A group of adult adoptees has planned a protest for adoptee rights to take place at the National Conference of State Legislature’s annual meeting in New Orleans, LA on Tuesday, July 22, 2008. The National Conference of State Legislatures is a bipartisan organization that serves state legislators and its staffs.
The purpose of the protest is for adoptees representing all fifty states to hold a rally to demonstrate their commitment to adoptee rights, including unconditional open records for adult adoptees, and to meet their state delegation.
Everyone who supports the open records movement, adoptees, first families, adoptive families, friends and supporters, are welcome to join the protest.
Complete information about the event is at The Adoptee Rights Demonstration website.
Usha
Monday, June 09, 2008
Workshop 2.3: Adoptee Access to Records, History and Searches: Adopted People and the “Right to Know”
Ethics and Accountability Conference
Sponsored by Ethica and Evan B. Donaldson Adoption Institute
October 15-16, 2007
Bullet points for discussion during Workshop 2.3:
- How do current laws and practices support or impede adopted persons’ access to information about themselves?
- What “rights” should adopted persons have to such information? How should their “rights” be balanced against those of other parties to an adoption?
- How should access to records and history, as well as search, be thought about from an international perspective?
Panelists:
Frederick F. Greenman, Jr. is the legal advisor and former Director to the American Adoption Congress. He is also the Treasurer and a director of the Evan B. Donaldson Adoption Institute. A prominent adoption activist, he was the senior counsel to amici curiae in the historic case, Doe v. Sundquist, which upheld the 1995 Tennessee Adoption Act. He also assisted counsel in the Oregon litigation, Does v. Oregon, that upheld the ballot initiative and statute in that state which granted adoptees access to their original birth certificates. Mr. Greenman has participated in various state and federal lobbying efforts, most recently concerning ratification and implementation of the Hague Convention on International Adoption. His interest in the subject stems from having surrendered a daughter for adoption at her birth and with whom he reunited 15 years ago. Mr. Greenman, a Harvard graduate, currently is a sole practitioner specializing in copyright related litigation in addition to issues relating to adoption reform.
Marley Greiner is the co-founder and executive chair of Bastard Nation: the Adoptee Rights Organization, the largest adoptee rights organization in North American. Ms. Greiner’s work has focused on the right of all adult adoptees to access their original birth certificates upon request without restriction. She was actively involved in Ballot Measure 58 in Oregon and legislation in Alabama and New Hampshire which restored the right of adult adoptees to access their original birth certificates. Ms. Greiner also is considered an expert on “safe haven” laws. Since 2001, she has published and edited Baby Dump News, a weekly e-chronicle of newborn abandonment and neonaticide. Ms. Greiner’s additional adoption interests include the relationship between adoption and Biblical America and the portrayal of adoption in film. She maintains the blog, The Daily Bastardette . Ms. Greiner holds a BA in English and Political Science from Malone College, and an MA in American History from the Ohio State University.
Pam Hasegawa, born Rolande Sygne Hampden, has been involved with adoption reform since joining ALMA (Adoptees’ Liberty MovementAssociation) in 1973, NJCARE (NJ Coalition for Adoption Reform and Education) in 1991 and the American Adoption Congress in 1996. Her commitment to rectifying the injustice imposed by the sealed records system on persons living adoption keeps her involved as a grass-roots lobbyist and adoption educator. The “letter to the editor” has become her favorite genre; presenting experiential workshops for adoption professionals and parents with Betsy Forrest and Penny Partridge is an ongoing delight; and working with younger members of the adoption constellation who commit their hearts, minds and energy to adoption reform is a constant source of joy for her. She has been sustained in the long journey toward truth, both personal and communal, by the grace of God, deep friendships forged out of a common understanding of the need for truth in adoption and her family’s abiding support for her work as a “professional volunteer” in the adoption arena.
Elizabeth Samuels is a professor of law at the University of Baltimore School of Law, where she teaches courses in the areas of constitutional law and family law. She is a graduate of Harvard College and the University of Chicago Law School. The subjects of her research and publications include the history of adult adoptees access to original birth records and the current state of laws governing mothers’ consents to the adoption of their newborn infants. Her public service activities includes consulting with adoption law reform advocates as well as other civil rights work.
Elizabeth Samuels
Elizabeth Samuels covered the history of adult adoptees’ access to their own records. Her theory is that it helps us to understand where we are if we understand how we got here. She became interested in this subject because her sister relinquished a child and they met when her birth niece became an adult. She wondered why it was thought beneficial to make records closed. To her amazement, it hadn’t been thought beneficial for adult adoptees and there were different reasons that had led to the closing of records.
Statutory adoption is relatively recent historically. The first state adoption statute was in the mid-1800s. It wasn’t until the 1920s that essentially all states developed a statutory process for adoption. Initially, all records were open. In the early 1900s there was a movement among the states to protect the privacy of the participants i.e., confidentiality (closing records to the public). In the 1930s and 1940s states began moving toward the amended birth certificate where the child was documented as having been “born to” the adoptive parents. It was also during this time that states began sealing records not just from pubic inspection but from inspection by the parties: adoptive parents and birth parents. The primary reason was to protect adoptive families from interference or harassment from birth families. Surrender papers during this time contained promises not to seek out the child or harass the adoptive family. Adoptive parents, on the other hand, were often given documents with identifying information.
In 1953, the National Conference of Commissioners on Uniform State Laws developed the first uniform adoption act recommended to states. They clearly recommended that court and birth certificate records be closed to the public and parties but that they should be accessible to adult adoptees and they were in most states at that time. And as late as 1960 in more than half the states, adults adopted as children still had access to records with identifying information. After 1960, 4 states closed records to adoptees, 6 in 1970s and 7 did not close until after 1979. Even in closed states, records could be opened by court order without notice to or participation by birth parents.
Obviously there was a huge change in attitudes from the 1950s to 1970s. Why? There were a complex confluence of factors that led to this result with no easy answers:
- Closing of records to public and parents helped create and endorse the idea that secrecy was a normal part of the process
- Post- WWII emphasis on women fulfilling traditional roles: staying home and having lots of children
- Psychoanalytic idea at least for young white unmarried women that they were suffering from a mental and moral disorder that led to their pregnancy that could be cured if they placed the child with a “normal” family
- Emerging idea that adult adopted persons who were interested in finding out about their origins were also suffering from a mental disorder.
Nowadays, substantial numbers of adult adoptees find out information outside of the government though many spend years and resources doing so. Looking at this history, it’s a relatively short period that adoptees have not had access. It was really an experiment that has proven more harmful than beneficial.
Marley Greiner
There are a number of reasons why original birth certificates of adoptees remained sealed in all but a handful of states:
- Well-funded industry lobbies such as the National Council for Adoption
- Powerful marginal lobbies such as the National Right to Life Committee, Family Research Council, ACLU, Planned Parenthood and various feminists who believe adult adoptee identity rights endanger their own social and political agendas
- Politically influential adoptive and birth parents
- Reactionary and back scratching politicians
- Political lethargy
Right to identity and public records have no traction in the political landscape unless they intersect with high priority issues such as abortion or privacy rights and then they intersect only negatively. Adoptees are expected to shut up and be grateful for allegedly being made middle class and not tossed in a dumpster or reared in a trailer park. Those who press for records access are blamed for “disappearing adoption privacy rights”. “Adoptees are destroying adoption.”
Adoption reformers continue to defeat themselves by compliantly accepting less than what they want: baby steps that lock out people. They feel that compromise is progress, something is better than nothing. But there is no precedent for these bad laws to be changed later. Compromisers tend to legitimate and frame their arguments in the ideology and language of the opposition. They accept the faulty social construct of the triad and its false doctrine of competing rights, balanced rights and special rights. Without the core ethic of an absolute right to birth certificates and identity for all adoptees, reformers support institutional protectionism. Their compromise is obstruct rights and information for all and the opportunity for reunion for those who seek it.
Leave no one behind. 10 years ago Bastard Nation was founded on the guiding principle that access to original birth certificates, identity and history is a natural right, not a privilege doled out by the state. Reasons for wanting birth certificates are immaterial because they are based on desire not the right to possess them and the unredacted information in them. We have the right to the facts of our births, origins and adoptions. Adoptions were imposed and contracted upon us without our knowledge and consent by the state, then that same state seals our information and refuses to acknowledge our right to that information or even that we existed prior to our adoptions. The non-adopted need not justify why they want their vital records nor are they forced to ask for their parents’ permission, grovel before a judge, join a government registry, seek mental health counseling or spend years getting a bill passed to get them. They have a presumed right to their own birth certificates and can do with them what they please. All arguments for access then must flow from the presumed right of all adoptees to unrestricted access and possession of their true birth certificates, not just the majority class. Otherwise the right of anyone to possess their own birth certificates is not a right but a favor the state grants to some.
The real issue therefore moves from personal desire to political rights and adoptees’ relation to the state. Who owns your identity, you or the state? In Oregon, two years after Bastard Nation (BN) was founded, it had its first victory with the passage of Ballot Measure 58, in which the people decided that Oregon adoptees had a right to their own birth certificates. When BN initiated the campaign, adoption reformers wrung their hands and said “you’ll throw us back 20 years!” They forgot to mention in their 20 years of activisim they had failed to open one single state to full access and in fact had mucked things up so badly with compromise legislation such as contractual birth parent disclosure vetos and tiered access that it will be virtually impossible to gain unrestricted access in those states without major league wrangling, if ever.
BN's victory in Oregon was followed by legislative restoration in Alabama in 2000 which was BN's bill and New Hampshire in 2005 where BN worked with others to pass unrestricted access. Earlier this year folks in Maine unconnected to Bastard Nation who previously considered compromise got a clean bill passed which will open records for all in 2009. Exact figures are unavailable, but since at least 1999, at least 14,000 adoptees have received their birth certificates under the Just Say No to Compromise Policy. Holding the line works. Conversely, compromise legislation slugs endlessly through the pipeline amended out of recognition in a vague attempt to please an unpleasable opposition that insists the status quo continue ad infinitum.
False triad concept. Adoptee rights advocates are bogged down with the concept of the adoption triad: the first parents, the adoptive parents and Baybee Bumble, the adoptee, all of whom allegedly have competing rights that must be balanced. Translation: adoptees lose. The triad characterizes the entire adoption structure as a nuclear unit; in reality, it hides information as well as people: for example, grandparents, cousins, siblings, fosterers, and institutions central to the adoption experience -- agencies, social workers, facilitators, marketers, politicians and the marketplace. There are a myriad of complicated relational permutations concealed by “the triad.” Once the other actors are introduced, we see hidden power relationships based on chronology of events, economics, class gender, race, market demand and other factors. The triad concept moved from a sociological to a political discourse where it became manipulated by those living below the water line: private business, adoption professionals and their government security force: the state which ultimately defines what adoption is and can force its will on the rest of us. For example, first mothers were morphed from threat to the adoptive family to courageous women who need protection from their adult offspring. In response, the state and the adoptocrasy colluded to develop an aggressive claim of bureaucratic promises to first mothers asserting that their anonymity is protected by sealed records, thus creating a new privacy right which has nothing to do with privacy. When documented evidence of these promises or even the desire for them was not forthcoming, the adoptocrasy countered that although there was nothing in writing, promises are implied.
