Policy Proposals for
What United States policies, laws, regulations, and practices need to be reviewed with an eye toward change?
When reporting “The Baby Business,” the Schuster Institute spoke at length with experts, government and nonprofit officials, scholars, and practitioners in international adoption. From those interviews, several specific U.S. policy changes emerged that might help ensure fairer adoption practices. Below is a summary of those policy changes that U.S. officials might consider, accompanied by a listing of the relevant law, regulation, or policy and suggestions of the changes the U.S. Congress or State Department could make to improve the system.
1 Require “universal” Hague accreditation, for all agencies arranging intercountry adoptions, from every country. The Intercountry Adoption Act of 2000 requires all adoption agencies providing services in adoptions from Hague-signatory countries to be accredited under State Department regulations. (Of the world’s 195 or so countries, only 81 have entered the Hague Convention. More than two-thirds of U.S. citizens’ international adoptions come from “non-Hague” countries, including Russia, Korea, Kazakhstan, and Ethiopia.1) Accreditation may be imperfect, but at least it allows the State Department (and the Justice Department) some way to hold agencies responsible for what they do overseas.
- What Congress could do: Amend the IAA so that accreditation is required for all intercountry adoptions, from any country.
2 Prohibit cash transfers. Except in extraordinary circumstances, adoption agencies should not require individual parents to carry in and hand over large sums of cash—to government officials, orphanage officials, or others—in exchange for adoption services. Although once required in some countries like China and Russia, cash transactions have been made obsolete in most countries by the expansion of modern banking systems and wire transfer services. The Hague Guide to Good Practice recommends no cash transfers in §5.5 Donations 246.
- What the State Department could do: Amend the Hague regulations by prohibiting cash transfers for adoption services or humanitarian donations except under extraordinary circumstances that are clearly explained and clearly defined.
3 Hold U.S. adoption agencies accountable for all their overseas partners’ actions. In theory, this is now required by the IAA of 2000, but the State Department’s regulations allow an important exception, called “unsupervised providers.” In these cases, sources that provide children for adoption in foreign countries, like hospitals or facilitators (considered “unsupervised providers” under the law), can submit documentation saying they’ve done the right thing when getting parents’ consent to relinquish a child or when reporting on a child’s background. This may be fine in Hague countries, where a country’s central authority has a responsibility to ensure the child is genuinely in need of adoption. But in other countries, fraudulent documents have been a large part of the problem. The State Department should consider requiring all agencies to have a legal duty to scrutinize and check on all their overseas sources’ activities—not just “supervised” ones.
- What the State Department could do: Delete §96.46(c).
4 Limit and track adoptions’ overseas fees in more detail. In regulation §96.40(b), the State Department requires agencies to disclose the total that the adoptive parents will be charged in each of nine categories. Those categories are almost impossible for prospective adoptive parents to compare from one agency to the next, because each agency has its own way of naming and categorizing its fees. Moreover, agencies don’t necessarily know what to list where—and prospective parents (and accreditation reviewers) have a difficult time understanding exactly how what seem like disproportionately large overseas fees and donations are being used. It’s unclear exactly where all the money goes.
- What the State Department could do: Tighten §96.40(b) to require agencies:
- to list fees in a standardized format
- to itemize overseas efforts in more detail
- to produce bank transfer statements or receipts for financial activities above a certain minimum in the foreign country, as the Hague’s Guide to Good Practice advises in §5.3 Setting reasonable fees and charges, 238. “Greater transparency may be achieved if official receipts could be issued in respect of all activities requiring payments abroad…”
- to submit these lists of expected standardized and itemized charges, as well as of receipts for the actual fees, to both prospective parents and Hague reviewers.
5 Limit and track how much agencies can pay their overseas partners, workers, and independent contractors. Under current regulations, U.S. agencies are permitted to compensate their in-country workers and partners with amounts that are disproportionately high compared to the country’s economy. Regulation §96.34(d) says that “The fees, wages, or salaries paid … are not unreasonably high in relation to the services actually rendered, taking into account the country in which the adoption services are provided and norms for compensation within the intercountry adoption community in that country.”
- What the State Department could do:
- Change regulation §96.34(d) to say that wages for international adoption work should be proportionally related to comparable in-country work. Take out everything in the above sentence after “and norms for compensation.”
- Post a spreadsheet showing, in “popular” adoption countries, the usual fees, salaries, and wages for similar work. Require agencies to submit their wages and salaries to accreditation reviewers, benchmarked against this spreadsheet.
6 Earmark some small amount of federal funds for CoA investigations. Currently, if CoA (Council on Accreditation) or CDHS (Colorado Department of Human Services) receives allegations of wrongdoing, they cannot afford to check with a random sample of an agency’s adoptive parents, or to contract with an investigator to examine an agency’s overseas operations against its claimed humanitarian expenditures. (This is important, because humanitarian donations may be used for good, or may be diverted into use for child-buying and personal profit.)
- What Congress could do: Find or allocate federal funds for adoption-related investigations, and amend the IAA to permit the use of these funds for adoption investigations.
7 Inform the American public about individual adoption agencies’ records. Right now, it’s nearly impossible to find out about agencies’ past practices.
- What the State Department could do: Publicly announce which agencies’ referrals of children for adoption by U.S. prospective parents have been denied visas. Explain what kind of questions or problems triggered the denial, without compromising the prospective parents’ privacy. Experts say that denials are so rare that they should be considered major red flags.
- What the State Department could do: If investigators have substantiated a complaint against an a U.S. adoption agency, consider posting at least a brief statement of its substance publicly—even if the problem isn’t large enough to revoke accreditation.
8 Enable federal agencies to heighten the scrutiny of, or suspend accepting, an individual adoption agency’s visa applications from a particular country, whether that country is “Hague” or not.
- What Congress could do: If possible, authorize the State Department to consider suspicious patterns in each adoption agency’s referrals; to report any unusual patterns on its website; and to temporarily add a higher level of scrutiny or stop accepting an agency’s visa applications for prospective adoptive children in a particular country if evidence suggests that its adoptions may not be in children’s best interests.
9 Criminalize the purchase of children for international adoption. Under U.S. law, buying a child for the purpose of adoption isn’t a crime—except in connection with a Hague-country adoption, under the IAA. However, most U.S. adoptions are from countries that have not enacted the Hague.
- What Congress could do: Criminalize all child-buying for adoption, in any country, whether or not the other country has enacted the Hague Convention.
NOTE: This page from the Schuster Institute for Investigative Journalism website offers documentation of and background about serious irregularities in international adoption. For the systemic analysis of corruption in international adoption, please read “The Lie We Love,” Foreign Policy magazine, Nov./Dec. 2008, and visit our webpages dedicated to international adoption. For ideas about fairer policy solutions, please read “The Baby Business,” Democracy Journal, Summer 2010.
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Last page update: February 23, 2011