| I. INTRODUCTION Adoption practices have changed radically over the centuries. This report will deal with the adoption of children exclusively from the viewpoint of Parliament's concern to promote human rights in all areas, and in this specific case, children's rights. A distinction must therefore first be made between the Roman tradition, which was aimed at adults and was based on the goal of providing a child and heir for those without children, and the modern view of adoption as a means of providing a family for parentless children. This report focuses exclusively on the latter type of adoption, which is now subjected to the pressures of both cultural change and external events. Our attitude to adoption is coloured by the changes taking place in modern-day society, which call into question our perception of human rights, the family, and the relationship between the State, the individual and basic social structures. This extends even to the very definition of the term 'child'. Globalization, relations between rich and poor countries, ease of movement and demographic changes also have practical implications for adoption. Even modern artificial procreation techniques may be seen as an alternative to adoption or, in some of the most extreme cases ('rent-a-womb', surrogate motherhood, offers to carry 'surplus' or 'superfluous' embryos), an extension of it. Furthermore, adoption is also particularly affected by differences in national legal systems. Private international law and rules governing the movement of persons are also germane to the issue. In this connection, judicial cooperation in civil and criminal matters is considered by the Union to be a matter of common interest (Article K.1) and to constitute due grounds for the adoption of joint action by the Council, on the initiative of the Commission or any Member State. Parliament's interest in the subject is therefore justified. II. ADOPTION: A CULTURAL AND POLITICAL ISSUE (A) A child's right to a family It must first be said that a major cultural change has taken place: adoption is now seen as a means of providing parents for a parentless child rather than the childless with a child. This new approach is now generally accepted, but, in practice, is not taken to its logical legal and cultural conclusion. It must also take into account another widely-repeated view: that children must be recognized as legal persons - a term which, although unnecessary from a legal standpoint (given that, under modern law, all human beings are taken to be legal persons), is useful for the purposes of determining which practical steps to take. In short, one must keep one basic principle firmly in mind: it is the child's interests, not the adult's, which must be protected. Experience has shown the family - which is characterized by stability, exclusivity, and the simultaneous presence of a male figure (the father) and a female figure (the mother) - to have the almost indispensable function of developing a child's personality. Although this type of family unit does not always produce the best results in terms of upbringing, it does offer the most possible guarantees. Contemporary political opinion is increasingly moving towards a recognition of other types of family unit, and there have even been calls for the legal recognition of homosexual couples. However, we can leave such issues to one side if we decide to allow ourselves to be guided by the best interests of the child. It is self-evident that the public authorities must focus on those arrangements which best serve the child's interests and offer the soundest possible guarantees. A child's right to a family must therefore be understood as its right to live in a family environment in which it receives guidance from a father and a mother sharing a stable relationship based on mutual affection. For the same reason, preference should be given to full adoption by a married couple (since marriage offers a better guarantee of stability) over a couple simply living together, or a single person. The principle of the child's best interests precludes any charges of discrimination, which would only be justified if the underlying purpose of adoption were to protect the interests of adults rather than those of children. Similarly, the old approach under which adoption was only open to the childless should be turned on its head. The experience of living with brothers and sisters helps to develop a child's personality, and one could therefore envisage giving preference to a couple which already has children over a couple which does not and sees adoption as a means of solving its own problems. Following the same reasoning, one is obliged to assert that, in cases where more than one child from the same family has been abandoned, they should all be adopted by the same family, wherever possible. The term 'preference' has been used advisedly: there may obviously be exceptional situations in which, for example, adoption by a single person is the only possible solution and is preferable, in its turn, to leaving a child in a state of abandonment or to its being taken into institutional care. There is, of course, no intention to place any negative connotation on the desire to have children. The intention is, in fact, to promote those options which best serve the interests of the child precisely by matching them with that very desire. A child's right to a family is, first and foremost, its right to a biological family, i.e. to be taken in, recognized and loved by its own birth parents. There is increasing acknowledgment of the right of every human being to its own identity, which implies the intangibility