These and other claims to make records sealed are ludicrous. Surrender does not equal adoption. Privacy and confidentiality do not equal anonymity nor do sealed birth records. Under normal circumstances, competitive rights and their balancing is a problem only when there are a conflict of rights. Since there is no right to anonymity to one’s own offspring and there is a presumed to one’s own birth certificate, there is nothing to balance except in the minds of the secret keepers. What adoptocrats really want when they toss around competing rights, implied promises and confidentiality is protection from their commercial misdeeds and their continued control over other people’s personal information. This is all about institutional power. The false doctrine of competitive balance, special rights discourse foisted by the below the water line players on the above the water line people most affected by adoption is a false flag operation. Ron Morgan in his essay “Adoption is a Five-Legged Stool” writes: “The beauty of the Triad, at least to the fourth and fifth leg, is that it renders their agency invisible. The state and its quasi-agents, the professional adoption class, can float divinely over the pell mell and gore, offering definitive commentary and altering the rules of the game. It's a tidy racket."
This tidy racket played out in Massachusetts recently when a reform organization packed with a professional adoption class rejected a clean bill and accepted a replacement pushed by politicians and a handful of adoptees that restored the right of access to some, keeps all future records open, but continues to seal the records of other adoptees between certain dates in order to protect the privacy rights of first parents who surrendered children between those dates. By doing so, reformers legitimated implied promises of confidentiality debunked years ago; a lie they insist we must respect. The message is clear: adoptees have no genuine right to their birth certificates or their personal information even their advocates agree.
The triad with its plea for balanced rights forces compromise and corrupts the core principle of adoptee rights to records, identity and autonomy. Without an ethical cannon of absolute inclusion and no compromise, the rights of adoptees will continue to be balkanized and adoptees will continue to be treated as a separate class undeserving of their own records.
Records access is a social justice issue and I think it needs to be framed that way.
Audience Discussion
What are the impacts of current laws that impede access?:
- Lack of medical history
- Not being able to have a copy of one’s own original birth certificate impedes knowing ethnic and religious heritage
- Files are different. Agency has one file, the government has its own files. The files are different or incomplete. Information is selectively edited.
- Inability to verify one’s own birth day, county in which one was born, lack of historical truth.
- In a private adoption, there is a record the lawyer has which is more likely to be thrown out earlier than a record in an agency.
- A lot of adoptees have problems getting passports. Person whose birth certificate is filed more than one year after birth can’t use that birth certificate as appropriate evidence.
- Closed records create a market for information because information is restricted.
- Information can be sold to those who can afford it or have connections to get it. That unequal access is unjust.
- Adoptees say it makes them feel like second class citizens, perpetual children.
- Totally discriminatory including within the adoption community, for example, foster children generally have access and some international adoptees arrive with their original birth certificates.
- Impedes access for future generations.
- Impedes guarantee of ethical practices.
- Those in open adoption say they have their children’s birth records, but if something happens to them, can’t get them back.
- Siblings do not know they are siblings. Possibility of incest being permitted.
- In international context, if government doesn’t keep records and agency destroys records, then there are no records. In Hague regulations, all open access provisions are governed by state laws in the US. So if adoptee comes from abroad into a state with closed records, then that record gets closed even if the Convention gives access.
What are ways to make changes?
- adopteerights.net is having a nationwide demonstration in New Orleans on July 22, 2008 to coincide with the National Conference of State Legislators.
- The American Adoption Congress has a legislative packet that is helpful.
- When any kind of law comes up about adoption, one can testify as a citizen. At least write a letter. In off years try to form relationships with representatives.
- From Ethica’s standpoint, people who oppose opening records have a sophisticated way of notifying all their supporters when a bill is coming up and they flood legislators with calls. There is potential to tap into the adoptive parent and other supporter communities who believe this is not right. We can work together to come up with a similar system to flood legislators with calls.
Fred Greenman
Several things have developed to deal with mothers who don’t want their identity known. Oregon and three other states have contact preference forms. In a closed adoption, a birth mother has no assurance or warning she will not be found. The only case of harassment he is aware of occurred in New York which has the most tightly sealed records. If her child wants contact and records are opened, all statutes set a minimum age of at least 18 – her feelings may change over time which is what typically happens. In states with contact preference forms, the experience has been no reported problems.
Current state of law regarding adoption access statutes. Originally had 48 closed records states (all but Kansas and Alaska). 6 have granted access. 4 of them subject to a contact preference form. Delaware has a disclosure veto -- 19 filed in entire state since 1999. In 1996, Tennessee because the first state to retroactively open records. Birth certificates had false or meaningless info because of Georgia Tann, so the Tennessee statute gave access to entire adoption file. In another 12 states, access to original birth certificates or identifying information depends on the year of birth based on the argument that birth mothers were promised confidentiality. A number of states have a confidential intermediary system.
The whole process of secrecy starts mechanically with the original birth certificate and sealing and alteration of it into an amended birth certificate which shows the adoptive parents as simply the parents. This practice was started in 1928 by Georgia Tann who was perhaps the most notorious baby thief. She sold at least 5,000 children and at one time was the most prominent adoption practitioner in the country. She is the origin of this problem.
All these varying systems are for better or for worse constitutional in the US.
Ontario passed a statute which granted retroactive access to identifying information to adoptees and birth parents. There was a decision holding that statute unconstitutional. Not clear if ruling will be appealed. The ruling is weak because in Ontario, adoptive parents have always had access to original birth certificates and one plaintiff is a birth father. Paternity suits are not defended on grounds of privacy.
Usha
Tuesday, May 20, 2008
Risks of Umbrellaing
A recent court decision illustrates how an agency in an umbrella relationship with other agencies is able to successfully contractually wash its hands of liability for the actions and inactions of its subcontractors in the U.S. and abroad.
The Case
Jon and Trisha Smith filed suit in the United States District Court for the Northern District of Ohio against the adoption agency Island Coast International Adoption (ICIA) after they were unsuccessful in adopting twins from India. The Smiths waited several years for the adoption process to be completed and paid more than $20,000 to the agency. The Smiths filed suit seeking damages for breach of contract, fraud and intentional infliction of emotional distress.
In early 2004, the Smiths learned about the twins available for adoption in India and contacted ICIA. ICIA coordinated with International Families, Inc. (IFI), described in the court decision as ICIA’s “affiliated agency,” which was licensed to perform adoptions in India. The Smiths signed their contract with ICIA and paid three installments to ICIA totaling $3,750 plus a “country fee” of $20,500 which was forwarded to IFI. The “country fee” was used to cover the services performed by IFI as well as government and attorney costs in India.
The twins resided in an orphanage called Peace Home. Peace was licensed by CARA but its license expired in June 2004. IFI’s license with CARA had also expired and was not immediately renewed. In March 2005, Peace’s license was renewed, but its renewal was backdated to June 2004 because the license was valid for only one year. The license expired in June 2005. IFI was unable to process the adoption of the twins by June 2005.
Through 2004 and 2005, ICIA provided the Smiths with updates on the license renewal process, offered to allow them to switch countries and offered them a partial refund of the $3,750 that was paid to ICIA. The Smiths declined. The Smiths raised three claims against ICIA.
1. Breach of Contract Claim
The Smiths alleged that ICIA breached their contract because ICIA failed to properly coordinate the adoption process, and failed to accurately communicate with the Smiths and adoption officials in India. The Court disagreed and noted how the contract language did not support the Smith’s position. The contract included a description that ICIA’s fees may have covered coordination with foreign officials and with its foreign facilitator. According to the Court, “the plain language of this section clearly placed Plaintiffs on notice that Defendant would be working with others in India to complete the adoption. This only makes sense.” Further, the contract identified the specific services ICIA was required to perform which included, “locating the child, referring the child to the clients, and initiating the contact with the foreign orphanage and the affiliated agency.” Again, the Court found the contract clearly contemplated that Defendant would be working with other agencies in India and so ICIA’s coordination with them was both expected and appropriate.
The Smiths also argued that ICIA did not act in good faith when coordinating and communicating with IFI because ICIA did not have first-hand knowledge of the specific tasks undertaken by IFI and because IFI, not ICIA, was charged with coordinating the adoption process with Indian officials. In short, the Court stated, “Plaintiffs seek to blame Defendant for the failings of IFI, but Defendant had no contractual duty to deal directly with Indian officials. Nor do Plaintiffs allege, let alone show, that Defendant is responsible for any failure of IFI. There was no contract prohibition to subcontract services to Indian agencies or that Plaintiffs pre-approve working with those agencies. Indeed, contract language summarized above contemplated quite the opposite.” The Court ruled that there was no showing of lack of good faith. Rather, “[t]o the contrary, the evidence shows Defendant performed the services required by the contract and continuously acted in good faith, providing Plaintiffs with numerous updates on the status of the adoption.”
2. Fraud Claim
The Smiths alleged that ICIA made repeated misrepresentations about the status of the adoption process and its relationship with IFI. The Court found that ICIA sent several emails and made numerous phone calls to the Smiths (which satisfied two elements needed to establish a fraud claim), but the Smiths failed to show that ICIA’s statements were knowingly false or made with a reckless disregard for the truth or with the intent to mislead. Although ICIA passed along false statements to the Smiths, the Court pointed out that the Smiths had to prove not just falsity, but also actual knowledge or reckless behavior. According to the Court, ICIA “justifiably relied on statements made by IFI because of past dealings and successful adoptions. Defendant reasonably believed them to be true, even if they are eventually proven to be false.”
3. Intentional Infliction of Emotional Distress Claim
In order to recover for intentional infliction of emotional distress, a plaintiff in Ohio must establish several elements including “extreme” and “outrageous” conduct. The only “extreme and outrageous” conduct identified by the Smiths was that ICIA sent them pictures of the twins after the Smiths demanded that ICIA cease all contact with them. Although ICIA’s conduct may have “added, indeed aggravated, Plaintiffs’ disappointment,” the Court found that its actions fell significantly short of going “beyond all bounds of decency” or being “utterly intolerable.”
4. The Court’s Ruling
The Court granted ICIA’s motion for summary judgment on all three legal theories stating, “The Court recognizes there is much heartache that can accompany an unsuccessful adoption. Plaintiffs’ desire to be parents and raise children is clearly strong and commendable. However, there simply is no contract breach, fraud or intentional misconduct by Defendant who likewise wanted very much to bring these children in Plaintiffs’ lives.”
Important Facts Not Included in the Opinion
There is important background information that is not included in the Court’s opinion:
1. Peace Home’s licensing history
Peace’s license did not simply expire. According to a report by Sujata Mody from the Malarchi Women’s Resource Center in Chennai, “From Adoption Agencies and Institutional Practices in Tamil Nadu,” Peace was hurriedly issued a license by CARA at the behest of the Secretary of Social Welfare in 2003. The usual requirement is that an adoption agency must be registered for at least three years before it can be licensed to perform international adoptions.
Peace was inspected on October 10, 2002 and had five babies, one of which was a 13-day old infant for which there were no records. Authorities from the Department of Social Welfare observed that Peace had made insufficient efforts to identify Indian parents and had made insufficient efforts to match children with waitlisted parents. Despite this information, CARA licensed Peace on June 19, 2003.
Mody’s report also questioned the sourcing of children to Peace. She found that the number of relinquished babies at Peace were from almost every district and region in the state of Tamil Nadu. That fact is odd given that government-run cradles where infants can be abandoned anonymously are located in every district of Tamil Nadu. Despite the wide availability of these drop off locations, Mody questioned why parents arrived from geographically distant places to relinquish their babies to Peace.
