Unpublished Paper
The Case for Moratoria on Intercountry Adoption
Accepted for Publication, Southern California Interdisciplinary Law Journal, Vol. 30, No. 2 (2021).
(2021)
Abstract
Now is the time for moratoria on intercountry adoption.
Further, resuming intercountry adoption should depend on certain conditions.
Such a call is neither radical nor unattainable, but would be entirely consistent with international law and the historical development of intercountry adoption.
In summary, the message is simple: intercountry adoption should not be done until and unless it can be done right. Doing intercountry adoption correctly means both meeting international standards and also providing remedies for past adoptions which violate those standards. The majority of intercountry adoptions over the last sixty years have occurred in contexts of chronic violations of current international standards, in the core sense that the separation of children from their original families frequently was unnecessary and hence adoptions induced and/or exacerbated unnecessary separations of family members. Remedies for such past practices have only rarely been provided. In practice, preventing future illicit practices without addressing past illicit practices has not worked, because it creates cycles of abuse amidst never-ending impunity. Hence, doing intercountry adoption correctly means not only preventing future illicit practices, but also providing remedies for past illicit practices.
Under these circumstances, it would be appropriate to impose moratoria on intercountry adoptions until and unless the issue of remedies for past wrongs is properly addressed. Now would be a particularly propitious time for such moratoria. Prior to the COVID-19 pandemic global intercountry adoptions were already down more than 80% from the peak around 2005. COVID-19 is producing a further reduction in intercountry adoption, approaching at times de facto moratoria as nations shut their borders to international travel. Rather than reactively freezing the intercountry adoption system due to the pandemic, it would be better for states to implement intentional moratoria directed at specific goals: a time of accountability and remedies for past practices contrary to international standards. Out of that process can emerge intentional state decisions about whether, and to what degree, to re-open intercountry adoption.
Keywords
- intercountry adoption,
- international adoption,
- children's rights,
- human rights,
- moratoria
Disciplines
Publication Date
2021
Comments
Accepted for Publication, Southern California Interdisciplinary Law Journal, Vol. 30, No. 2 (2021).
Citation Information
David Smolin, The Case for Moratoria on Intercountry Adoption, 30 Southern California Interdisciplinary Law Journal (publication planned for 2021).
Creative Commons License
This work is licensed under a Creative Commons CC_BY-NC International License.