Elizabeth Bartholet

Elizabeth Bartholet Interview, Part II

The Harvard Human Rights Journal is proud to feature its interview with Elizabeth Bartholet, the Morris Wasserstein Public Interest Professor of Law and Faculty Director of the Child Advocacy Program (CAP) at Harvard Law School. In this two-part interview, Professor Bartholet discusses the challenges facing international adoption. In this second section, Professor Bartholet discusses the powers exerting pressure on international adoption and legislative reform.

Interviewer: Julia Mas-Guindal*

* V.R. 2012 Harvard Law School. Lecturer of Law, Suffolk University College of Law. Research Assistant/Temporary employee at Harvard University. Corporate lawyer. Ph.D. candidate Complutense University in Madrid. B.A. Law & Business/LL.B 2009 Complutense University in Madrid. Master’s in Business Development 2008 ESCP-EAP (Paris).

Getting back to the second power, to the influence of the sending countries. [As stated] in your paper, International Adoption: The Human Rights Position, “the expenses of international adoption are paid by adoptive parents.” So it’s not costly, either for the sending or receiving country. But the thing is, in a world in which everything is about the money, my question is why did some of these countries adopt policies and restrictions on adoption, because, in a way from a financial view, they are getting funding?

Yes, it’s an important question. I do think these policies are seriously irrational from the point of view of these poor countries, but countries make all sorts of irrational decisions. They go to war, and there are different pressures that compel them for different reasons. I like to think that long-term, the rationality that underlies adoption might prevail, and I think at certain points in history for certain countries it does. They realize this is a good solution for the kids and that it’s a good solution for other people in the country too and for the government and that they are being relieved of kids that are just a burden on the country. So people like to talk about these in-country kids as “precious resources,” but in poor countries poor kids growing up institutions are not likely to do well or to prove a benefit to the country. I think these countries are just ignoring that economic rationality because of all these other political pressures swirling around.

You can see, for example, how this played out in South Korea. South Korea, I think for a while acted eminently rationally and had a really terrific international adoption system, and people in Korea didn’t want to adopt either because the kids were mixed-race kids or because of the blood bias in the culture. And so on a regular basis they facilitated international adoption. But at the time of the 1988 Olympics, some forces within the country opposed to the government criticized the government for such adoption, equating it as selling Korea’s children. And so, the South Korean government had two pressures. They had the economic pressure of kids in institutions, so why not let people adopt them, but then they had this other pressure – do they want to stay in office, here are these other people saying that our leaders are selling our children. So I think there are a lot of pressures swirling about other than the pure economic.

Another of the main problems facing international adoption that you pointed out earlier is that often sending countries are corrupted. So, for example, in a country with much corruption, like Guatemala or Colombia, it is not surprising to find public servants breaking the law and making a business of this, because they treat children like another commodity to trade with. My question is how can receiving and sending countries struggle against this corruption and how efficient is the prosecution of these people breaking the law?

Corruption is a problem. I think one of the issues is – and I just read an interesting article which correlated the level of corruption with the level of poverty – poor countries tend to be more corrupt, according to at least some people who study these things. And corruption does get focused on as a reason to shut down international adoption. I think my first response would be a little indirect, which is that just in the face of corruption we should not shut down international adoption. I think that’s the wrong solution. And of course it’s the popular solution because organizations like UNICEF don’t like international adoption anyway, and they don’t want to admit that, so for them corruption is the perfect excuse. It’s like, “Oh, we can just say we don’t like corruption, then we shut down international adoption until we solve corruption.” Well it’s hard to solve corruption. There is corruption in poor countries. And I think the hypocrisy here is that there is corruption in poor countries but there’s also corruption in rich countries – just maybe not as much of it.

But when there is corruption, it’s very rare that the response to it is to shut down the system altogether. We have corrupt people on Wall Street in this country and we don’t shut down the stock market. We don’t shut down the banks, forever at least. We might shut down one or two banks, but we don’t shut down all the banks. It’s only, I think, in international adoption that the response is “let’s shut it down.” Well because it’s very convenient, if you don’t like international adoption then that is a convenient response. I think the response to corruption instead has to be to focus more narrowly on ending corruption by punishing the people who deserve punishment, those who are violating the law. Now, that may not entirely stop corruption, since it’s hard to stop all corruption, and I think then one has to say, all right, corruption is bad, some level of illegality is bad, but how bad is it compared to the bad that flows from shutting down international adoption?