There are several branches of Peace located in Tamil Nadu. In 2004, a branch was inaugurated in Kalapatti. Raman Rao was cited in a news article as the director of Peace Home and he indicated that the branch would shelter children between one week and seven years old in addition to destitute women. At the time of the article, 70 children were at the home, most of who came to the orphanage through the cradle baby scheme. In addition, it was claimed that many mothers left the children at the doorsteps at the home and fled. According to Mary Robert at the Coimbatore based Peace society, 75% of the 140 babies they had given for adoption were from the cradle baby scheme. The Kalapatti branch of Peace is still receiving abandoned infants.
According to a fact finding report issued by the Campaign Against Child Trafficking in 2005 entitled, "Fact-finding Investigation into the Functioning of Licenced and Recognised / Registered Adoption Placement Agencies and Regulatory Bodies in Tamil Nadu" a CARA inspection report, “Report of the Joint Inspection of Peace (Poor Economy and Children’s Educational Society) Home, Coimbatore, Tamil Nadu”, dated July 2, 2004, Peace had indulged in “unethical practices” and its “registration was not proper.” The report pointed out that most children from the agency were being sent to IFI in Washington DC whose executive director is Mrudula Rao, mother of the treasurer of Peace. E. Raman Rao, the treasurer’s father, donated most of the funds to the agency which is one such “unethical practice” cited in CARA’s report because most of the children were being sent to IFI. According to a Frontline investigative report of adoption agencies in Tamil Nadu, the 2004 CARA report included the following allegations against Peace:
The Case
Jon and Trisha Smith filed suit in the United States District Court for the Northern District of Ohio against the adoption agency Island Coast International Adoption (ICIA) after they were unsuccessful in adopting twins from India. The Smiths waited several years for the adoption process to be completed and paid more than $20,000 to the agency. The Smiths filed suit seeking damages for breach of contract, fraud and intentional infliction of emotional distress.
In early 2004, the Smiths learned about the twins available for adoption in India and contacted ICIA. ICIA coordinated with International Families, Inc. (IFI), described in the court decision as ICIA’s “affiliated agency,” which was licensed to perform adoptions in India. The Smiths signed their contract with ICIA and paid three installments to ICIA totaling $3,750 plus a “country fee” of $20,500 which was forwarded to IFI. The “country fee” was used to cover the services performed by IFI as well as government and attorney costs in India.
The twins resided in an orphanage called Peace Home. Peace was licensed by CARA but its license expired in June 2004. IFI’s license with CARA had also expired and was not immediately renewed. In March 2005, Peace’s license was renewed, but its renewal was backdated to June 2004 because the license was valid for only one year. The license expired in June 2005. IFI was unable to process the adoption of the twins by June 2005.
Through 2004 and 2005, ICIA provided the Smiths with updates on the license renewal process, offered to allow them to switch countries and offered them a partial refund of the $3,750 that was paid to ICIA. The Smiths declined. The Smiths raised three claims against ICIA.
1. Breach of Contract Claim
The Smiths alleged that ICIA breached their contract because ICIA failed to properly coordinate the adoption process, and failed to accurately communicate with the Smiths and adoption officials in India. The Court disagreed and noted how the contract language did not support the Smith’s position. The contract included a description that ICIA’s fees may have covered coordination with foreign officials and with its foreign facilitator. According to the Court, “the plain language of this section clearly placed Plaintiffs on notice that Defendant would be working with others in India to complete the adoption. This only makes sense.” Further, the contract identified the specific services ICIA was required to perform which included, “locating the child, referring the child to the clients, and initiating the contact with the foreign orphanage and the affiliated agency.” Again, the Court found the contract clearly contemplated that Defendant would be working with other agencies in India and so ICIA’s coordination with them was both expected and appropriate.
The Smiths also argued that ICIA did not act in good faith when coordinating and communicating with IFI because ICIA did not have first-hand knowledge of the specific tasks undertaken by IFI and because IFI, not ICIA, was charged with coordinating the adoption process with Indian officials. In short, the Court stated, “Plaintiffs seek to blame Defendant for the failings of IFI, but Defendant had no contractual duty to deal directly with Indian officials. Nor do Plaintiffs allege, let alone show, that Defendant is responsible for any failure of IFI. There was no contract prohibition to subcontract services to Indian agencies or that Plaintiffs pre-approve working with those agencies. Indeed, contract language summarized above contemplated quite the opposite.” The Court ruled that there was no showing of lack of good faith. Rather, “[t]o the contrary, the evidence shows Defendant performed the services required by the contract and continuously acted in good faith, providing Plaintiffs with numerous updates on the status of the adoption.”
2. Fraud Claim
The Smiths alleged that ICIA made repeated misrepresentations about the status of the adoption process and its relationship with IFI. The Court found that ICIA sent several emails and made numerous phone calls to the Smiths (which satisfied two elements needed to establish a fraud claim), but the Smiths failed to show that ICIA’s statements were knowingly false or made with a reckless disregard for the truth or with the intent to mislead. Although ICIA passed along false statements to the Smiths, the Court pointed out that the Smiths had to prove not just falsity, but also actual knowledge or reckless behavior. According to the Court, ICIA “justifiably relied on statements made by IFI because of past dealings and successful adoptions. Defendant reasonably believed them to be true, even if they are eventually proven to be false.”
3. Intentional Infliction of Emotional Distress Claim
In order to recover for intentional infliction of emotional distress, a plaintiff in Ohio must establish several elements including “extreme” and “outrageous” conduct. The only “extreme and outrageous” conduct identified by the Smiths was that ICIA sent them pictures of the twins after the Smiths demanded that ICIA cease all contact with them. Although ICIA’s conduct may have “added, indeed aggravated, Plaintiffs’ disappointment,” the Court found that its actions fell significantly short of going “beyond all bounds of decency” or being “utterly intolerable.”
4. The Court’s Ruling
The Court granted ICIA’s motion for summary judgment on all three legal theories stating, “The Court recognizes there is much heartache that can accompany an unsuccessful adoption. Plaintiffs’ desire to be parents and raise children is clearly strong and commendable. However, there simply is no contract breach, fraud or intentional misconduct by Defendant who likewise wanted very much to bring these children in Plaintiffs’ lives.”
Important Facts Not Included in the Opinion
There is important background information that is not included in the Court’s opinion:
1. Peace Home’s licensing history
Peace’s license did not simply expire. According to a report by Sujata Mody from the Malarchi Women’s Resource Center in Chennai, “From Adoption Agencies and Institutional Practices in Tamil Nadu,” Peace was hurriedly issued a license by CARA at the behest of the Secretary of Social Welfare in 2003. The usual requirement is that an adoption agency must be registered for at least three years before it can be licensed to perform international adoptions.
Peace was inspected on October 10, 2002 and had five babies, one of which was a 13-day old infant for which there were no records. Authorities from the Department of Social Welfare observed that Peace had made insufficient efforts to identify Indian parents and had made insufficient efforts to match children with waitlisted parents. Despite this information, CARA licensed Peace on June 19, 2003.
Mody’s report also questioned the sourcing of children to Peace. She found that the number of relinquished babies at Peace were from almost every district and region in the state of Tamil Nadu. That fact is odd given that government-run cradles where infants can be abandoned anonymously are located in every district of Tamil Nadu. Despite the wide availability of these drop off locations, Mody questioned why parents arrived from geographically distant places to relinquish their babies to Peace.
There are several branches of Peace located in Tamil Nadu. In 2004, a branch was inaugurated in Kalapatti. Raman Rao was cited in a news article as the director of Peace Home and he indicated that the branch would shelter children between one week and seven years old in addition to destitute women. At the time of the article, 70 children were at the home, most of who came to the orphanage through the cradle baby scheme. In addition, it was claimed that many mothers left the children at the doorsteps at the home and fled. According to Mary Robert at the Coimbatore based Peace society, 75% of the 140 babies they had given for adoption were from the cradle baby scheme. The Kalapatti branch of Peace is still receiving abandoned infants.
According to a fact finding report issued by the Campaign Against Child Trafficking in 2005 entitled, "Fact-finding Investigation into the Functioning of Licenced and Recognised / Registered Adoption Placement Agencies and Regulatory Bodies in Tamil Nadu" a CARA inspection report, “Report of the Joint Inspection of Peace (Poor Economy and Children’s Educational Society) Home, Coimbatore, Tamil Nadu”, dated July 2, 2004, Peace had indulged in “unethical practices” and its “registration was not proper.” The report pointed out that most children from the agency were being sent to IFI in Washington DC whose executive director is Mrudula Rao, mother of the treasurer of Peace. E. Raman Rao, the treasurer’s father, donated most of the funds to the agency which is one such “unethical practice” cited in CARA’s report because most of the children were being sent to IFI. According to a Frontline investigative report of adoption agencies in Tamil Nadu, the 2004 CARA report included the following allegations against Peace:
- “The agency has tampered relinquishment deeds (surrendered directly to the Home), created false siblings, followed various unethical practices, i.e., giving wrong information about [some children in the agency at the time of the inspection].”
- “While siblings A[] and A[] were admitted at different times, the relinquishment deeds indicate that they were surrendered together.”
- “According to the relinquishment deed, Maheshwari and her sibling were surrendered by their widowed mother. But the inspection team found that Maheshwari’s father was alive; she was left there for better education; and the sibling she was paired with was actually not her brother.”
- “Several registers/records are not properly maintained.”
- “The registration of the Society is not proper.”
- “While more than 40 Indian parents have registered for children, the agency has not shown interest to complete home studies of the families.”
Despite CARA’s inspection report and an order to show cause issued to Peace that received no reply, CARA renewed Peace’s license in April 2005. Peace currently no longer has a license to perform inter-country adoptions.
2. Allegations about IFI
A visit to India-adoption related forums such as ichild and blogs will quickly confirm the long history of complaints about IFI similar to those raised by the Smiths. One mother writes on her blog in 2005:
Our agency isn’t at fault, really. Not directly, at least. They’re just too
passive. They’ve just accepted what the liason said and never questioned any of
it. This liason has a bad rap in the India adoption world – we knew this only
after we were knee-deep in the program and already in love with our little girl.
He is known for over-promising waiting families and not delivering – often
without refunding money invested by the waiting families. But we were assured
that he had never done anything negative in the years that he worked with our
agency and had, in fact, completed around 100 successful adoptions from India
with our agency. So we didn’t worry too much back then. Over the years, though,
our doubts grew. And now our doubts were confimed.
Despite its reputation and history of complaints, IFI received temporary Hague accreditation for a period of two years.
3. ICIA is not licensed by CARA. According to existing CARA guidelines, “a foreign social/child welfare agency desirous of sponsoring applications of foreign adoptive parents for adopting an Indian child shall make an application to CARA through the Office of Indian Diplomatic Mission in that country and only such foreign agencies enlisted for this purpose by CARA shall undertake this activity.”
Questions
1. Does CARA permit umbrella relationships such as that between ICIA and IFI?
2. Does ICIA or IFI have any accountability for charging a $20,500 “country fee” which is well above CARA’s guideline current maximum of $3,500?
3. Given the irregularities cited by CARA inspectors and reports by NGOs and investigative journalists about unethical practices at PEACE, what ethical responsibility did ICIA have to become aware of PEACE’s operations instead of relying solely on IFI’s statements along the way?
4. Did the unethical practices cited by CARA about PEACE, PEACE’s relationship with IFI, IFI’s long history of complaints from other families factor into its review for Hague accreditation?
