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27 Child. Legal Rts. J. 48 (2007)
From Rhetoric to Best Practice: Children's Rights in Intercountry Adoption

handle is hein.journals/clrj27 and id is 202 raw text is: From Rhetoric to Best Practice:
Children's Rights in Intercountry Adoption
by Jini L. Roby, JD, MSW, MS*

Adoption, once a means of providing an heir or
keeping the family's wealth within the kin system,
has evolved over the past few decades into a method
of providing a permanent loving family to a child.I
As such, adoption is now commonly viewed as a
legal arrangement built upon   the foundational
concept of the best interest of the child, as touted by
most leading international conventions and domestic
laws.2 However, intercountry adoption has only been
a topic of discussion at the international level since
about the 1950s,3 and relatively few discussions
focus on connecting the concept of children's rights
and their best interest. Do the current rights of
children embodied in the international conventions,
insofar as intercountry adoptions are concerned,
necessarily serve the children's best interest from a
developmental point of view? While there is a
common perception that upholding children's rights
will in fact serve children's best interests, there are
many   points of disagreement, as well as a
disconcerting gap between what is thought to be ideal
in contrast to actual practice. In this article, children's
rights in the context of intercountry adoptions will be
examined, and practice guidelines will be offered
from a social development point of view. Section I
will provide a brief overview of children's rights in
the context of the rights of others involved in the
adoption process. Section II will examine the
evolution of children's rights relating to intercountry
adoptions. Section III encompasses a discussion on
children's rights before the adoption process begins.
Sections IV and V are focused on the rights and
practice guidelines during  and  after adoption,
respectively. Finally, in Section VI, some of the
unresolved issues related to children's rights will be
discussed with a view to future direction. I argue that
while the foundational international instruments
provide some guidance, the rights enshrined in
them are not currently being applied to their
maximum potential due to political, social and
cultural realities in both sending and receiving
countries. I will conclude that more effort must be
expended in collaboration between international
organizations,  national   governments,    and
practitioners to make children's rights a reality in
international adoptions.

I. Children's Rights in
a Larger Context
Adoption, or similar substitute family arrangements,
are prevalent all over the world.4 Although poverty is
central to the necessity of most adoptions, it is not the
only reason behind adoptions.5 Even in highly
developed countries, some parents choose adoption
as a means of providing a better life for their
children, while other parents are involuntarily
relieved of their parental rights as a result of abuse or
severe and chronic neglect of their children.6 Others
engage in adoption due to long held cultural
practices, such as adoptions between clan members.7
Adoption will continue to be practiced, and, with
globalization, intercountry adoptions are sharply on
the increase.8 Yet, besides the children, who are the
stakeholders in this process? How do children's
rights fit with the rights of other stakeholders?
The concept that children belong not only to their
families but also to the larger group is not new or
restricted to geographic regions.9 For example, the
former first lady of the Republic of Georgia, Mrs.
Nanuli Shevardnadze, was an advocate of keeping
Georgian children in Georgia.'0 She campaigned
vigorously, declaring it a matter of national pride and
identity. I Georgia is not alone in its nationalistic
sentiments about its children, as many other countries
prohibit or severely limit adoptions by foreign
nationals.' 2 The question is whether nations have a
claim on their children, as they might with other
resources. To be sure, there is a strong argument that
national sovereignty includes the ability of a nation to
control, to a degree, the emigration of its own
citizens. 13 The child's right to grow up in a family-
if not in his or her country of origin then in another-
will be discussed later,14 but the nation's right versus
the individual child's right is certainly deserving of
further exploration.
Within nations, especially within tightly knit
ethnic groups, children are seen as belonging to the
group, as evidenced by the Indian Child Welfare Act
in the United States15 and statutes governing the
adoption of Aboriginal children in Australia.'6 The
group's right to retain the child as one of its members
is especially significant for many of the world's
indigenous  populations  at  risk  of   cultural
disintegration and possible extinction.17

Children's Legal Rights Journal

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