Intercountry adoption exposes many shortcomings in domestic and international legislation.
The veneer of philanthropy regarding intercountry adoption is beginning to fade as issues are more broadly and better understood, and a dangerous connection to child trafficking becomes more prominent. It is worrying for Africa then that it has been dubbed the 'new frontier' for intercountry adoption by the African Child Policy Forum (ACPF). Despite global rates falling to a 15-year low, Africa has experienced with a threefold rise in intercountry adoption cases in the last eight years.
Demand outweighs supply with 50 prospective adopters for every available child, and between 2003 and 2011 more than 41,000 African children moved overseas. Ethiopia now ranks second only to China in the number of children that leave for intercountry adoption.
Not bereavement or abandonment but poverty
It is estimated that there are 58 million orphans on the continent. While the proportion of these adopted may be small, it is clear that the trends are significant enough for government officials from over 20 African countries to have convened at the Intercountry Adoption: Alternatives and Controversies of the ACPF Conference in Addis Ababa, Ethiopia in May 2012.
What is shocking is how these orphans are characterised. According to Save the Children, over 80% of children in orphanages around the world have a living parent and most are there because their parents cannot afford to feed, clothe and educate them. In Ghana, the figure is as high as 90%. In Ethiopia, the government recently attempted to trace the families of 385 children from 45 institutions; the families of all but 15 children were located.
When seen through this lens, the African orphan crisis is more of a crisis in family support. Poverty is not a reason to remove a child from his or her parent, yet this is exactly what is driving Africans to give up their children in what they perceive are temporary arrangements which will give their children stability and an education before returning home.
The "orphan creation" industry
There is no word for adoption in most African languages and the concept is greatly misunderstood. Many African family systems have traditionally favoured informal care of children by extended family or community with no legal basis for the arrangement. Adoption agencies are accused of profiting from this misconception as parents are persuaded to sign away their children.
This is exemplified by the situation in Ethiopia. It could soon become the leading sending country in the world as adoption agencies there are accused of soliciting children directly from families. Women are coerced into relinquishing their new-borns and according to Dutch NGO Against Child Trafficking (ACT) the adoption process in Ethiopia "is riddled by fraud and other criminal activities. Parents are stated dead when they are not, dates of birth are falsified, false information is provided to the courts".
While Ethiopia has made progress in the past two years by placing 700,000 vulnerable children into alternative care such as community placements and domestic adoption, family reunification has still not been a priority and impoverished parents are coerced into giving up their children in what is dubbed an "orphan creation" industry.
A matter of money
The finances this industry commands shows why it is so hard to suppress. According to the Bureau of Consular Affairs in the United States, adoption service providers charged prospective parents up to $64,357 for processing an intercountry adoption in 2011. One UNICEF representative commented that running an orphanage in Ghana had been transformed into a lucrative 'business venture', beyond the realms of philanthropy. And in stark contrast is the amount of money needed to keep a mother and child together: it has been suggested that in Addis Ababa this would total $15 per month.
What is clear in international standards is that intercountry adoption is not mandatory and should be used only as a measure of last resort. This "principle of subsidiarity" protects the child's right to cultural identity and means domestic family-based solutions should take precedence over international ones. So, while there may be some circumstances when intercountry adoption is in the best interests of the child, this can only be determined if and when all necessary steps have been taken to secure appropriate care in the child's country of origin.
"Supporting families and communities so that they can look after their children themselves... pays enormous dividends," according to Jasmine Whitbread, Chief Executive of Save the Children International, "not only are individual children more likely to thrive and go on to be better parents, they are more likely to contribute to their communities and to their country's development."
However, there are extreme cases where family reunification is simply not possible. One example is when preachers brand children as witches, as has happened in Nigeria, blaming them for adverse events. As a result these children suffer physical or psychological violence and are driven out, attacked or even killed. Intercountry adoption may be the best alternative for these types of risk.
Legislation lacking
While African states largely fail to deal with the issue of adoption in their national legislation, international child rights law contains explicit measures addressing it. The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Convention) lies at the forefront of international protection.
The UNICEF Office of Research notes that abuses occur more frequently in private adoptions. The Hague Convention prohibits independent or private adoptions and only allows "accredited bodies" to perform tasks relating to intercountry adoption. This can only be done on a non-profit basis. Worryingly, only 13 African countries have ratified the convention. And this creates something of a legal loophole that preserves the images of some countries at the expense of others - both France and the US allow independent adoptions from non-Hague countries even though they are themselves signatories of it. A parochial understanding of forced migration crimes will continue to prevent progress: the US does not count children trafficked through international adoption in its trafficking statistics which include only labour and sex trafficking.
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Robust and comprehensive domestic legislation is crucially missing to link the provision of social protection measures with adoption law. With family protection measures in place, intercountry adoption should only be applied in exceptional cases, the need determined by the sending and not the receiving country, and only in accordance with the best interests of the child. Africa is currently failing its children in allowing intercountry adoption to take precedence over family reunification and family strengthening, and in allowing receiving countries to dictate the terms under which Africa's children find the homes they deserve.
There is much to be done. As Benyam Dawit Mezmur, Vice-Chair of the African Committee of Experts on the Rights and Welfare of the Child, noted at the close of the ACPF conference: "Africa loves its children...this requires action."
Elizabeth Willmott Harrop is a freelance communications professional, project manager, writer, researcher and trainer specialising in international human rights, especially the rights of women and children. See more of her work on her website or follow her on twitter @libertyhumanity