Usha
Smith v. Island Coast International Adoption, Slip Copy, 2008 WL 839793 (N.D. Ohio March 27, 2008)
U.S. Department of States list of Accredited, Temporarily Accredited, and Approved Hague Adoption Service Providers as of April 15, 2008
CARA Guidelines, Rule 6.1 and List of Recognized Indian Placement Agencies in Tamil Nadu, as of April 20, 2008
“Baby girl abandoned in theatre,” The Hindu, November 28, 2007
"Adoption Agencies and Institutional Practices in Tamil Nadu: A Sociological Study”, Sujata Mody, Malarchi Women’s Resource Centre, Chennai, 2005
"Fact-finding Investigation into the Functioning of Licenced and Recognised / Registered Adoption Placement Agencies and Regulatory Bodies in Tamil Nadu", Campaign Against Child Trafficking, August 19, 2005
“The Adoption Market” by Asha Krishnakumar, Frontline, Vol. 22, Issue 11, May 21-June 3, 2005
“Behind the façade” by Asha Krishnakumar, Frontline, Vol. 22, Issue 11, May 21-June 3, 2005
AfrIndie Mum, blog post dated May 26, 2005
“Orphanage inaugurated,” The Hindu, April 6, 2004
Friday, April 25, 2008
US Embassy in Vietnam: Summary of Irregularities in Adoptions in Vietnam
The public document which follows was posted by the United States Embassy in Hanoi, Vietnam's Adopted Children Immigrant Visa Unit on their official website on Friday, April 25, 2008:
Summary of Irregularities in Adoptions in Vietnam, Adopted Children Immigrant Visa Unit, Embassy of the United States in Hanoi, Vietnam, 25 April, 2008Summary of Irregularities in Adoptions in Vietnam
On October 25, 2007 in response to “growing concerns about irregularities in the methods used to identify children for adoption in Vietnam and the resulting difficulties in classifying those children as orphans,” USCIS required that I-600 petitions be filed in Ho Chi Minh City, with the processing of these petitions to be completed before prospective adoptive parents travel to Vietnam. These procedures enable USCIS to determine whether a child qualifies as an orphan, as defined by the Immigration and Nationality Act. In the six months since this program was instituted, US officials in Vietnam have investigated over 300 I-600 petitions. This report presents a summary of our findings.
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Country Fraud Profile
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Vietnam is considered to be a high risk country for immigration fraud according to the Department of State. Fraudulent documents are routinely submitted by Vietnamese applicants in both non-immigrant and immigrant visa applications. These include both documents that have been fabricated outright and official documents issued improperly or based on incorrect information. Birth certificates, household registry documents, and marriage certificates can easily be purchased from corrupt local government officials or brokers. Marriage fraud, in order to obtain immigration benefits, is common and has resulted in multiple arrests in the United States.
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Adoption Legislation and Administrative Structure
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Intercountry adoption in Vietnam is regulated by two decrees: Decree 68/2002 and Decree 69/2006. These decrees divide responsibility for adoption between the Department of International Adoption (DIA) in the Ministry of Justice, and the Ministry of Labor, Invalids and Social Affairs (MOLISA) at the national level. Most of the actual administration of adoptions, however, is handled at the provincial or district level, with minimal oversight from DIA or MOLISA. For example, the matching of children and adoptive parents is the responsibility of the district-level Department of Labor, Invalids and Social Affairs. In many cases this authority is delegated to the orphanage director. If DIA feels that a child is not eligible for intercountry adoption, they can request the office that made the match review the file, but they cannot block the match or prevent the completion of a full and final adoption.
The definition of an adoptable orphan is provided in Decree 68/2002 Article 44, which states that a child cannot be released for adoption without "the written voluntary agreement of the father and/or mother of that child." The decree lists only three exceptions to this rule. The first is if both parents are deceased; the second is if the child "has been abandoned or left at a medical establishment;" and the third is if "the child's parents have lost their civil act capacity" [sic]. Decree 69/2006 clarifies that the orphanage or People's Committee must prove that a child is covered by one of these exceptions. Otherwise, a child is still considered to be under his parents' custody, whose consent is required prior to any adoption being authorized. Decree 68/2002 and Decree 69/2006 also establish that in the case of a child who has been abandoned or left at a medical facility, a 30 day search must be made for the birth parents, and in all cases a separate 30 day search must be made for domestic adoptive parents. These searches are conducted by the orphanage or local People's Committee.
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Financial links between ASPs and Orphanages
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Vietnamese law requires that an Adoption Service Provider (ASP) sign a donation agreement with an orphanage before the ASP can arrange adoptions from the orphanage. These agreements are generally not released to the public. Several orphanage directors have told the Embassy that they actively bargain with multiple ASPs, and choose to work with the ASP that offers the highest donation per child referred. While these donations can be a mechanism to assist in the care of the children at the orphanage, they can also have a distorting effect on the adoption system.
Orphanage directors in four provinces have reported to the Embassy that there is a strong financial incentive to maximize the number of children available for foreign adoption in their centers. The donation provided per child (available for intercountry adoption) can be up to 10 times the standard government funding. Hospital and social workers have reported that orphanage directors offer them financial incentives for each child sent to their orphanage.
As a result of the autonomy given to orphanage directors by MOLISA, individual orphanage directors, in conjunction with representatives of their sponsoring ASP, have broad latitude in determining how donations will be made, what the amount will be, and whether applications from prospective domestic adoptive parents will be processed. For example, one orphanage, which is entirely funded by an American ASP, submits expense reports and receipts to the ASP on a monthly basis. The ASP then transfers funds to reimburse the orphanage for its expenses. The number of infants in this orphanage has remained steady for the past three years. The orphanage is clean, well stocked with medicine and has an RN on duty. This orphanage prioritizes reuniting children with their biological parents, and processes equal numbers of domestic and intercountry adoptions. By contrast, another orphanage receives a fixed monthly donation for each child in the orphanage who is available for international adoption and the payment is made in cash directly to the orphanage director. This orphanage has seen the number of infants in its care increase by over 2000% in the past year, but it has not made significant increases in staff and does not have an RN.
According to DIA, orphanages are required to refer one child for foreign adoption for every x dollars donated by the ASP. Thus, if the ASP funds a $10,000 project and the per-child donation is set at $1000 per child, then the orphanage would be required to refer 10 children for intercountry adoption to the ASP. Should the orphanage not have 10 children who are qualified for intercountry adoption, then, according to DIA, the orphanage director is required to find the additional children to complete his side of the agreement. Two orphanage directors have confirmed to consular officers that they are feeling pressure to find more children for their orphanage to "compensate" ASPs for their donations.
Another effect of the donation system is that it can reduce the protections that Vietnamese law grants to birth parents, such as the required 30 day search for birth parents and/or domestic adoptive parents as described above. Since, in most cases, the ASP has a close relationship with the orphanage, the ASP representative may be informed as soon as a potentially adoptable child enters the orphanage. This can result in the issuance of a "soft referral," where adopting parents are notified that they have been matched with a child before the completion of the two consecutive 30 day search periods. The DIA has stated that such pre-referrals are illegal. Nonetheless, in over 40 documented cases, DIA has taken no action to punish or prevent the issuance of soft referrals, noting that all they can do is to inform provincial or district officials of the law and request their compliance.
Local officials throughout Vietnam have reported that they have never received any calls in response to ads run seeking the birth parents of a deserted child. In fact, officials at the Ministry of Justice acknowledge that such advertisements are ineffective as many families in these provinces have no access to TV or radio and are often illiterate. Vietnamese social workers also note that if a child is abandoned, the birth family is most likely to reclaim the child 3-6 months after the abandonment. However, the ads are run only one week after the abandonment, further decreasing their effectiveness. Further, provincial officials have stated that the advertisements are made in a manner that significantly decreases the likelihood that they will be heard or seen by the birth families. Investigations by the Embassy have also confirmed that the ads are not effective. In 6 cases where investigations by the Embassy have located the birth family of allegedly deserted children, the birth families said that they never heard or saw any ads seeking the parents of the child.
Orphanage directors in two provinces have confirmed to the Embassy that while they receive applications from families interested in domestic adoption, they do not process these applications. They have said that the reason these applications are not processed is that their orphanage will receive a donation from an ASP if the baby is adopted internationally, but not if the child is adopted domestically. One orphanage director stated that he would need "permission" from the ASP funding his orphanage in order to release a child for domestic adoption, noting that the monthly support payments the ASP made for the children gave the ASP the "authority" to decide the child's future.
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Types of Adoption Cases
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Under US Immigration law, children can be adopted if they are orphans due to the whereabouts of their birth parents being unknown (desertion) or if one or both birth parents have permanently relinquished custody of their child to the orphanage, (termed "abandonment" by US Immigration law, but commonly referred to as relinquishment). Prior to the suspension of adoption in 2002, 80% of cases were relinquishments, and 20% were abandonments. Since the Memorandum of Agreement (MOA) went into effect in 2005, those figures have flipped with over 85% of the cases involving desertions. Orphanages not involved in intercountry adoption, however, have reported to the Embassy that they have not seen any increase in the number of deserted children, and the vast majority of children in these facilities are children in care . Post has received multiple, credible reports from orphanage officials that facilitators are deliberately staging fraudulent desertions to conceal the identity of the birth parents.
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Relinquishments
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Cases where one or both birth parents have permanently relinquished their child to an orphanage account for 15% of cases filed under the Orphan First program. 75% of birth parents who were interviewed by a consular officer stated that in addition to payments for food, medical care and administrative expenses, they received payment from the orphanage in exchange for placing their child in the orphanage. On average this payment was six million Vietnamese Dong, which is the equivalent of 11 months salary at minimum wage in Vietnam. Many of these families cited these payments as the primary reason for placing their child in an orphanage. The majority of these parents also state that they had not considered placing their child in an orphanage until a health care worker or orphanage official suggested to them that they should do so and informed them that they would receive a payment for doing so. Many of these parents also report that orphanage officials told them that the child will visit home frequently, will return home after they reach a certain age (often 11 or 12), or will send remittance payments from the United States. In these cases, the majority of birth parents have said they do not consent to the adoption if any of these conditions are not kept.
The Ministry of Labor, Invalids and Social Affairs (MOLISA) has stated that the payments to birth parents described above are unauthorized and not funded by government sources. The Ministry of Justice has likewise confirmed that such payments are illegal under Vietnamese law. MOLISA has stated, however, that there are absolutely no regulations on how orphanage directors can spend the money given to them by ASPs and that orphanage directors can give this money to anyone they wish, as long as the recipient did not have to take any action, such as relinquishing a child, in order to receive the donation. Accordingly, while MOLISA can confirm that the reported payments from orphanage officials to biological parents must have come from ASP funds, they do not have the ability to take action or to investigate reports of child buying.
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Desertions
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Throughout Vietnam, officials at orphanages connected with intercountry adoptions report a sharp increase in the number of deserted children has since 2005, the year that the adoption agreement with the United States was signed. Orphanages in 7 provinces report a 17 fold or greater increase in desertions. Officials at orphanages not connected with intercountry adoption, however, have not seen an increase in desertions. A statistical review of child desertions reveals a series of facilities that have an unexplained high rate of child desertions.
