Elizabeth Bartholet & David Smolin Debate International Adoption

Fleasbiting is excited to announce a written debate between Harvard Law Professor Elizabeth Bartholet and Samford University Law Professor (and our own Fleasbiting blogger) David Smolin.  The debate will comprise a chapter in the upcoming book, "Intercountry Adoption: Policies, Practices, and Outcomes" edited by Judith L. Gibbons (Saint Louis University) and Karen Smith Rotabi (Virginia Commonwealth University) to be published by Ashgate Publishing in June 2012.  

The book can be pre-ordered online for a discount at Ashgate Publishing.  Frankly though, at a discounted cost of $108, it is priced more for serious research and university libraries than for personal or public libraries....which is why we're excited to have permission from the publishers to post the debate on-line where we can all read it.  I'll get to posting the link in a minute.  First things first....

Terms of the Debate:

Professors Bartholet and Smolin were each given the same three questions to answer independently (apart from each other, not knowing what the other's answer would be), and then one opportunity to respond to the other's answers.  Strict space limitations were enforced for both answers and responses.

This strictly controlled debate makes clear the two law professors' starkly different perspectives on the law, policies, and facts relevant to intercountry adoption.

I imagine that most readers of this blog will be familiar with Professor Elizabeth Bartholet.  She remains one of the more active, vocal, and well-known advocates for intercountry adoption (ICA)   Her many writings on intercountryadoption are either cited or else available for free download on her facultyweb page.

Likewise, most readers of this blog are likely familiar with Professor David Smolins' writings on international adoption.  Some can be found here on Fleasbiting; but most of Professor Smolin's writings on intercountry adoption are available for free download on his bepress webpage.

David Smolin says about the debate:  

The debate illustrates my argument that advocates for ICA, such as Prof. Bartholet, unintentionally undermine ICA by denying and minimizing the abuses and resisting necessary regulations on money, intermediaries, and agency accountability that could reduce those abuses.  Some ICA advocates (like Professor Bartholet) also minimize the significance of the losses and difficulties for adoptees of the trans-racial, trans-cultural, and trans-national nature of ICA, as well as the trauma to family and child of the loss of relationship between child and original family.  Although purportedly pro-ICA, I think this approach is contributing to its destruction.
  

By contrast, Prof. Bartholet classifies me with anti-ICA forces whom she sees as destructive of the best interests of children.   She perceives ICA as under assault from such forces.
  

In the midst of this debate are questions about the numbers and characteristics of “unparented” children (or orphans) in “need” of ICA, the extent of abusive practices, the significance and interpretation of the subsidiary principle and of relevant international law, and the nature of interventions short of full adoption.     

I look forward to comments (I hope respectful even if passionate!) on the debate or the issues it raises. 

And so without further ado, here is the link to the debate.  It will take you to the bepress site page for the debate.  To read the debate, click on the button to the left of the photo that says "download."  This will allow you to download the debate file (in pdf form) to your computer where you can read it:

Elizabeth Bartholet & David Smolin Debate International Adoption

Enjoy!  And again, as David said, comments and debate on the issues it raises are welcome.  Please post those comments here as there is nowhere to post comments on the bepress site.

Desiree

"The Debate" between Elizabeth Bartholet and David Smolin, currently pre-published on the internet by permission of the book publisher (see below) at bepress: Selected Works of David Smolin .

"The Debate" by Elizabeth Bartholet and David Smolin, to be a chapter in the upcoming book,

"Intercountry Adoption: Policies, Practices, and Outcomes" edited by Judith L. Gibbons (Saint Louis University) and Karen Smith Rotabi (Virginia Commonwealth University) to be published by Ashgate Publishing in June 2012.  The book is to include chapters by the following, many of whom are well known scholars, thinkers, and stakeholders in the field of adoption:  Peter Selman; Jonathan Dickens; Kathleen Ja Sook Berquist; Karen Smith Rotabi; Cristina Nedelcu and Victor Groza; Kay Johnson; Kelley McCreery Bunkers and Victor Groza; Kelley McCreery Bunkers, Karen Smith Rotabi, and Benyam Dawit Mezmur;  Femmie Juffer and Marinus H. van Ijzendoom; Laurie C. Miller; Monica Dalen; Elizabeth Bartholet and David Smolin; Judith L. Gibbons and Karen Smith Rotabi; Thomas M. Crea; Jesus Palacios; Rhoda Scherman; Hollee McGinnis; and Judith L. Gibbons and Karen Smith Rotabi.  The book is can be ordered online for a discount at Ashgate Publishing. Frankly though, at a discounted price of $108, it is priced more for serious research and university libraries than for personal or public libraries.

