Tackling illegal adoptions and addressing the rights of victims

Side event, 34^th session of the Human Rights Council, 8 March 2017

On 8 March 2017, in the framework of the 34^th session of the UN Human Rights Council, the Special Rapporteur on the sale of children, child prostitution and child pornography organized a side event, with the support of the European Union and the Permanent Mission of Uruguay, on tackling illegal adoptions and addressing the rights of victims. The side event was organized in the context of the presentation of the thematic report of the Special Rapporteur (A/HRC/34/55) to the Human Rights Council.

In his welcoming remarks, H.E. Mr Ricardo González Arenas, Ambassador and Permanent Representative of Uruguay to the United Nations in Geneva, commended the report of the Special Rapporteur on illegal adoptions for bringing attention to the phenomenon and for providing specific recommendations to prevent and combat it. The Latin American region, like the rest of the world, has experienced the plight of illegal adoptions, in particular with commercialism and abuses in intercountry adoption processes. He stressed that progress has been made since the 1990s with the ratification of international instruments such as the Convention on the Rights of the Child and its optional protocols and the 1993 Hague Convention, to ensure that adoption processes comply with child rights principles such as the best interests of the child, the principle of subsidiarity, the prohibition of direct and independent adoptions, and the prohibition of improper financial gain. He underscored the need for ensuring coordinated responses from both receiving countries and countries of origin to prevent illegal adoptions, and to address the rights of victims of past and present large scale illegal adoptions in their search for truth, justice, reparation and guarantees of non-repetition.

H.E. Mr Peter Sørensen, Ambassador and Head of the European Union Delegation to the United Nations in Geneva, also welcomed the decision of the Special Rapporteur to address the issue of illegal adoptions, in particular the large scale systemic and systematic aspect of the phenomenon. In addition, he welcomed the work carried out by the Hague Conference on Private International Law, especially its expert group on the financial aspects of intercountry adoption, and the working group on preventing and addressing illicit practices in intercountry adoption. The European Commission supports the effective implementation of the safeguards set out in the 1993 Hague Convention - to which all EU Members States are party - by participating at the meetings of the Special Commission of the Hague Conference on Private International Law, which aim to improve the functioning of the Convention and serve to exchange best practices.

In her introductory remarks, the Special Rapporteur, Ms. Maud de Boer-Buquicchio, explained that her thematic report analysed the various forms and trends of illegal adoptions and proposed specific recommendations to tackle the phenomenon from a child rights perspective, with the ultimate goal of putting the best interests of the child at the centre of adoptions, prevent illegal adoptions, and address the rights of victims of illegal adoptions. The report contained two major contributions to the discussions and recommendations on the topic, namely an enhanced focus on the so-called "enabling environment" in which illegal adoptions flourish, and the answers that transitional justice measures can provide to the quest of victims for truth and origins, accountability, reparations and guarantees of non-repetition.

Speakers

The event included distinguished presentations by the following speakers:

• Dr. Kristen Cheney, Senior Lecturer of Children and Youth Studies, International Institute of Social Studies, The Hague
• Ms. Joëlle Schickel, Head of the Swiss Federal Central Authority for international adoptions
• Ms. Flor Gálvez, lawyer, International Commission against Impunity in Guatemala
• Dr. Patricia Lundy, Professor of Sociology, Ulster University

Summary

Dr. Cheney broadened an understanding of the enabling environment for illegal adoption through a discussion on the Orphan Industrial Complex (OIC), the global commodification of children labelled 'orphans'. She stressed that legal frameworks are fundamental, but that broader socio-cultural factors create enabling environments for these illegal practices to occur. The OIC, which encompasses the demand for experiences with orphans, including orphan tourism, orphanage establishment and volunteering, and international adoption, creates perverse incentives for child institutionalization that is often driven by the convergence of global charity and local poverty. Often unregulated, OIC activities thus undermine the development of more robust child protective systems. Therefore, Cheney stresses the need to address the enabling environments, to strengthen and invest more in effective national child protection systems, and to address the demand side of OIC.

Ms. Schickel addressed the issue of adoption from the perspective of the receiving countries. She highlighted the importance of the 1993 Hague Convention and its procedures in dealing with adoptions, but noted that a simple ratification was not sufficient without its correct implementation. Schickel outlined certain good practices required for intercountry adoption, including the need for proper regulation and monitoring of the intercountry process, the transparency of costs, and an active cooperation and co-responsibility between the receiving countries and countries of origin.

Ms. Gálvez presented the strengths and weaknesses of criminal investigations and prosecutions against criminal networks involved in the profitable business of sale and trafficking of children for the purpose of illegal adoptions in Guatemala. Gálvez focused on a case study concerning a girl victim of abduction and sale and trafficking for intercountry adoption. Gálvez traced the search process by the biological parents to find the girl victim, and the judicial proceedings that were initiated thanks to the support of an NGO to the biological family.  Despite numerous convictions by Guatemalan courts, including of lawyers, notaries and judges involved in the criminal network, as well as international orders requesting the repatriation of the girl, Galvez highlighted barriers that prevented the repatriation of the girl child to Guatemala, such as insufficient cooperation of the receiving country, and a lack of socioeconomic means of the biological family to have access to justice and remedies.

Dr. Lundy presented illegal adoptions from a transitional justice perspective, highlighting lessons that can be drawn from the four fundamental pillars of transitional justice, namely truth-seeking, justice, reparations and guarantees of non-repetition through legal, policy and institutional reform. Lundy gave an overview of historic child abuse in Ireland, arguing that there were unresolved issues that resulted from illegal adoptions not being addressed. Lundy stressed the power of truth commissions in acknowledging the harm suffered by victims, and discussed redress and reparations, concluding that victims are not consulted in the decision-making process, and that survivors often seek empowerment.

During the questions and answers section, attendants enquired about measures that should be adopted to prevent illegal intercountry adoptions, the links with international commercial surrogacy arrangements and violations of the rights of the child, and cases of illegal adoptions not covered by the current international normative and policy framework.

In her closing remarks, the Special Rapporteur underlined the importance of addressing the enabling environment of illegal adoptions by inter alia tackling the demand and strengthening national child protection systems. Lastly, she stressed the need to enhance international cooperation, in particular between countries of origin and receiving countries, to prevent abuses and violations and ensure the rights of victims of illegal adoptions to truth, justice, reparation and guarantees of non-recurrence.