Provincial records also document an unusual pattern of "desertion pockets." For example, in one province in 2007 there were 77 cases of child desertion. Of these, 76 occurred at one particular orphanage. The director of this orphanage told the Embassy that before he signed an agreement with an ASP, the orphanage was home to 10 children, most of whom had been relinquished. By January 2007, the orphanage was home to 23 children, of whom fifty percent had been deserted. By January 2008, the orphanage was home to 70 infants, with over 90% of them having been deserted. The orphanage director attributed the growth in the number of children and the number of desertions to the fact that the orphanage was receiving funds from the American ASP. He also stated that the orphanage had hired contract employees to find children between zero and six years of age whose families were in a particularly difficult situation and encourage the families to put their children in the orphanage. The orphanage guards also confirmed that desertions were extremely rare before 2006, but now they “find” five infants per month on average.
In other cases, individuals report finding children in a field or by the side of the road. Often the individual who purportedly found the child (child finder) is a police officer, a village official or a member of their immediate family. These individuals are often related to the orphanage director or the local official who approves adoptions. Embassy investigations have shown that many of these reports are fraudulent. These include cases in which those individuals, who only months or weeks before had signed statements claiming to have found a deserted child, told consular officers that they had never in their lives found a deserted child. In one case, the child finder could not remember finding a child, even though the purported event had happened the day before. In another case, the child finder stated that the police told her if she did not sign a fraudulent statement claiming that she had found a child in 2007, they would arrest her for kidnapping in connection with a child finder statement that she signed in 2006.
In over 10 cases, Embassy investigations have discovered the identity of the birth mother in cases where a child was purportedly deserted. In all of these cases, the birth mother was known to orphanage or hospital officials, but these institutions fraudulently document the case as a desertion. In some cases, this was to conceal payments to the birth family. In others, children were declared to be deserted with unknown parents after the birth parents failed to pay outstanding hospital bills.
In one of these cases, the official Vietnamese documentation the child was born at Hospital X and then the birth mother left the hospital and was untraceable. An Embassy investigation showed that the child was born by C-section at a different hospital. The child was pre-mature and had significant respiratory problems and thus was transferred to Hospital X. Based on information from the hospital director, the Embassy located and interviewed the birth mother, who stated that she had visited her son at the hospital several times, but that the hospital director would not let her hold the child until she paid a 12 million Vietnam Dong hospital bill. She stated that she applied to have the bill reduced due to her low income, but the director refused to consider the application. Additionally, she stated that she had been told that her child would require lifelong treatment for water on the brain and that, as a result, her son had been transferred to Orphanage Y for care. She was shocked to hear that the medical report from the U.S. panel physician stated that the child was healthy. After considerable pressure from the U.S. Mission, this adoption was canceled and the child is now back with his birth parents.
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Unlicensed Facilities
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In five provinces, the Embassy has discovered unlicensed, unregulated facilities that provide free room and board to pregnant women in return for their commitment to relinquish their children upon birth. None of these facilities openly advertises its services. Women learn of the facilities existence solely by word of mouth. While the facilities are open and the women are free to come and go as they please, they incur a debt for each night that they stay that they have to pay if they do not relinquish their child. Recent Vietnamese media reports of such facilities have revealed that women often live in squalor and in many cases are forced to labor during their stay. In several of these facilities, there is a policy that the birth mother cannot see her child after delivery, in order to prevent bonding. Women in these facilities report receiving up to 6 million Vietnam Dong as payment for their children. While the source of funding for these facilities is unclear, they appear to have close connections with nearby orphanages.
When the Embassy visited these facilities, we saw up to 20 women living in a single home. These women reported that orphanage officials came to the house in order to have them sign paperwork relinquishing their children. The women would then receive the promised payments. Often, the child is then taken to a nearby hospital or orphanage where a second set of paperwork is produced stating that the child was deserted. This is the paperwork that is submitted to the DIA and to the Embassy to support the claim that the child is an orphan.
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Vietnamese Documents - Issuance Procedures
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Documents relating to adoptions in Vietnam, such as birth certificates, abandonment reports, relinquishment agreements, and investigative reports are generally issued by orphanage directors, local People’s Committees, Provincial Departments and the Department for International Adoptions (DIA). The facts asserted in these documents are not verified by the issuing officials. Attempts by U.S. officials to verify the accuracy of these documents have routinely uncovered evidence of fraudulent or inaccurate information. Therefore, all documents issued by the authorities listed above and any other documents containing information not verified by the issuing authority cannot be considered adequate evidence of the facts claimed and, at best, may be used in conjunction with primary and contemporaneous secondary evidence or must be must be independently verified by U.S. officials in Vietnam before they can be considered valid for immigration purposes.
In cases involving the desertion of a child, local officials usually issue birth certificates and reports of abandonment at the request of orphanage or hospital officials without speaking to the individuals involved. For example, the People's Committee in one southern province told the Embassy that they issue whatever documents a local midwife requests without verifying the accuracy of the statements. This is done to "help her with her business with the orphanage." In a different province, village officials issued an official statement that a birth mother was single, even though their own registry book showed she was married and had four children. Further, MOLISA has confirmed that for deserted children a birth certificate can be issued showing the date and time of desertion as the date and time of birth and listing the birth parents as unknown, even if the true facts have been previously recorded in official documents.
The Embassy has received credible reports that some ASPs pay $10,000 per referred child to local facilitators. According to one of these facilitators, a significant portion of this money goes to the orphanage director, who is responsible for finding children. The facilitator and orphanage director then work together to create a false advertisement claiming that the child was abandoned, regardless of the child's true origins. This ad is then used to obtain the necessary paperwork from local officials and DIA. The facilitator noted that as long as the right fee is paid, no one tries to verify the facts of the case, and the documents are issued with no questions asked.
Fraudulent police reports have also been submitted to the Embassy in connection with adoption cases. For example, in one adoption case the original file stated that the birth mother was unknown. However, hospital records revealed the mother's name and address. When the Embassy requested an explanation as to why DIA approved the adoption case without a police search for the biological mother as required by Vietnamese law, DIA blamed the omission of the birthmother search report on the village police and provided a document dated March 21, 2007, stating that a police check had been done and they could not find the birth mother. However, the police officer who purportedly did the check stated he had not actually done a physical search, and that the date on the document was inaccurate. He stated that "about 20 days ago" the police chief in another village visited his office with a prepared backdated report about the search and asked him to sign, which he did.
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Vietnamese Documents - Verification Procedures
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Once a child has been matched with a prospective adoptive parent, the provincial level Department of Justice conducts a review of the file to ensure that it contains the proper documents required by Vietnamese law. According to provincial Department of Justice officials, the review consists of physically verifying that the child is in the orphanage and verifying that each required document is signed, sealed and in the file. There is no requirement to verify the accuracy of the information contained in the file. Further, there is no requirement to verify that a birth parent intended to relinquish their child or to verify the circumstances of a child's desertion. According to DIA, even if this review were to uncover any discrepancies, DIA and provincial Department of Justice officials are prohibited from conducting an independent review of the facts or speaking directly with the witnesses in the case. Instead, they are required by Article 45 of Decree 68/2002 to return the case to the official who prepared the original report. If this individual recertifies that his original report is correct, then the case is allowed to proceed.
DIA's explicit position is that, as long as the appropriate papers have been signed by the correct officials, DIA will certify that the adoption complies with Vietnamese law. DIA has stated that it does not actually have the authority to declare an adoption illegal, revoke a Giving and Receiving Ceremony, or cancel a referral. The lack of verification and accountability regulations in Vietnamese adoption law creates a situation where an unscrupulous orphanage director or local official who fabricates a "desertion" or "relinquishment” is also only that official who can investigate the alleged fraud in the case.
A provincial Department of Justice official told the Embassy of cases where under Vietnamese law children had been matched with adopting families and the cases were referred to her office for verification. In one case, hospital records stated that the birth mother had registered at the hospital under an assumed name and then died shortly after the birth. The child was listed as deserted. However, the DOJ official found a reference in the hospital file that the woman's family had come to the hospital to claim her body. As a result the official contacted the family, who stated that the hospital had transferred the child to the orphanage without their consent and that the orphanage had denied them visitation rights. The family has now been reunited with the child, who is being raised by his maternal grandparents. However, the official noted that under Vietnamese law no one had technically done anything wrong in separating this child from his family. Only her personal interest in the case and her ability to persuade other local officials to do the right thing prevented this child from being permanently separated from his family.
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Reports of Corruption in Adoption System
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The Embassy has received credible reports from current and former employees of ASPs working in Vietnam regarding corruption in the adoption system, beginning with the licensing procedures. Several ASPs have reported that they were told they had to fund tours to the United States for DIA and other government officials in order to receive their licenses. According to ASP employees, these tours included shopping sprees, where ASP employees were expected to pay for all of the purchases of the Vietnamese delegation. Others have reported being asked to pay bribes in order to obtain provincial licenses.
In addition, statements from adopting parents and ASP employees show that many ASPs ask adopting parents to pay cash donations to orphanage directors and staff. These payments are illegal according to the Vietnamese Ministry of Justice, but the Ministry acknowledges that they are widespread and that they are a key factor in the irregularities seen in the adoption system in Vietnam. Further, ASPs have reported that cash and in-kind donations have been diverted by orphanage officials and used to finance personal property, private cars, jewelry and, in one case, a commercial real estate development.
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Official Response to Reports of Irregularities
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DIA has acknowledged that when it receives reports from the Embassy regarding fraud in adoption cases, they meet with the ASP or local facilitators to develop a strategy to refute the Embassy's evidence. Frequently this consists of a second investigation where child-finders are notified in advance that they will be re-interviewed in front of the People's Committee. When they arrive they are reminded that they can be punished for having previously made false statements to the People’ Committee. In other cases, birth mothers from rural provinces who had told the Embassy they did not agree to relinquish their children were summoned to Hanoi at their own expense and ordered to appear before DIA to sign new relinquishment papers. Under this pressure, child-finders and birth mothers have recanted the statements they had made to consular officials.
The Embassy has informed the DIA of cases of potential fraud and illegal activity. However, the DIA has acknowledged that it has not taken any action, criminal or administrative, against any individual or organization for any violation of Vietnamese law or regulation concerning adoption. They have also stated that they have taken no action to address concerns or allegations of wrongdoing submitted to them by individuals, ASPs or the U.S. Embassy. Instead, DIA has stated that it is in the "humanitarian" interest of the Government of Vietnam to ensure that every proposed adoption is completed as quickly as possible. They note that the ASPs have made a donation for the child, and thus, even if they had the authority to revoke a referral or an adoption, they would not do so because they could not break their contract with the ASP.
Tuesday, April 22, 2008
When the Bough Breaks -- Criticisms of Tamil Nadu's Baby Cradle Scheme
A Cradle Baby Scheme was established by the Tamil Nadu, India state government in 1992 as a means to combat the problem of female infanticide in certain areas of the state. At the time, studies reported that there were about 3,000 cases of femal infanticide yearly in Tamil Nadu which approached 20% of all female infant deaths in the State.
Tamil Nadu launched the Cradle Baby Scheme under which parents could leave babies in cradles at government-designated reception centers. The Scheme started in centers in Salem, Madurai, Theni and Dindigul, the areas most notorious in Tamil Nadu for female infanticide. The scheme extended throughout the state and reception centers were set up in every district at major government hospitals and other sites.
In 1994 the State began arresting parents charged with female infanticide under Section 302 of the Indian Penal Code (murder). That year, an estimated 100 such cases were registered, resulting in a few life sentences.