I think that is pretty easy to say that corruption is the lesser evil if you look at Guatemala for example, where there used to be almost 5000 kids per year getting homes early in life through international adoption, not suffering significant damage because they’re getting released at four months, six months, eight months from institutions. And often they had been in foster care and therefore suffered even less damage. So now with the shut down of international adoption because of corruption, 5000 kids a year are now not getting homes, and instead are living, or dying, in institutions or on the street. Basically [these kids are] getting systematically destroyed. [There are] huge violations of the Convention on the Rights of the Child every day in the conditions in institutions and on the streets that nobody is worrying about at all. So those are going on for all those kids on a daily basis. Of course some children are being saved from their mothers getting a thousand dollars in connection with their adoption.  But how evil is that kind of corruption and illegality compared to the evil of the 5000 kids having their lives destroyed?  I think there is just enormous hypocrisy among U.S. officials, among Guatemalan and other sending countries’ officials, and among the UNICEFs of the world in terms of refusing to look at the balance of benefits and costs. All they want to look at is “do we think corruption is bad?” Do we think baby buying is bad?”  Of course these things are bad, but it is also terribly wrong to deny infants and children what they most need in life – the chance for parenting.

We should respond to corruption in international adoption the way we respond to corruption in other areas, which is by focusing on the corruption and how to stop it by finding and punishing the people who break the laws, rather than by stopping the underlying institution from accomplishing all its legitimate goals.  It seems to me the US could do a lot to offer resources to countries like Guatemala to try to help them identify and prosecute the people who are breaking the law. Money would help, and maybe advice, and services in terms of that kind of prosecution would help. I think it could be done; but, there is no magic solution, and I think the most important thing is that policymakers keep in mind the overall [balance of] costs and benefits if they actually care about children.

So the problem again is that the focus is not on the children?

It’s not on the children, even though “the best interests of the child” is what everyone is always mouthing in this area.

In a regular adoption process, what you have are people who want to adopt children. And then, you have these private intermediaries who want to get paid. We would like to know, who are these intermediaries and if you think that all of these are necessary for the completion of an adoption, and maybe these intermediaries make too much money with these arrangements?

I would like it if international adoption was less expensive because then more people could do it, and more kids could get homes. So yes, I think the intermediaries are overpaid in that sense, but I totally believe that we need private intermediaries and I think that it’s a very bad reform direction when people say that we need to eliminate private intermediaries as a way of eliminating corruption. The problem is that effectively puts everything in the hands of bureaucrats. Now, what [solution] is that if bureaucrats are just as susceptible to corruption – usually the word corruption is associated with bureaucrats, not with private people. There is no way you’re going to eliminate, or no reason to think you’re going to be successful in eliminating baby buying or kidnapping by simply eliminating private intermediaries. You can regulate private intermediaries, and make it so that they will go to jail if they violate the law, and that’s what we do in this country.  We have lots of private intermediaries that arrange adoption. The reason we want to keep private intermediaries, and you want to keep, if you will, business in this area, is that these are the people who see themselves as having an interest, even if it’s largely a financial interest, in putting kids who need homes together with parents who want to give those homes. That self-interest is healthy, because they are serving the interest of the kids as well as the prospective parents.

When you put it all in the hands of bureaucrats, (1) you still have the corruption risk, and (2) governments and government bureaucrats often see their goal as to avoid risk, and you take risks if you take action, and it’s always the government that seems to see the symbolic value of holding onto kids, keeping kids in their ethnic groups, and all that kind of thing. Whether within this country or in other countries the barriers to adoption usually come from the government and it has been the government, not individual birthparents, who have thought black kids belong with black parents. It was never the black birth mothers in this country who thought that, it was the government who didn’t want to place those kids across racial lines. For the most part, birth mothers who can’t raise their kids want them to get a home and they are going to make that deal if they have a chance to. So when the government gets in the middle, it’s the government that ends up for whatever crazy reasons often feeling motivated to hold on to kids and deny them homes.