Finding the Truth & Returning Stolen Children: Journeying through Schizophrenic Interpretations and Confusing Realities in an Adoption Myth-Saturated Society

This post is a little different from others on Fleasbiting because it deals with a personal question.   One that we get repeatedly these days. 

While we don’t owe the world an explanation, I do think that explaining the situation that we negotiated is instructive for understanding just how difficult these situations are and why reform is necessary both to keep them from continuing to happen to other families and to show the need for better help for families when they do happen.

I’m NOT going to tell our adoption story here on this blog.  For those who don’t know it, the broad outlines of the story can be found in a July 14, 2007 interview withSteve Inskeep at NPR:  “An Adoption GoneWrong.”   The story of how the girls that we adopted ended up in the adoption stream is also here:  “An Indian Adoption Story:  Stolen Children.”  (the story is on several pages, so to keep reading click “next page” at the bottom of each page)

So here, in its latest guise (a comment from our latest post which had nothing to do us & our story but was about Chinese adoptions and the US government), is the question we’re most often asked (Please note that I didn’t called the question a dumb question, but that the asker herself wrote “dumb question.”)

Dana’s Question :

Dumb question:  If you know your girls were stolen, surely they have adoption in India:  why did you not facilitate your girls’ parents adopting their children back?
I don’t get it.  You know they were obtained illegally even though you yourself were innocent of criminal intent.  So your answer to a wrong being done is…to perpetuate the wrong by continuing to keep this couple’s daughters far away from them for most of the year?
It’s like that adoption scandal in Fiji where children were also outright stolen.  As far as I know not one American family who adopted those kids has bothered taking them home and getting the adoption overturned OR paying for the natural family to adopt back their own children.
It’s nice you’re writing a blog about this stuff.  But it’s easy to write a blog.  If a wrong’s been done thought, and you could have fixed it and you didn’t, that’s not OK.

Answer:

Dana,

We did NOT know for sure that the girls were stolen.  It took six years to confirm the fact. 

And as for returning the girls to their parents....by the time the facts were confirmed it couldn't be done.  Even by their younger falsified ages, one was by then a legal adult, and the other was on the cusp of legal adulthood.  Legally and ethically, you cannot return adults to their parents.  Adults are their own persons, who belong to no one and who make their own legal decisions.  And by then, of course, these adults were culturally American and had become accustomed to a lifestyle very different from that of their mother’s rural Indian village, where women are not taught to read, are not schooled, and are married off at 14; these adults had also lost their first language by then.  What we did was take each of the girls to India for a reunion with their family.  The choice of what each did next in regard to their family and their lives was entirely theirs.  As for ourselves, we have remained involved with the girls’ original family since then.

You could still ask why it took six years for their allegations to be confirmed.  I'll try to explain that too.

Because they had been threatened and were told never to tell us the truth, the girls hid the truth from us for the first six weeks they were in our home.

Once we learned of their allegations we immediately contacted our placement agency and requested that they investigate the girls' allegations to confirm or refute them (yes, at first, we naively believed that our agency would be as concerned as we were and that they would investigate).

It took several months for us to realize that the agency felt no great urgency in the matter; soon too there was another Indian adoption scandal and the excuse that it was "too dangerous" to investigate.   Later we’d be told that the truth didn’t matter, but only what the girls believed was the truth.  Our agency over years refused repeated requests to investigate.

Busy that first year and a half with the girls' day to day emotionally disturbed behavior, rage, and terror, we also contacted the local mental health professionals our home study agency recommended (this was the only help we’d get from them).   The mental health professionals told us to come back in a year after the girls were through the "initial adjustment to adoption" and had learned English. 

It became quickly apparent that we were very much alone in analyzing the situation--both in determining the truth of the girls' allegations of being stolen children and also in determining what connection, if any, their emotionally disturbed behavior had to the possibility of them being "stolen children."  Without professional help to find out the truth and to set the girls’ behavior and allegations in a normative context, we had a hard time knowing how to understand both the truth of what the girls said and the meaning of their behavior and attitudes.