As of June 1, 2007, the government had received 2,589 children through the Baby Cradle Scheme. Though the Scheme was established in 1992, most of the children, 2,495, were surrendered/abandoned through the Scheme after the year 2000.
On March 29, 2008, Renuka Chowdhury, the Union Ministry for Women and Child Development, issued a press release stating that baby reception centers would be set up in every district in the country of India. A country-wide Cradle Baby Scheme was to have been inaugurated in December 2007 but has been postponed purportedly due to a lack of funds. R. Smitha, managing director of the Puducherry Corporation for Development of Women, indicates that the nationwide program now will be launched during 2009-2010.
A special report in March 2008 by Tehelka Magazine outlines major criticisms of the Baby Cradle Scheme:
Lack of Records for Cradle Babies. The first children adopted out of the Cradle Baby Scheme would now be about 15-16 years old. But there is no information available about these children and whether the Scheme has benefited them. No records have been kept for these children and no one in the government knows what happened to these children after they were handed over to adoption agencies. In addition, although in many cases the identity of the surrendering parents are known, this information is not available for the babies who are abandoned through the Cradle Baby Scheme.
Mortality Rate of Cradle Babies. As of June 1, 2007, 404 of the 2,589 babies received under the scheme died. According to P Phavalam, project officer at the Society for Integrated Rural Development in Madurai, the infant mortality rate in Tamil Nadu is 31, but it is 162 for the cradle babies.
Relationship between Cradle Baby Scheme and the Proliferation of Unmonitored Adoption Agencies. Organizations such as the Integrated Rural Development are opposed to the Cradle Baby Scheme. They assert that the cradle babies have turned out to be an unending source of supply for adoption agencies in the State. A social worker at Peace Society in Coimbature estimates that 75% of the nearly 140 babies they had given for adoption were cradle babies. As of November 2003, 27 of the 45 babies housed at Concorde House of Jesus and 19 of the 46 children at Guild of Service were cradle babies. Critics say that the cradle babies give the adoption agencies recognition and acceptance for their activities “without excessive monitoring and interference.” It is felt that the pressure on the Department of Social Welfare to rehabilitate the babies under the Cradle Baby Scheme has made them more flexible towards the agencies and their practices.
It appears that the proliferation of adoption agencies in Tamil Nadu is intricately linked to the Cradle Baby Scheme. Between 2002 and 2006, the time frame when the government revived the Cradle Baby Scheme and extended it to all districts, the number of adoption agencies doubled from 11 to 23. In 2005, a four-month study on the functioning of adoption agencies in the State prompted by the exposure of a kidnapping and sale racket of approximately 350 children, found that there was “big competition” among adoption agencies to get babies from the Cradle Baby Scheme. It also found that these agencies received large donations from prospective adoptive parents. According to the report, “We were told these donations are not accounted for and could range from Rs. 50,000 (approximately USD $1,254) to Rs. 2 lakh (approximately USD $5,015).
Questions about Welfare of Cradle Babies. With the lack of oversight over cradle babies who have been transferred to adoption agencies comes concern over their welfare. In November 2006, a five year old cradle baby in Attur had been found to have been tortured by her adoptive parents with around 300 burns and injuries on her body. As a result, the Tamil Nadu government ordered a study on the status of children put for adoption, but its findings have not been made public. Some call on the government to require annual agency reports of the child’s welfare until the child turns 18.
Questions about Cradle Babies Placed in Inter-Country Adoption. As of January 1, 2007, 1,472 cradle babies were adopted within India and 115 were adopted outside the country. Some opposed to the Cradle Baby Scheme are concerned that the cradle babies internationally adopted are growing up in an alien culture contrary to the subsidiarity principles set forth by the 1989 United Nations Declaration of the Rights of the Child and the 1993 Hague Convention on Inter-Country Adoption. A. Renganathan, director of the Salem-based NGO Village Reconstruction and Development Project asks, “Can the government establish that no Indian parent was willing to adopt any of those 115 children?”
Questionable Impact of the Cradle Baby Scheme on Female Infanticide Rates. Female infanticide rates have not decreased. According to M. Shankar, convenor of the Tamil Nadu chapter of the Campaign Against Negligence of Girl-Child, “Dharmapuri’s sex ratio in the 0-6 age-group is 877 compared to the state’s ratio of 939. Similarly, the female infanticide rate is 73 against the state’s rate of 55.” A. Renganathan says that some parents prefer to kill unwanted girl children rather than handing the children over to the government saying, “It causes grief for a few days, then it’s over. To hand over the child for adoption would give them life-long worry.”
The Cradle Baby Scheme Legitimizes Traditional Discrimination Against Female Children.
Instead of alleviating discrimination against females, critics charge that the Cradle Baby Scheme actually reinforces it. For example, the highest number of babies received under the Scheme were in Dharmapuri. The Scheme was launched in Dharmapuri in 2002. By February 27, 2008, the reception center at the Dharmapuri government hospital received 1,044 babies. According to the director of the center, only 41 of the 1,044 babies were male and most of these males had some disability. Thus, critics say, the message is clear that male babies are abandoned only if they have a disability, whereas a girl is dumped because of her gender.
Lack of Adequate Funding for the Cradle Baby Scheme. The Tamil Nadu government has not allocated sufficient funding to the Cradle Baby Scheme. According to the Social Welfare Department, funding has ranged between Rs. 6 lakh (approximately USD $15,045) and Rs. 12 lakh (approximately USD $30,090). Activists allege that the Scheme is poorly funded and there is no exclusive staff devoted to operating it. As a result, there are no people on hand at the various reception centers to counsel parents who come to surrender their children.
The Cradle Baby Scheme Leaves Other Alternatives Unexplored. The group Social Movement Against Female Infant Mortality recently urged the government to suggest alternative schemes to save female babies. The group suggested that it provide more financial assistance to girls in the family. For example, a marriage assistance scheme provides Rs. 15,000 (approximately USD $376) to one girl in a family. If this assistance could be extended to other girls in the family, it could bring about a change in attitude it says. In Mettur, Salem district, the Welfare Centre for Women and Children, has come up with a new program that identifies pregnant women and places those who have two or more girl children in a high risk category who are then closely monitored. The director, R. Sampath, says this close watch has had an effect on reducing female infanticide.
Usha
“The Cradle Babies,” by Asha Krishnakumar, Frontline, Vol 22, Issue 11, June 3, 2005.
“Where Do Rejected Little Girls Go…”, by PC Vinoj Kumar, Tehelka, Vol. 5, Issue 12, March 29, 2008.
“In the Interest of the Mother and the Child,” by Khushboo, Tehelka, Vol. 5, Issue 12, March 29, 2008.
“Killer Districts” by PC Vinoj Kumar, Tehelka, Vol. 5, Issue 12, March 29, 2008.
Tamil Nadu launched the Cradle Baby Scheme under which parents could leave babies in cradles at government-designated reception centers. The Scheme started in centers in Salem, Madurai, Theni and Dindigul, the areas most notorious in Tamil Nadu for female infanticide. The scheme extended throughout the state and reception centers were set up in every district at major government hospitals and other sites.
In 1994 the State began arresting parents charged with female infanticide under Section 302 of the Indian Penal Code (murder). That year, an estimated 100 such cases were registered, resulting in a few life sentences.
As of June 1, 2007, the government had received 2,589 children through the Baby Cradle Scheme. Though the Scheme was established in 1992, most of the children, 2,495, were surrendered/abandoned through the Scheme after the year 2000.
On March 29, 2008, Renuka Chowdhury, the Union Ministry for Women and Child Development, issued a press release stating that baby reception centers would be set up in every district in the country of India. A country-wide Cradle Baby Scheme was to have been inaugurated in December 2007 but has been postponed purportedly due to a lack of funds. R. Smitha, managing director of the Puducherry Corporation for Development of Women, indicates that the nationwide program now will be launched during 2009-2010.
A special report in March 2008 by Tehelka Magazine outlines major criticisms of the Baby Cradle Scheme:
Lack of Records for Cradle Babies. The first children adopted out of the Cradle Baby Scheme would now be about 15-16 years old. But there is no information available about these children and whether the Scheme has benefited them. No records have been kept for these children and no one in the government knows what happened to these children after they were handed over to adoption agencies. In addition, although in many cases the identity of the surrendering parents are known, this information is not available for the babies who are abandoned through the Cradle Baby Scheme.
Mortality Rate of Cradle Babies. As of June 1, 2007, 404 of the 2,589 babies received under the scheme died. According to P Phavalam, project officer at the Society for Integrated Rural Development in Madurai, the infant mortality rate in Tamil Nadu is 31, but it is 162 for the cradle babies.
Relationship between Cradle Baby Scheme and the Proliferation of Unmonitored Adoption Agencies. Organizations such as the Integrated Rural Development are opposed to the Cradle Baby Scheme. They assert that the cradle babies have turned out to be an unending source of supply for adoption agencies in the State. A social worker at Peace Society in Coimbature estimates that 75% of the nearly 140 babies they had given for adoption were cradle babies. As of November 2003, 27 of the 45 babies housed at Concorde House of Jesus and 19 of the 46 children at Guild of Service were cradle babies. Critics say that the cradle babies give the adoption agencies recognition and acceptance for their activities “without excessive monitoring and interference.” It is felt that the pressure on the Department of Social Welfare to rehabilitate the babies under the Cradle Baby Scheme has made them more flexible towards the agencies and their practices.
It appears that the proliferation of adoption agencies in Tamil Nadu is intricately linked to the Cradle Baby Scheme. Between 2002 and 2006, the time frame when the government revived the Cradle Baby Scheme and extended it to all districts, the number of adoption agencies doubled from 11 to 23. In 2005, a four-month study on the functioning of adoption agencies in the State prompted by the exposure of a kidnapping and sale racket of approximately 350 children, found that there was “big competition” among adoption agencies to get babies from the Cradle Baby Scheme. It also found that these agencies received large donations from prospective adoptive parents. According to the report, “We were told these donations are not accounted for and could range from Rs. 50,000 (approximately USD $1,254) to Rs. 2 lakh (approximately USD $5,015).
Questions about Welfare of Cradle Babies. With the lack of oversight over cradle babies who have been transferred to adoption agencies comes concern over their welfare. In November 2006, a five year old cradle baby in Attur had been found to have been tortured by her adoptive parents with around 300 burns and injuries on her body. As a result, the Tamil Nadu government ordered a study on the status of children put for adoption, but its findings have not been made public. Some call on the government to require annual agency reports of the child’s welfare until the child turns 18.
Questions about Cradle Babies Placed in Inter-Country Adoption. As of January 1, 2007, 1,472 cradle babies were adopted within India and 115 were adopted outside the country. Some opposed to the Cradle Baby Scheme are concerned that the cradle babies internationally adopted are growing up in an alien culture contrary to the subsidiarity principles set forth by the 1989 United Nations Declaration of the Rights of the Child and the 1993 Hague Convention on Inter-Country Adoption. A. Renganathan, director of the Salem-based NGO Village Reconstruction and Development Project asks, “Can the government establish that no Indian parent was willing to adopt any of those 115 children?”