of its own genetic inheritance and its right to know about its own origins. One aspect of this right to an identity is the fact that it is in a child's interest for its biological filiation to be the same as that established by society, the law, and emotional ties. Our identity is linked to our origins, and any uncertainty or confusion in this respect can lead to a harmful situation in which a child is uncertain about its own psychological identity. Therefore, being abandoned by one's own biological parents can never be seen as something positive. Child adoption must thus be seen as a highly effective means of making up for a sometimes unavoidable evil. A number of important conclusions must therefore be drawn: 1. any policy designed to promote adoption should always go hand-in-hand with an extremely determined policy of assisting families with a view to preventing the abandonment of children as far as is possible; 2. any form of traffic in children for adoption is totally unacceptable, not merely because it violates human dignity, but also because it constitutes an inadmissible inducement to parents living in poverty to abandon their children; 3. the traditional 'contractual' approach deriving from Roman law should be abandoned: the biological family cannot 'sell' its children. The criterion for the adoptability of a child is not the consent of its parents, but an irreversible state of abandonment. The consent of the parents must be taken into consideration and is indeed desirable, but only insofar as it provides proof of abandonment and constitutes a means of deliberate, selfless cooperation with society for the greater good of the child; 4. poverty can never been seen as sufficient grounds for taking a child away from its parents; on the contrary, poverty constitutes grounds for the provision of economic assistance to families; 5. a child has a right to more than just a biological family: it above all has a right to the bonds of mutual affection and the indispensable educational support which a family should provide. Should these be totally lacking, the family may be said to exist in the formal sense only. A state of moral abandonment more harmful than mere physical abandonment may exist, justifying public intervention to make adoption possible; 6. the family's primacy over the state requires great care to be taken when declaring a child eligible for adoption and, where appropriate, support to be provided to the biological family, including in the form of temporary placement of children with other families. (B) The effect of falling birth rates on intercountry adoption An adult's desire to have a child must not therefore be seen as constituting a right, but as being a highly positive natural means of finding the best solution to the problems of an abandoned child. In this connection, consideration should be given to another major change which has taken place. In the past, the number of children available for adoption outstripped the number of families wishing to adopt. This situation has now been reversed in all the EU Member States: adoption requests far exceed the number of children available for adoption. Claims that children's homes are full are not true. Generally speaking, the only children which remain in children's homes in EU Member States are unwanted by prospective adopters (since most of the demand is for small, healthy children) or have not been totally abandoned by their biological parents. The lack of children available for adoption is not in itself a bad thing: it can be interpreted as a sign of greater responsibility on the part of parents and a greater unwillingness to abandon children. However, one factor, which has a number of consequences, must be highlighted. Procedures in all the EU Member States appear particularly slow and cumbersome. In fact, owing to the general scarcity of children, most of those available for adoption have been taken away from their biological parents, a situation which inevitably and rightly requires the provision of sound legal guarantees. Nonetheless, the main consequence has been a sharp rise in the number of intercountry adoptions, which in some Member States now exceeds the number of adoptions at national level. There is a very great risk of adoption degenerating under these conditions, particularly when the adoptive children are from developing countries. The authorities in Member States have no control over procedures in third countries, where the endemic poverty of certain population groups facilitates the traffic in children. Furthermore, couples travelling to non-Community countries with a view to adopting a child meet with enormous difficulties, such as unfamiliarity with the local language and procedures, economic problems and the need to take leave from work. At the same time, children from non-Community countries must be guaranteed the same rights as those from Community countries: they are not second-rate children. It must also be borne in mind that bringing a child into a family with a cultural background and traditions totally different from its own can cause serious problems for both the adopters and the adoptive child. There is also an unacceptable rivalry between countries, agencies and private operators all anxious to bring foreign children back to their own country in order to satisfy national demand. Lastly, differences between the various national legal systems lead to further complications. Nonetheless, intercountry adoption should not be discouraged, but promoted as an instrument of international solidarity, to be used in extreme cases where it is impossible to find a suitable