We were ALONE and IGNORANT and OVERWHELMED. 

The only ones willing to help us think through these things and make these judgments were other adoptive parents, and the consensus among these other adoptive parents both privately and publicly (on adoption support lists) was that the girls’ allegations were almost certainly NOT true.    

Remember that this was 1998.  Adoption corruption was NOT very much in the news and so the possibility that our daughters were illegally sourced seemed unreal and remote. 

In terms of the girls’ behavior and attitudes, the consensus (indeed, the assumption) was that our daughters’ behavior was at the extreme of the normal range, but normal nonetheless.  (Knowing what I know now, I would beg to differ and see their behavior as indicative of stolen children struggling to come to terms with injustice and a stolen life).   

As new adoptive parents we were very much in the sway of the adoption myth belief system and very much within the fold/peer pressure of adoptive parents who passionately believed in the adoption-myth, the trustworthiness of the international adoption system, and the commitment and competency of the involved governments to adequately regulate and police the adoption system.  

In other words to even entertain the possibility that what the girls alleged was true, one had to doubt or reject a very strong belief system reinforced by a strong community that represented our only help at that point.  1998 was not 2011, or 2008 or even 2005 in this regard.

[Note that almost all adoption corruption--whether coercion of first parents to relinquish, persuading non-infertile folks to become adoptive parents, or persuading the general public or anyone in particular of the absolute goodness of international adoption in spite of facts to the contrary--involves persuading people of a strong belief system (whose foundations have been laid for decades in our popular culture) and then reinforcing that strong belief system.  This belief system  is often at odds with other knowledge, emotions, and values and often requires the suspension of the usual protections of questioning assumptions, and using research and critical thinking to evaluate truth claims.]

I’m not saying that we didn’t seriously entertain the possibility of the girls’ allegations being true and suffer many sleepless nights as a result, just that it was much harder in that context to believe that they could be true without concrete confirmation.   Getting that confirmation or refutation proved to not be easy or even advisable.  Who could confirm or refute it?  Who was willing? 

In the meantime we were told there were many reasons we should NOT believe the girls.  And many other circumstances/contexts that made our quest more difficult if not ill-advised.  

Firstly, we were told that such claims (of being stolen children) were not uncommon among adopted children; the claims represented an inability on the part of the child to accept the truth of her situation and were essentially wishful/magical thinking used to explain away a mother's betrayal. 

Secondly, we were told that the claims might actually be true from the girls' point of view even if they weren't really true, as relinquishing parents sometimes staged scenes to make it appear to children as if the parents didn't have a choice in relinquishment so as to save face in the eyes of the their children. 

Thirdly, if their mother HAD relinquished the girls and gone on to establish a new life and a new identity ditching her children in the process (as we were told was common in India), then we (or anyone who didn't understand the culture enough to make inquiries discretely enough) could actually endanger the mother's health or even her life (outing her past to a new husband who would then beat or even kill her in retaliation).

Fourthly, we were told that the likelihood of the girls' stories being true was low because older children are hard to place and no orphanage director in his right mind would seek out hard to place children, steal them, and then get stuck with them (bad business, we were told).

Fifthly, the girls themselves were ambivalent about us finding their parents.  They refused to tell us why this was so; we could only guess.  My guess now years later is that it had to do avoiding the local custom of being married off a year after puberty (overdue & imminent in their cases). 

Sixthly, in terms of us dropping everything and running off to Indian ourselves to research things (which seemed impossibly difficult and ill-advised), it would have been nearly impossible.  We had no extended family to help us.  We were the parents of 5 biological children ages 2-13.  We were the new adoptive parents to two extremely emotionally disturbed children.  It was literally a full-time job just to keep the girls alive and moving forward.  We also had to earn a living.  There is no way one parent could have done everything while the other went off to India.

Seventh, we needed help in India.  We did not have an address; the name of the village was not on any maps we could find; we did not speak the language.  We did over a number of years ask individuals in the local community with family in the relevant state for help, but always the family members back in India would refuse to do anything.  No middle class Indians we could find wanted to wander around rural India looking for the girls’ parents, knowing that a broader adoption scandal in the state had rendered the situation potentially volatile.   It took us years to find a local Indian census map detailed enough to contain the name of such a small village; it took years to find the activist for the poor willing to go into a poor rural village, and with sensitivity make the right inquiries.   And even then her initial inquiries were rebuffed by those in the village; it took persistence and the right approach on her part to get the people to admit they knew the people involved.    We could have never done this alone. 