Questionable Impact of the Cradle Baby Scheme on Female Infanticide Rates. Female infanticide rates have not decreased. According to M. Shankar, convenor of the Tamil Nadu chapter of the Campaign Against Negligence of Girl-Child, “Dharmapuri’s sex ratio in the 0-6 age-group is 877 compared to the state’s ratio of 939. Similarly, the female infanticide rate is 73 against the state’s rate of 55.” A. Renganathan says that some parents prefer to kill unwanted girl children rather than handing the children over to the government saying, “It causes grief for a few days, then it’s over. To hand over the child for adoption would give them life-long worry.”
The Cradle Baby Scheme Legitimizes Traditional Discrimination Against Female Children.
Instead of alleviating discrimination against females, critics charge that the Cradle Baby Scheme actually reinforces it. For example, the highest number of babies received under the Scheme were in Dharmapuri. The Scheme was launched in Dharmapuri in 2002. By February 27, 2008, the reception center at the Dharmapuri government hospital received 1,044 babies. According to the director of the center, only 41 of the 1,044 babies were male and most of these males had some disability. Thus, critics say, the message is clear that male babies are abandoned only if they have a disability, whereas a girl is dumped because of her gender.
Lack of Adequate Funding for the Cradle Baby Scheme. The Tamil Nadu government has not allocated sufficient funding to the Cradle Baby Scheme. According to the Social Welfare Department, funding has ranged between Rs. 6 lakh (approximately USD $15,045) and Rs. 12 lakh (approximately USD $30,090). Activists allege that the Scheme is poorly funded and there is no exclusive staff devoted to operating it. As a result, there are no people on hand at the various reception centers to counsel parents who come to surrender their children.
The Cradle Baby Scheme Leaves Other Alternatives Unexplored. The group Social Movement Against Female Infant Mortality recently urged the government to suggest alternative schemes to save female babies. The group suggested that it provide more financial assistance to girls in the family. For example, a marriage assistance scheme provides Rs. 15,000 (approximately USD $376) to one girl in a family. If this assistance could be extended to other girls in the family, it could bring about a change in attitude it says. In Mettur, Salem district, the Welfare Centre for Women and Children, has come up with a new program that identifies pregnant women and places those who have two or more girl children in a high risk category who are then closely monitored. The director, R. Sampath, says this close watch has had an effect on reducing female infanticide.
Usha
“The Cradle Babies,” by Asha Krishnakumar, Frontline, Vol 22, Issue 11, June 3, 2005.
“Where Do Rejected Little Girls Go…”, by PC Vinoj Kumar, Tehelka, Vol. 5, Issue 12, March 29, 2008.
“In the Interest of the Mother and the Child,” by Khushboo, Tehelka, Vol. 5, Issue 12, March 29, 2008.
“Killer Districts” by PC Vinoj Kumar, Tehelka, Vol. 5, Issue 12, March 29, 2008.
Monday, April 21, 2008
Investigation of baby trafficking scheme in Costa Rica
14 individuals were detained by police on March 4, then later released in Costa Rica on suspicions of participating in an illegal adoption scheme. The 14 individuals include a family court judge, a lawyer and two social workers employed at a clinic in San Jose. Also believed to have been detained are some of the would-be parents.
Police believe that the scheme targeted mothers who were in financial need. Costa Rican adoptive parents may have paid about $10,000 per baby. It is believed the scheme involves at least three babies who were purchased since June 2006, but police suspect there are more infants involved. Chief Prosecutor Francisco Dall'Anese indicated that some of the mothers suffered from drug addiction.
According to Jorge Rojas, chief of Judicial Investigation Police, “We have evidence of the sale of a child, who perhaps went to a family enthused to have a baby. But this trafficking is prohibited by law. Even thought it was a direct deal, in which the mother handed over the child, it was in exchange for money.”
Allegedly, the lawyer who was detained was the mastermind behind the scheme. The social workers may have referred the targeted mothers and the judge allegedly signed off on the adoption paperwork in exchange for a portion of the fee paid by the adopting parents.
Formal charges have not yet been filed. The judge and social workers have been suspended for six months pending the results of the prosecutor’s investigation. There is no evidence currently that any of the infants were adopted outside of Costa Rica but police are continuing to investigate.
Usha
Costa Rica Nabs 14 for ‘Selling Babies’, Associated Press, March 4, 2008
Costa Rican Police Arrest 14 in Baby Trafficking, Tico Times, March 5, 2008
Alleged Costa Rican Baby Traffickers Released, Tico Times, March 7, 2008
Police believe that the scheme targeted mothers who were in financial need. Costa Rican adoptive parents may have paid about $10,000 per baby. It is believed the scheme involves at least three babies who were purchased since June 2006, but police suspect there are more infants involved. Chief Prosecutor Francisco Dall'Anese indicated that some of the mothers suffered from drug addiction.
According to Jorge Rojas, chief of Judicial Investigation Police, “We have evidence of the sale of a child, who perhaps went to a family enthused to have a baby. But this trafficking is prohibited by law. Even thought it was a direct deal, in which the mother handed over the child, it was in exchange for money.”
Allegedly, the lawyer who was detained was the mastermind behind the scheme. The social workers may have referred the targeted mothers and the judge allegedly signed off on the adoption paperwork in exchange for a portion of the fee paid by the adopting parents.
Formal charges have not yet been filed. The judge and social workers have been suspended for six months pending the results of the prosecutor’s investigation. There is no evidence currently that any of the infants were adopted outside of Costa Rica but police are continuing to investigate.
Usha
Costa Rica Nabs 14 for ‘Selling Babies’, Associated Press, March 4, 2008
Costa Rican Police Arrest 14 in Baby Trafficking, Tico Times, March 5, 2008
Alleged Costa Rican Baby Traffickers Released, Tico Times, March 7, 2008
Workshop 3.1: Information Sharing Prior to Adoptive Placement: What is Required and What is Ethical?
Ethics and Accountability Conference
Sponsored by Ethica and Evan B. Donaldson Adoption Institute
October 15-16, 2007
Sponsored by Ethica and Evan B. Donaldson Adoption Institute
October 15-16, 2007
Bullet points for discussion during Workshop 3.1:
- What do prospective adoptive parents have a right to know?
- What medical, social and background information should professionals be required to find, share with, and interpret for prospective adoptive parents?
- How can ethical practice in sharing information with prospective parents best be promoted?
Panelists:
Bruce Boyer is a Clinical Professor and Director of the Civitas ChildLaw Clinic of the Loyola University Chicago School of Law. He has taught and practiced in the area of children’s law for almost twenty years, specializing on issues in the areas of child welfare, child custody, and adoption. He also has taught courses in juvenile law, trial advocacy, ethics, and administrative law. Professor Boyer is the author of numerous articles on issues relating to children and the law, includingethical issues in representing parents in child protection hearings and the right to counsel in termination of parental rights cases. He is currently a member of the Evan B. Donaldson Adoption Institute’s Board of Directors and a member of the Illinois Supreme Court Commission on Professionalism. He has served as Chair of the American Bar Association’s Steering Committee on the Unmet Legal Needs of Children. Prior to his position at Loyola, Professor Boyer taught for 12 years at the Northwestern University School of Law in Chicago, where he served as Supervising Attorney of Northwestern’s Children and Family Justice Center.
Dr. Dana Johnson is Professor of Pediatrics, member of Division of Neonatology and Director of Research and Education for the International Adoption Clinic at the University of Minnesota. Dr. Johnson’s research focuses on the short- and long-term effects of early childhood institutionalization on child health and development. Dr. Johnson serves on the Editorial Boards of Adoption Quarterly and Adoptive Families Magazine and is a Senior Research Fellow in the Evan B. Donaldson Adoption Institute. He has authored over 200 journal articles, book chapters and abstracts.
Nora O’Farrell is the Director of Adoptive Families Together (AFT), a parent-run program of the Massachusetts Society for the Prevention of Cruelty to Children (MSPCC). As director of AFT, Ms. O’Farrell oversees the provision of education, advocacy, training, and support to families, professionals and communities about the unique circumstances inherent in the adoption experience. Her experience includes collaboration with child welfare agencies, working with children and youth with behavioral health issues, and providing post adoption support for families.
Johana Oreskovic is the Director of Post-Professional Educational Programs and International Students Services at the University at Buffalo Law School where she also teaches courses in adoption law. Her primary interest is the regulatory framework within which international adoptions are conducted. Professor Oreskovic has widely lectured on the use of the Immigration and Nationality Act’s visa fraud prosecutions and child trafficking for purposes of international adoption. She is a member of the Board of Directors of Ethica.
Dana Johnson
Dr. Johnson was trained as a neonatologist. A little over 25 years ago occurred Indiana’s Baby Doe case involving a baby born with Down’s Syndrome. The parents were counseled by two physicians. Their obstetrician had experience with raising a handicapped child in his own life. This doctor said the child would lead a painful and miserable life. Their pediatrician said the opposite, that the child could live a happy life. The baby could not eat, so by not treating the child, the child would starve. The Indiana court system said the family made a choice between two competing opinions and the parents could choose. The baby died while the case went to the Supreme Court. In response, the Reagan Administration enacted Baby Doe Regulations which said food could not be withheld from children because they were handicapped. This infuriated the physician community for intruding into the decision-making process. In the Baby Doe case, there was not a well-reasoned process in decision making because bad info was provided to the parents.
Our response at that time was to suggest that we have ethical propositions on which to base decision making. That might be something to apply to ethical decision making in the adoption context:
- What do we believe about the children, the obligations of prospective adoptive parents and obligations of the agency? Starting with the preamble of the United Nations Convention on the Rights of the Child, a child has the right to grow up in permanent family and add to that: “where their needs are met.”
- Primary obligation of parents: to be involved and make a decision
- Primary obligation of the agency -- advocate for the child. The decision should be child centered.
- A decision to adopt requires sufficient assessment and parental involvement in the decision-making process. There needs to be a conscious decision-making process and not be treated like a matter of fate. Parents need access to those who can help them make a decision. The agency should be an advocate for the child by obtaining the necessary information for the child and giving it to the prospective adoptive parents in an understandable form. They need to facilitate the family’s decision as to whether they can parent that child. And they need to provide sufficient time to make that decision. It is unethical to provide 24 hours and say another family is waiting. Agencies can’t abandon children who they find difficult to place.
- What information is really helpful? What families are concerned about at the time of adoption is not the information they are concerned about 5 years later. Parents become interested in behavioral issues 5-10 years after adoption. Some information is more helpful than others. For example, apgar scores are useless. However, nice pictures are very helpful. For example, with photos, can predict fetal alcohol syndrome much better. With respect to preadoption evaluations, we need to develop evidence-based information that will help us predict and help families make a decision. Head circumference at the time of arrival, length of institutionalization and growth after arrival all help predict IQ, but when all those factors are put in a regression equation, only 17% of information available before adoption predicts variance in IQ, and information available after adoption only gets up to 25%. We will inevitably never be able to predict what will happen in the future. So do medical evaluations help at all? Yes. He has looked at over 2300 kids adopted in Minnesota by 1600 families who had medical evaluations before adoption: found much higher rating of viewing international adoption as a way to build a family, much more appropriate expectations of what was going to be coming ahead and fewer behavioral problems in the kids.
O’Farrell
- Adoptive Families Together is a program from a parent’s perspective but is child centered. It consists of a mix of people who have adopted through the Department of Social Services (mostly older children and mostly identified as special needs), domestic infant children and internationally adopted children. There are a lot of prospective, foster and guardian families.
- The process should start with expectant parents. Parents must think about the child and family long before the child arrives. A child’s original family and the people who cared for them before us should be honored. As adoptive parents, it’s our duty and responsibility from the beginning to start thinking about not just about our needs.