Do you think that international adoption is a business today? Or that there is a possibility that this will become a business?

Well, I just don’t think that [business] should be used as an evil word. I think we need private intermediaries to make adoption happen. And, if you look at the world of, for example childbirth, everybody thinks childbirth is wonderful. Well, it’s a business – hospitals and doctors get paid and nobody says, “Oh my God we have to eliminate business, let’s make it so that the government bureaucrats do childbirth or do other things that we think are good and wonderful things.” Adoption is a good and wonderful thing. Why does it make it evil that lawyers might get paid to finalize the surrender of parental rights or the adoption in court? It’s to me no different than lawyers getting paid to draw up the sale of a house or marriage documents, and doctors facilitating heart operations or childbirth.

What do you think is the biggest legislative reform to foster and promote adoption today?

Let’s just say there isn’t hardly anything that fits that category. First imagining the Hague Convention on International Adoption, it was thought for a period that the goal was to coordinate and facilitate adoptions between countries. But it turned into something very different. Again, because the forces hostile to international adoption got involved and started saying that “facilitate” was just a dirty word and we couldn’t even think of that, we had to think of it as a new way to place restrictions against bad things happening. So that is what The Hague became. The Hague, as it turns out, isn’t in itself a terrible document, and it’s in my view a small step but a significant step forward from the Convention on the Rights of the Child in principle, because it seems to make clear that international adoption should be seen as a better option than in-country foster care for children. So that’s a good thing, but it’s being used by organizations like UNICEF, and even by the US government, to shut down lots of countries. So it’s turned out to be, so far, a net negative force for international adoption. And there’s just nothing very good, sadly, that one could give as an answer to your question.

I would like to know – what would be the key points of international adoption law reform?

Well that’s an excellent question, and I have thought about that some. I think that the starting point of international adoption law reform should be thinking “How can we better serve children?” Millions of children who need homes – if we had a law that truly took their needs seriously, what would it say? I think it would say we have to organize things to facilitate as many of those children as possible getting homes as early as possible without violating birthparents’ rights. That, for me, would mean for example, that we should have what largely doesn’t exist in the world: a law that would say, look at and identify the children who are in institutions and on the streets who don’t have parents in any meaningful sense. And if they don’t have parents that either are nurturing parents now or could be very soon, free those children up for adoption and focus on trying to find homes for them. So that doesn’t exist.

Within this country, we have something of a model in the Adoption and Safe Families Act of 1997, which says that if children have been in foster care for 15 months, the state must move to get them out of foster care. They either must go back to the family of origin or they must move on to adoption if they shouldn’t go back to the family of origin. There’s nothing like that in the rest of the world. And in most institutions, including one that one of my children was in as a baby, in that institution I looked at the other kids there ranging from 0 to 5 years old and said “Oh, what about all these kids?” “And are any of them also available for adoption?” And I was told, “No, none of them are available, they all have parents.” They don’t see the parents – maybe sometimes one of the parents might come once a year. But nobody is freeing those kids up for adoption. For the most part there is absolutely no system to free the kids up. And if you say there should be such a system, UNICEF and other such organizations and people are outraged – that would be a violation of parental rights.

So their idea of parental rights is that even if parents can’t raise the kids it doesn’t matter, in an ideal world we should be making it so that parents can afford to raise their children. And in the meantime, when that won’t happen, the kids should sit and rot. That’s their idea of human rights.

Well my idea of human rights is that kids should have them also. And anybody who thought that kid rights were even vaguely equivalent to adult rights would say “Of course if the parents can’t raise the child in the pretty immediate future you should free that child so it can find some other parent.” So I think we need that law; we need a law that would say to bureaucrats “You are at risk if you don’t place children.” Right now bureaucrats are at risk if they do place children because it might violate parent rights. They should be at risk if they hold children too long, if they deny the child’s basic human right to a home. Translating that general idea of the law to specifics would take some time. But that needs to be the starting point. We could do it – it’s not that it’s hard to think what the law would look like in the specifics; it’s that the starting point has to be 100% different from where it is now.

This concludes the Journal’s conversation with Professor Elizabeth Bartholet. Part I of the interview is available HERE.

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