Illegal adoptions

Adoptions resulting from crimes such as abduction and sale of and trafficking in children, fraud in the declaration of adoptability, falsification of official documents or coercion, and any illicit activity or practice such as lack of proper consent by biological parents, improper financial gain by intermediaries and related corruption, constitute illegal adoptions and must be prohibited, criminalized and sanctioned as such.

Illegal adoptions violate multiple child rights norms and principles, including the best interests of the child, the principle of subsidiarity and the prohibition of improper financial gain. These principles are breached when the purpose of an adoption is to find a child for adoptive parents rather than a family for the child.

Action of the Special Rapporteur

During the 34th session of the Human Rights Council in March 2017, the Special Rapporteur on the sale and sexual exploitation of children presented a thematic report on illegal adoptions.

The Special Rapporteur’s statement, a press release, a summary of the interactivedialogue with Member States, and a summary of the side event organized on this subject are available through the relevant links.

Key recommendations from the report propose that Member States:

• Adopt legislation that prohibits and criminalizes illegal adoption as a separate offence, as well as the sale of and trafficking in children that result in illegal adoptions, with sanctions that reflect the gravity of the crimes;
• Review national laws to ensure that they do not contribute to the creation or maintenance of an enabling environment for illegal adoptions;
• Strengthen and invest more in effective national child protection systems by increasing support to vulnerable families and providing alternative childcare measures in which adoptions respect the principle of subsidiarity and ensure the best interests of the child;
• Establish and implement a single process for adoption that includes a holistic assessment of the child's full range of rights, and prohibit private and independent adoptions;
• Adopt adequate regulation on procedures and safeguards in relation to domestic and intercountry adoptions, including in relation to the determination of adoptability, and establish effective mechanisms for overseeing adoption processes, especially with respect to verifying the background of any child who is declared an orphan;
• Establish mechanisms for addressing the concerns of adoptees, adoptive parents and biological parents about the circumstances of an adoption and for facilitating the search for origins and the request for reparations where appropriate;
• Ensure the right to truth, justice, reparation and guarantees of non-recurrence of victims of large-scale illegal adoptions by reforming institutions that were either involved in or incapable of preventing abuses, and guarantee the effective and meaningful participation of victims in the design and implementation of measures to obtain comprehensive redress;
• Take effective measures to protect children who are victims of armed conflict and natural disasters from becoming victims of illegal adoption.

In respect of intercountry adoptions:

• Central authorities should ensure the effective monitoring of activities of adoption accredited bodies to guarantee their transparency and accountability;
• Annual quotas for adoptions by countries and/or agencies should be eliminated and the "reversal in the flow of files" approach should be adopted by refusing to accept any application that has not been initiated in relation to a child identified as requiring adoption abroad;
• Governments should increase awareness of the need to bring the number of approvals of prospective adoptive parents into line with the projected number of adoptees, adopt stricter criteria for approval, and provide more complete information, including on mechanisms available to report and denounce illicit practices;
• In dealing with States not parties to the 1993 Hague Convention, receiving countries that are parties to the Convention should apply as far as practicable the standards and safeguards of the Convention;
• Official fees must be sufficient to cover costs and full details must be made available for public consultation;
• The provision of development or humanitarian aid must not be linked to an authorization to carry out adoptions;
• Contributions and donations should be separated from adoption;
• Payments by agencies or prospective adopters to residential care facilities must be prohibited.