- Adoptive parents have a right to know everything. Ethically, prospective adoptive parents should talk to a counselor type person who can help them figure out what kind of children they can parent. Professionals in the field can then use that information to do the match. It gives expectant parents a false sense of control to base their placement decision on letters from prospective adoptive parents.
- She advises prospective adoptive parents not to look at pictures because they will have an immediate reaction either positive or negative. Oftentimes the pictures are old. That said, prospective adoptive parents need to know the complete story on a non-identifying basis. It’s up to the agencies and attorneys to get the full story. Agencies need to take the time to really get to know the kids.
- We are the custodians for the adopted persons, but as they get older, it is they who will determine where they want to go in terms of connecting with their wholeness. It’s not our decision to close contact, it’s up to our children. We don’t need to be threatened by families of origin.
- Regarding post-placement services, adoption is a lifelong process for all of us. It’s a responsibility of society to do a better job of supporting all types of families. How can adoption be supported so that it doesn’t get pathologized?
Oreskovic
Discussed information sharing within the context of international adoptions. All her comments deal with the current legal framework. The situation may change following adoption of the Hague. The rules she is discussing will continue to apply to non-Hague countries.
1. What do prospective adoptive parents have a right to know in the context of international adoption?
They have the right to make an informed decision about whether they can parent a child based on available, medical, social and developmental info. What do we mean by a right and how can a rights-based analysis be framed in a way that takes into account the diversity of experiences and cultural norms reflected in international adoption? Her definition begins with the premise that in the Western legal system, the contours of a right are often determined by balancing the interests of all concerned in a transaction. In international adoption, this would be the adoptive parents, the child, the birth parents and possibly, the placement agency. Other things that need to be balanced are things like (1) the ability of orphanages, especially in impoverished countries to create and maintain records, (2) the ability of the sending country and its social welfare structure to the extent one exists, to gather maintain and provide information, taking into account different norms surrounding relinquishment and illegitimacy. The contours and scope of the right will vary widely among countries. Therefore, prospective adoptive parents deserve as much information as is available, but they also deserve from the agency truthful disclosure prior to selection of the country or disclosure from the agency to the extent there is limited availability of information and the consequences to parenting that child flowing from that lack of information. Adoptive parents, before they enter the process, have a right to know what they can know before they select a country and agencies have a responsibility to disclose truthfully the information they have at their disposal.
2. What medical and social background information should agencies be required to gather and disclose?
There are sometimes impenetrable barriers at sending countries to information. The orphan definition in the Immigration and Nationality Act for purposes of issuing visas really incentivizes the anonymous abandonment of children. For example, it is very difficult for a single parent to relinquish a child in many countries and if we want to facilitate the process, it is best to not have any information at all. All kinds of ethical problems flow from this. Who or which entity is in the best position in the process to obtain, share and interpret information? This implicates question 3.
3. How can ethical practice best be promoted?
In the context of an international adoption, it is the adoption agency that is in the best position to obtain the information required to allow for informed consent. Because of its role in the process, the agency has an affirmative duty to all triad members to ensure that it works continually in the context of the sending country to expand the realm of knowable information, provided that it doesn’t put vulnerable parties at risk in their own countries (for example, single parents) because: (1) the agency is likely to have the best contacts within the sending country, and (2) agencies are organized in lobbies so they are in the best position to leverage the U.S. government which can in turn leverage sending countries to provide more information.
Too often in the international adoption context, agencies fail to satisfy the ethical duty to obtain and expand the amount of knowable information because the relationship between agencies and adoptive parents is by and large controlled by contract, not statute.
- It has become the norm for contracts in international adoption to include extremely broad exculpatory clauses which in effect absolve the agency of any duty whatsoever to obtain accurate medical, developmental and social information on the children offered for placement. When challenged, courts have routinely upheld the validity of exculpatory clauses.
- A typical international adoption contract she found provides: “I release and discharge x agency from any and all causes of actions, claims, demands, damages, costs, loss of services and expenses which may arise now or in the future as a result of my attempt to adopt a child. My release includes but is not limited to the potential claims as set forth below: We will not be held responsible for physical or mental problems to which the child may be predisposed or may develop in the future. I release the agency from any actions or charges implemented by the U.S. or foreign country which may result in additional cost, procedures, delays or timeframes. We hold harmless the agency, its employees, agents and board of directors from any situation which may occur in regard to our personal safety within the sending country and from claims which we may have for emotional injury suffered from the adoption process.” The contract lists a number of diseases. “We have acknowledged that we have received all information available to the agency.
- In a contract based system, rights and responsibilities are determined through negotiation. Prospective adoptive parents have no power whatsoever. What can be done to facilitate access to and sharing more knowable information? Agencies should be required through the contractual and negotiation process to meet certain baselines. Adoptive parents, with some assistance, could negotiate clauses holding agencies responsible for a bare minimum, for example, undertaking due diligence to determine whether a child does in fact satisfy the U.S. orphan definition, vet in country personnel to ensure the child was not procured by improper payments, in countries that permit video and testing, that the agency took all available steps to obtain accurate info and provide prospective adoptive parents with avenues of legal redress instead of signing contracts of adhesion. This is unlikely to happen in the future but it is necessary to allow informed consent.
Questions:
1. Is there anything that can be done to guard against the falsification of information?
Oreskovic: In the international adoption context, there are many children who are legitimate orphans under the U.S. definition. It requires more effort and time and it is more of a concern not to make the process quick and easy but to make it legal. For example, in Cambodia it was easier to cook up birth certificates because agents were too lazy to obtain the information.
O’Farrell: On the domestic side, this involves the field of social work and accepted practice in how we’ve evolved into the adoption business. For infant adoptions, what information do we need to know and how do we develop a trusting relationship with the expectant parent? If they tell the truth, will the child not be placed with the best prospective adoptive parent they found for that child? Is there a safe environment to talk with the agency or attorney? For older child adoptions, it is negligence on the part of social welfare system that they are not getting more assessments and evaluations for the children. They are not putting together the full story for the children. Ethically, they need to do a better job of getting the real truth and real information so it can be passed on to the adoptive parents.
2. The founder for Friends in Adoption, a domestic placement agency commented that she works on the premise that people coming for services want a healthy baby and healthy family. They are not adversarial, but should work together. She has found that presented that way, people are forthcoming and the integrity of adoptive couple and the pregnant mother is there. If they cannot get information, typically from the biological father, the grandparents can be a wealth of information. So they will go to the extended family to try to get accurate information.
She also feels strongly there is a responsibility that adoptive parents care take the adoption until the child can care take the adoption for himself. Not to have available information around issues of addiction and mental illness is a disservice to the child. So they explain that to the biological family, not to be judgmental, but better prepared for the child to grow up healthy.
As an agency director, she doesn’t have a legal right to determine who can and cannot adopt beyond the criteria set forth in the home study process and procedure. Many times she has felt a family is not the right family to qualify for adoption, but she has been told she cannot disallow an adoption by the family.
Her agency began with a handshake but because society is so eager to sue, she now has a service agreement which requires sign off on every line of expectations.
3. Any advice for how to help state agencies understand the importance of knowing the child’s full history prior to matching?
O’Fallon: Training and supervision for agencies which means resources, schools of social work, and expectations of standards of care. Trauma evaluations are useful. Time of placement is critical for prospective families because once the adoption is finalized, records are closed. Prospective families are perceived as demanding if they ask for information which can jeopardize the placement.
4. David Brodzinsky commented that it’s one thing to share information and it’s another to interpret it. Information has to be provided in a way that’s useful. Most agency personnel and attorneys are not expert enough to provide updated information. Agencies are beginning to recognize they are not sure how to present information in a way that’s useful to prospective adoptive parents. It’s important that we not just focus on the issue of the right of prospective adoptive parents to have information, but that they have information they can use. What does risk really mean? It’s difficult to predict from medical or psychosocial information to long term outcomes.
O’Fallon: This is applicable to attachment issues where kids have difficulty trusting adoptive parents. She doesn’t know if families are presented information around when kids have poor caretaking from age zero to 1, multiple moves and many factors that may affect the ability to trust. Placing agencies and social workers have the responsibility to give the big picture.
With prenatal exposure to drugs and alcohol and attachment, parents have the most difficult time understanding what will happen and how they will have to treat children differently.
5. Dr. Dana Johnson commented that the trend has been towards informing families of complicated medical issues especially for children who have been institutionalized. Adoptions used to be low risk medically because many children were in Korea, from single parents who were in foster care. With adoption opening up to Eastern European countries, it has become much more difficult for parents to understand the effects of malnutrition and early deprivation. Expectations are the key issue.
Regarding absolving agencies, he has been involved with a lot of wrongful adoption suits. Most of the time, the families who are suing had the information in their hands but didn’t go to get it interpreted.
Behavioral and emotional issues often relate to drug and alcohol exposure. A child who cannot communicate or communicate in an adverse way is where families get stressed as opposed to medical conditions like hepatitis or cerebral palsy.
If families are scared out of programs, that is not a bad thing.
6. A person who operates a domestic adoption program asked for feedback on some of her practices. She doesn’t routinely show photos of newborns because they represent all that is hopeful and then the prospective parents don’t listen to the child’s background. She has found that alcohol is far more devastating than any other substance, but because it’s legal, she also finds that many birth parents underreport so she tells prospective adoptive parents that because of the birth parent’s lifestyle, she believes there is far more use.
O’Fallon: Suggests a parent-to-parent model, so prospective parents can meet other parents of kids with FAE issues.
7. A mother commented that she was not hearing ongoing information being mentioned. The flow of medical information is very important as an ongoing resource. If a mother who relinquishes is a young woman, her medical history consists of when she had chicken pox and later, after relinquishing, she could develop heart disease or cancer or illnesses that might be important to know. What is the ethical responsibility of agencies to pass on that information? She knows that they don’t in most cases.
Is there any ethical responsibility for information to be passed the other way? The author of The Same Smile relinquished a child and a subsequent child developed leukemia. She begged that information to be passed on and it wasn’t. Seems to be an ethical responsibility on the part of agencies both ways.
Moderator: From a legal perspective, no law would allow for enforceability of post-adoption info.
Johnson: Should agencies be collecting DNA from birthfather and mother at time of domestic or international adoption and archiving it to the day when we can do an analysis of the genome?
O’Fallon: Open adoptions would eliminate these problems. It’s secrecy and closed records that are creating this situation.
Oreskovic: For pre-adoption medicals, is there any research that demonstrates a different developmental trajectory among internationally adopted children, especially boys who don’t fall into clinical populations? For example, short-term post-institutional issues that may affect relationships with other children, maturity levels, etc.? Johnson replied that the problem is that the research deals with populations, not individuals. There is some data regarding long-term issues for children adopted from institutional settings. Risk factors have to do with deprivation early in life in terms of physical and sexual abuse. There are genes with only one copy in males that will predispose them to more conduct disorders if abused early in life if a certain enzyme is present. Other studies have shown no boy/girl differences except attention issues for males getting into early adolescence issues and having more behavioral issues.
8. A domestic agency worker commented that she knows of no other way to practice ethically than to pass on information from the birth family. If they have a birth parent who has placed more than once and doesn’t place with the same family, she immediately put both families in touch with each other. Her agency started contracting with a cord blood banking business. A lot of families are banking cord blood to help with medical issues later on.
Usha
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