Eighth, the girls’ accusations, while extremely serious and deserving of immediate investigation, left a lot of critically-important, unresolved questions:  questions that could only be resolved by finding the family and discretely obtaining the truth.  There was literally no way for white Americans who didn’t speak the language to go to a tiny rural village and discretely make such inquiries, for our very presence in such a place would have created a sensation.  Again, without help of the right kind, we were helpless.   

Finally, perhaps most ironic of all (as I write this to explain why we did NOT immediately hop on a plane and head to India to search for the family) is the fact that there was considerable pressure from the adoption community to NOT take the girls allegations seriously.  We were literally told that continuing to consider the possibility that the girls’ allegations were true meant that we were evidencing a lack of commitment to our new daughters—that we were BAD parents.  We were told that we should simply buckle down and parent these kids.  We were told that there was “no way back for these kids” and therefore the sooner we came to terms with that, the sooner the girls would get beyond their emotional disturbance and settle in.  And so, ironically, for years and years the accusations against us were exactly the opposite of your accusation against us.  We were castigated for taking our daughters’ allegations seriously and—horrors!—the unmentionable, unspoken implication in the back of others’ minds: that we might even consider returning the girls if they had been stolen.    That’s what you call damned if you do and damned if you don’t.   The victims of the crime get blamed more than those responsible for the crime.

We were encouraged  by the adoption community during this early confusing time to interpret what the girls said as the opposite of face value.  If they said they hated us and missed their parents, we were to interpret that to mean that they loved us and really wanted us as parents but were afraid of rejection.

This is one reason why I speak of the adoption myth belief system.   How could anyone judge what is true or false in anything when presented with this kind of double-think?  And how could a child who actually WAS stolen ever be heard when everything she says must be subject to reinterpretation?  And when returning her to her parents is seen as immoral?  Three years into our adoption a psychologist actually told me that she could not be involved in our case if indeed we were to find out the girls were stolen, that returning the girls to their parents was even a remote possibility in my mind.—and I hadn’t even broached the subject.  The psychologist’s mind was just racing along the implications of finding out the truth.

Where is the normative information against which to judge whether particular behaviors and levels of emotional disturbance are outside the normal range and therefore might warrant setting aside reinterpretation strategies?  Are reinterpretation strategies ever correct?  Mostly correct?  Never correct?  Sometimes correct?  Who judges?

Are original families unfit to parent their own children if they live in societies that disrespect women?  Where does one set the bar?  Who’s to judge?  By whose standards?

So, Dana, you see, there were no easy answers.  There were only struggles.  And confusion.  And trying to pick between interpretations when we had little to no basis on which to do so.

If we had received the help we needed in 1998/1999, things would have been very different.  The family should have been found, the truth ascertained, and children returned, right then, at the beginning.

It isn’t easy to write a blog about this stuff.  It’s hard.  It’s about the search for justice when society doesn’t care.  It’s an attempt to get society to CARE by exposing the cruelty and injustice and ugliness of that which tries to pass itself off as good.  It’s an attempt to try to break the hold of the adoption myth on our society.    It’s an attempt to get people to wake up and extend the same human understandings of emotions, of a child’s love for her parents, and a parent’s love for her children to everyone—even and especially to first mothers and their children.    The wrong that was done against the girls’ parents cannot be fixed.  It could only have been fixed in the first year or two. 

Of course, it’s not OK that we didn’t fix it.  We bear the guilt for that even if we aren’t strictly speaking morally culpable (and had no criminal intent in adopting—we didn’t. We were the patsies).  And we live with it every day.  We were ignorant.  We were naïve.   Though we were looking for answers diligently, we didn’t find the answers in time. 

We are dedicated to ensuring that society is no longer naïve and ignorant about these things. 

