannot commit itself to the obligations of the convention, which guarantee the safety, welfare and rights of children in procedures and matters related to such adoption.

Rethinking the principle of shared responsibility of sending and receiving countries

A pillar of the convention is the shared responsibility of both the sending and receiving countries, and the drafters attempted to operationalize this by delegating specific duties to designated competent authorities and setting out safeguards. After nearly 30 years of operation, the fundamental flaws of this approach have emerged. Where irreconcilable discrepancies exist between family law, child protection systems, and child adoption programs, questions about achieving mutual responsibility remain unanswered. Moreover, in welfare policy, the size of the national budget plays a critical role, but the scope of the convention never extends to such matters.

Adoptees are citizens of receiving countries

In 2020, while leading a workshop on how to make changes to rectify the current situation and realize adoptees' right to access their identity and origins, I proposed, "Use your nationalities and move your governments' to put pressure on the Korean government to make the necessary changes." As soon as the words left my mouth, I instantly felt the atmosphere of the room cool. Some of the adoptee participants seemed to feel uncomfortable, perhaps even slightly unsettled, by my suggestion.

Until now, the discussion on inter-country adoption has focused on the issues of sending countries ― their poverty, unwillingness, incapability, and incapacity to protect their own children. And for these same reasons, they have managed to elude blame and responsibility. In the course of this series, the guest writers and I have tried to illustrate that the dominant narrative of adoption ― a portrayal that paints sending countries as saving their children through adoption ― is an inaccurate and incomplete picture, but we must remember that adoption entails the mutual responsibility of both countries.

This also means that the receiving countries should act to protect and realize the rights of their own nationals to know their true identity. Because after all, adoptees are the citizens of receiving countries.

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 English book "The Global Orphan Adoption System; South Korea's Impact on Its Origin and Development."