Adoptees' nationality of state of origin and negligence of duty of protection

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This article is the seventh in a series about Koreans adopted abroad. Apparently, many Koreans never expected that the children they had sent away via adoption would return as adults with questions demanding to be answered. However, thousands of adoptees visit Korea each year. Once they rediscover this country, it becomes a turning point in their lives. We should embrace the dialogue with adoptees to discover the path to recovering our collective humanity. ― ED.

By Lee Kyung-eun

From early 2000, Korea witnessed the permanent return of children it had once sent to the U.S. for adoption. Unlike adoptees visiting on motherland tours, these individuals had been deported by the U.S. after committing petty crimes. Despite having grown up in the U.S., they had never acquired American citizenship and therefore were regarded as foreign criminals since their Korean nationality remained intact.

These cases have had tragic consequences. In 2011, Philip Clay, born Kim Sang-pil in the 1970s, suffered such a fate. Like the other deportees, his adoption was never finalized, and he failed to acquire U.S. citizenship. After a long struggle to adjust to Korea, he committed suicide in 2017. While Clay had Korean citizenship, his adoption should have guaranteed him U.S. nationality. Adoption is meant to serve as a permanent and secure solution for children deprived of parental care, and becoming a national of the receiving country represents a fundamental basis for achieving such security.

While notions of nationality had once been regarded as the rights of a country to secure resources for conscription, mobilization, and taxation, they eventually shifted after World War II. With the development of human rights norms under the United Nations, states had a duty to protect the rights of their citizens; thus, the right to nationality entitles a person to rights. In other words, citizenship represents the right to have rights. When children are born, they must be registered immediately after birth and acquire the nationality of a country so that they may be treated as people before the law and receive equal protection.

The failure of some Korean adoptees to obtain the citizenship of their receiving country raises a fundamental question ― what happens to the nationality of children when they are adopted to other countries?

Transnational adoption illustrates the phenomenon of middle-class parents from the Global North adopting babies from the Global South. It involves an immigration procedure solely for the adoptee. By severing the child's ties with the birth family, with the country of origin, and with the original nationality, the immigration procedures of the receiving country permit that child to enter for the purpose of becoming a citizen.

The significance of acquiring the receiving country's nationality is further reinforced in international legal frameworks on adoption and child protection. As the safety and welfare of a child remain most vulnerable to harm while crossing national borders, the receiving country bears the responsibility for protection of that child. The European Convention on the Adoption of Children, established in 1967, explicitly prescribes that "(if) the adopted child does not have (…) the same nationality as the adopter (…), the (country) of which the adopter(s) are nationals shall facilitate the acquisition of its nationality by the child."

Accordingly, transnational adoption procedures call for the child to obtain the citizenship of the receiving country. Failing to do so at the time of adoption leaves the child exposed to harm and instability. One of the worst consequences of this is deportation to the state of origin, as was Philip Clay's case.

Under the U.S. federal system, state courts deal with adoption decree matters while the federal government has authority over immigration and naturalization procedures. Due to these separated systems, acquisition of citizenship was not automatic upon the finalization of the adoption. It was possible for children entering the U.S. for adoption by U.S. citizens to have either one or both of these procedures uncompleted.

One may ask, "What happens to the child's South Korean nationality?" Children adopted from South Korea crossed the border with Korean nationality while bearing a Korean passport. Until the child acquired the nationality of the receiving country, that child maintained Korean nationality. International legal frameworks do not require that transnational adoption cancels the person's original nationality. Some countries permit dual nationality, and matters of citizenship vary across countries. However, in the adoption arrangements between the U.S. and Korea, priority should have been placed on ensuring that the child acquired the nationality of the receiving country as this is a basic safeguard for adoptees.

In addition to the separate systems handling naturalization and adoption matters in the U.S., South Korea's Nationality Act adds a further complication. It prohibits dual citizenship, except in special cases. The voluntary acquisition of another country's citizenship by a Korean citizen automatically cancels that person's Korean nationality. This legal measure has been applied since the beginning of Korea's transnational adoption program.

Korean law imposed a duty on adoption agencies to report to the Ministry of Justice the child's acquisition of the adoptive country's nationality. Once the ministry receives this notice, it publishes the name of the child in the official gazette to ensure the automatic cancellation of that child's nationality.

Despite having such procedures to verify whether a child has become a citizen of the adoptive country, there remains a lack of evidence that those involved ― the government, adoption agencies, and public organizations ― whether in South Korea or in the U.S., gave due attention to monitoring and confirming the naturalization of adopted children. As of 2018, it's been reported that the acquisition of American citizenship for over 18,000 people adopted by families in the U.S. cannot be verified.

This negligence testifies to six decades of illicit and unethical adoption practices between Korea and the U.S. Transnational adoption should not be considered an act of charity determined by private organizations. It has a lifelong impact on the human rights of adoptees, as well as their families. When such rights are violated at the earliest stages of people's lives, the impact reverberates throughout the rest of their lives.

Lee Kyung-eun is director of Human Rights Beyond Borders and author of the Korean-language book, "The Children-selling Country."