An issue that cannot be easily solved
THE questioning of 11 couples in Mexico in relation to an adoption scandal again highlights the deep complexities that still remain in inter-country law and practice.
This is despite Ireland formally incorporating an international agreement — the Hague Convention on the Protection of Children and Co-operation in Respect of Inter-country Adoption 1993 — into law in 2010. Although it took some time for Ireland to formally put the agreement into law, it has generally been welcomed by all of those involved in the inter-country adoption process.
Inter-country adoption can provide a good alternative to birth-family life, but only where children are deemed legally adoptable and where there are safeguards to ensure protection of the most vulnerable.
The commencement of the Adoption Act 2010 on Nov 1, 2010 represented an important step forward in Irish family law. The act has four main objectives:
* The consolidation and repeal of the existing legislation in the area of adoption.
* The formal establishment of the Adoption Authority as the central authority for Ireland (an indep-endent quasi-judicial authority).
* Facilitating the recognition of bilateral agreements concerning inter-country adoption.
* The incorporation of the Hague Convention into Irish Law, thus giving the latter force of law within the State.
At the heart of any debate on inter-country adoption, it is vital to remember the process should always be approached from a child’s needs-led perspective rather than an adult’s needs-led approach. However, it appears this can be lost sight of throughout the process.
While the Hague Convention was designed to provide a regulatory framework which would eliminate the possibilities of child trafficking and baby-selling, it was also anticipated that it would preserve the integrity of the adoption process itself, including the protection of the parties involved.
In theory, the convention aims to facilitate co-operation between sending and receiving countries in respect of inter-country adoption and to ultimately ensure that the best interests of children are protected at all times.
However, the reality is that 18 years since its creation, Hague has in some ways failed to meet its primary objectives in relation to protecting children. Indeed, in many ways it falls far short of ensuring the best interests of children involved in international adoptions.
Mexico, as a sending country, has been party to the Hague Convention since 1986, but has still managed to find itself wrangled up in the latest controversy involving Irish couples.
From an Irish perspective, the implications of the incorporation of the convention for prospective adopters is that from Nov 1, 2010, they can technically only adopt from countries that are also signatories to the convention or countries with which the Adoption Authority has agreements based on Hague principles.
From a practical point of view, this means Ireland can no longer do adoption business with countries which were at one stage popular sending countries such as Russia, Vietnam and Ethiopia.
Although the relatively new legal framework has been in place for just over 12 months, the recent adoption scandal in Mexico has demonstrated that the safeguards cannot necessarily eliminate corrupt and abusive practices in Irish inter-country adoption.
While the Adoption Authority of Ireland issues regular advisory notices on its website, it is clear these are of limited use. This can be seen from the fact that one such notice issued as far back as Sept 26, 2011, stated in respect of Mexico: “Prospective adoptive parents who propose to adopt from Mexico should not enter into any arrangements with adoption agencies, individual agents or individual birth families until further clarification has been provided by the authority.”
This recommendation has been reiterated in more recent notices, including that of Jan 16. Yet Irish couples still find themselves embroiled in this recent controversy.
To say the least, it is very disappointing that Ireland, so soon after incorporating the Hague standards into Irish law, has found itself caught up in a situation where children, birth mothers and prospective adopters have been exposed to many of the abuses which are often associated with inter-country adoption.
While it is clear that all concerned are still finding their feet in relation to the operation of the new process, it is important to remember that implementation of the Adoption Act 2010 does not automatically eradicate corruption or unethical practices, particularly where there are no sanctions for non-compliance.
A critical question which arises is, aside from the central authorities concerned, who bears the responsibility for ensuring the practical safeguarding of the child’s best interests in this process? Given the potentially large number of adult participants involved in the process, both in sending and receiving countries, it is imperative that all concerned uphold a real commitment to the protection of children’s rights.
What must also remain central to any discussion or debate concerning the future of inter-country adoption and the implementation of Hague principles in Ireland is that the best interests of the child should be the absolute focus. While the Hague Convention and its principles now form part of Ireland’s theoretical legal framework, it is imperative that these principles are translated into practice and do not remain merely aspirational.
However, one thing that remains certain is that adoption, in whatever form, will remain a contentious issue both in legal and practice terms. It is a complex field raising serious ethical issues and will remain a subject area that will continue to be debated.
* Dr Aisling Parkes is a lecturer in law at the department of law at University College Cork. Dr Simone McCaughren is a lecturer in the school of applied social studies.
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