We are dedicated to learning and understanding more about these things and sharing that knowledge with others.  Truth is an elephant surrounded by blind men.  I want to understand the perspectives of all the blind men and synthesize them into a holistic understanding.  I’m tired of the perspective of one blind man (the adoption industry) being presented as the truth, the whole truth, and nothing but the truth.  And I don’t want to substitute another blind man’s truth for the whole truth either.  I want to listen to all and synthesize them into an ever-evolving, ever-learning, ever-refined, complicated understanding that can then be used to help control this elephant of adoption so that it stops hurting people and is harnessed and trained and modified (and the more I learn the more I think it HAS to modified).

Desiree

Vacuous US Government Assurances Regarding China & Child Laundering: Do They Really Think We’re This Dumb ( Or Are They This Dumb)?

The following notice about adoption from China appeared last August on the US State Department of State's Bureau of Consular Affairs Intercountry Adoption page for China:

China

August 15, 2011

Notice: Concerns About Information on the Background of Children Adopted from China

The press has reported allegations that in 2005 local family planning officials in China, in the name of enforcing the “One Child Policy,” seized children from their birth families and sold them to orphanages. Embassy Beijing has been in touch with China’s Centre for Children’s Welfare and Adoption (CCCWA) about the allegations mentioned in the articles and CCCWA has promised updates on their investigations when they have further information. We are not aware of any intercountry adoption by a U.S. family that has been confirmed to be linked to these alleged actions.

In response to these concerns, we would like to remind adopting parents that verification of a child’s eligibility for intercountry adoption is an integral part of the intercountry adoption process. If there is evidence that documents may have been falsified or are not accurate, then officials at a U.S. Embassy or Consulate conduct an investigation before the visa is approved. If you wish to get more information on your child’s background, we suggest that you contact the adoption service provider that assisted you with the adoption.

If you have any further questions about this notice please contact the Office of Children’s Issues at: 1-888-407-4747 within the United States or 202-501-4444 from outside the United States.

More than 37,000 children were adopted into the United States from China during the boom years of 2000 through 2005. During that time, most (including myself) thought that the Chinese adoption system was almost completely free of child laundering---free of practices that illicitly obtain children through purchase, fraud, or kidnapping. (Of course, there has always been the underlying issue of the role of coercive population control policies as a significant factor in abandonments.) Since then, there has been an unending and growing series of revelations indicating that by 2002, and probably beginning by 2000, there was systematic misconduct in how children were obtained for intercountry adoption. It has now reached the point where these concerns and revelations have become publicized even within China, and where many adoptive parents have become aware of these difficulties.

This places those who adopted from China during these years in an enormously difficult situation, and sets the stage, as this generation of Chinese adoptees grows up, of a generation of Chinese adult adoptees wondering whether they were purchased or stolen children.

In this context, one might have thought that the governments involved would feel some sense of responsibility and ownership, given that every one of these adoptions was approved by both China and the United States. Instead, one sees an enormous face-saving set of denials. Given the authoritarian nature of the Chinese government, one may have expected that in China. For Americans, however, it is embarrassing to see our own government similarly engage in face-saving denial, for it indicates a government more concerned with saving its own reputation than in the best interests of the children and adults whose lives were directly impacted.

Consider the most recent U.S. Government public statement on this issue, posted on the official State Department adoption web site in August 2011, and linked and copied below. Notice the use of meaningless assurances, which one does not have to be a lawyer (as I am) to spot. For example, we are told that various parts of the Chinese government are involved in responding to these allegations and conducting investigations. While it has been true that sometimes the Chinese government conducts face-saving prosecutions that do go so far as to prosecute some individuals, we also know that the Chinese government tends to issue denials that any of the trafficked children ended up being placed overseas for adoption, and tends to minimize the scope of the scandals they investigate, due to their concern with maintaining the positive reputation of their adoption program. Is the United States government really telling us to trust that the Chinese government would tell us if they discovered that large numbers of trafficked children had been adopted into other countries? Do the U.S. government officials who wrote this really themselves believe that the Chinese government would publicize such facts if they discovered them?

Then, the U.S. government tells us that they are “not aware” of any U.S. adoptions which have been “confirmed” to be linked to a specific subset of these wrongs: the seizures of children by population control officials. A key word here is “confirmed.” The reason such has not been confirmed is that the Chinese government would not admit it if they had confirmed such a fact and the United States government does not itself investigate such allegations once the children have arrived in the United States. Without adequate investigation, such cases can never be “confirmed.” You cannot confirm what you do not investigate.

