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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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