I will use my own experience as an example. We adopted two older girls from India who turned out to be laundered/trafficked children wrongfully taken from their family. We informed the United States government and the government of India. Yet, neither government ever conducted any investigations of these cases. Thus, even though we have done reunions with their family in India and have documented in detail that the children were adopted without consent and with false paperwork, in an official sense, these remain “unconfirmed” cases. And, of course, our own actions in informing the governments involved and conducting our own confirming investigations is relatively rare. In most instances where adoptive families suspect that the children may have been trafficked or laundered, they are far too frightened to either inform the government s involved, or investigate. And even among the minority of families that carry out their own independent investigations and confirm the wrongdoing, only a smaller minority ever informs the governments involved of what they have themselves discovered.

So, in short, it is entirely cynical for the government that fails to conduct the investigations necessary to “confirm” such cases to issue vacuous assurances. It would be like a government claiming that the crime rate is down after they systematically decide not to prosecute crimes.

The state department further assures us:

Verification of a child’s eligibility for intercountry adoption is an integral part of the intercountry adoption process. If there is evidence that documents may have been falsified or are not accurate, then officials at a U.S. Embassy or Consulate conduct an investigation before the visa is approved.

These assurances are similarly misplaced. First, the visa approval processes the government mentions here occurred before the children arrived in the United States; in terms of China before 2005 there were few suspicions that there was any wrongdoing, and hence presumably no such individualized investigations were conducted by the U.S. Embassy or Consulate. Second, in China relinquishment of a child is illegal, and hence adopted children were all officially “abandoned,” generally without any paperwork identifying their original families. This makes any after the fact investigation extremely difficult. Third, the normal processes for intercountry adoption would involve the United States government simply reviewing documentation of the child’s status as adoptable as provided by governments or others in the country of origin. Where the child is obtained through force, fraud, or funds, false paperwork is provided indicating the child was properly abandoned or relinquished, and then everything proceeds based upon a review of the false paperwork. Child laundering scandals in numerous nations, including China, as well as Guatemala, Cambodia, India, Vietnam, Samoa, and others, have indicated that this normal review of documents process is totally ineffective in screening out children who have been illicitly obtained.

So why does the government provide us with these disingenuous set of false but vacuous assurances? Presumably, the government believes that they can get away with it, and can appear to be responding to the publicized scandals in a purportedly responsible way. It is up to the diverse adoption community---adoptees, adoptive families, agencies, scholars, and original families (although usually powerless and voiceless) to let the government know that we are not fooled---nor are we amused---by this verbal sleight of hand.

David

Notice: Concerns About Information on the Background of Children Adopted From China, US Department of State, 15 August 2011

Response to the Christian Adoption and Orphan Care Movement

Law Professor and fellow Fleasbiting blogger David Smolin has recently posted a new article to his collection of adoption related articles at bepress.

"Of Orphans and Adoption, Parents and the Poor, Exploitation and Rescue: A Scriptural and Theological Critique of the Evangelical Christian Adoption and Orphan Care Movement" meets the trendy "Christian adoption and Orphan Care Movement's" arguments head-on in order to respond to them.

The abstract of the article is as follows:

The primary purpose of this essay is to demonstrate that the scriptural and theological analysis undergirding the evangelical adoption and orphan care movement is patently and seriously erroneous. Thus, this essay will demonstrate that, based on the standards, methods, and presuppositions broadly shared by evangelical Christians in analyzing scripture and theology, the evangelical adoption movement’s specific analysis of concepts such as “adoption” and “orphans” has been seriously deficient and has produced conclusions that are demonstrably false. The second purpose of this essay will be to indicate that these errors of scriptural and theological analysis have produced, and are producing, practices that in scriptural and Biblical terms would be called “sinful” and in more secular language can be called exploitative.

The article can be read by clicking on this link and then clicking the "download" button between the article title and the photograph.

Desiree

"Of Orphans and Adoption, Parents and the Poor, Exploitation and Rescue: A Scriptural and Theological Critique of the Evangelical Christian Adoption and Orphan Care Movement" by David Smolin, currently published on the bepress.com site with publication forthcoming in Regent Journal of International law, Vol. 8, No. 2 in Spring 2012. Additional publication of a shortened version of the article is forthcoming in May 2012 in a special Adoption Symposium Issue of The Journal of Christian Legal Thought, published by the Christian Legal Society.