placement for children in their country and culture of birth. A number of conclusions can be drawn from the above: 1. before intercountry adoption is considered, due care should be taken to check whether the problem of the abandonment of children in foreign countries cannot be solved by means of family policy measures or adoption at local level; 2. moves should be made to harmonize the relevant legislation at European level, starting with the ratification and full implementation of the international agreements in this area; 3. private arrangements should be avoided and provision should be made for compulsory intermediation by agencies or organizations under public control; 4. such agencies or organizations must be non-profit-making and prospective adopters should only be required to reimburse expenditure on the basis of a fixed, uniform scale; 5. particular attention should be paid to adequately preparing couples wishing to take part in intercountry adoption, and their suitability should be assessed on the basis of special criteria; they should continue to be helped and followed up even after they have taken the child into their care; 6. EU development cooperation policy should make provision for projects to assist children and to provide support and guarantees for intercountry adoptions; the intermediation bodies should also provide assistance to families and children in foreign countries, irrespective of whether there is any intention to adopt; 7. the national and Community authorities should make provision for and regulation the accompaniment of couples travelling abroad, with a view to making procedures clearer and more transparent. Lastly, we must ask ourselves whether the reduction in the number of children available for adoption within the Union really does derive from a greater sense of responsibility and fewer abandonments. The traditional method - that of leaving newborn babies in a public place, at serious risk to their lives - still continues to be used. This situation is totally inadmissible in a modern society in which such a large number of families are willing to adopt. A law enabling mothers not to recognize their children at birth (subject to reconsideration within a given time limit) should be introduced and made known to the public. Other quick and effective measures could also be introduced, such as special emergency telephone help-lines enabling mothers not wishing to divulge the fact that they are pregnant or to keep the baby to receive advice and be offered alternatives to killing the baby or abandoning it in a public place. It is, of course, difficult to understand how, in a modern society, a mother might not wish it to be known that she had had a child, but it does happen, however rarely, and a human response must be found to such situations. In order to be consistent, such a response must also take account of abortion which, to varying degrees and in varying ways, is widely practised and legal in most EU Member States. The controversies and sometimes violent divisions to which abortion legislation gives rise must not be allowed to distract our attention from a commonly-held belief which, in some cases, is enshrined in national law, namely that abortion, subject to the relevant time limits, must be seen as a last resort, only when all other possibilities of providing appropriate care for the unborn baby have been exhausted. Adoption is without doubt a possible alternative. There is no question of declaring an unborn baby eligible for adoption, since that would undermine the responsibility of the mother and her right to choose to keep her child, but a concept of adoption as being a possible alternative to abortion should be promoted through the schools and the media. Furthermore, given the low success rate of in vitro insemination techniques, their invasiveness for women, the serious ethical issues to which they give rise, with particular regard to the inevitable waste and selection of human embryos, and the high economic costs involved, more detailed consideration should be given to the possibility of adoption, which should be further promoted and whose underlying principles should serve as a basis for legislation on the new phenomenon of artificial procreation. II. LEGAL ASPECTS OF ADOPTION In view of the legal uncertainties which unfortunately hang over many aspects of international adoption procedures, we shall first examine the existing legal provisions on the protection of children, particularly by their families and the public authorities, and then consider the basic principles governing intercountry adoption. Lastly, we shall look at the question from a Community perspective, with particular regard to the prospects for the adoption of joint actions under the provisions of Title VI of the Treaty on European Union. (A) Legal provisions on the protection of children The European Parliament, which is anxious that children living outside their country of origin should receive special attention on account of the vulnerability of their position, must help to ensure that intercountry adoption is given full legal validity. All children who are citizens of the European Union must enjoy all the rights enshrined in the Treaty on European Union in accordance with the rules laid down by national law and the principles of Community law. Irrespective of their country of origin, all the dependent children of nationals of a Member State must enjoy all the benefits to which their families are entitled under Community law. Children from a third country whose parents are legally resident in an EU Member State must enjoy the same rights as children who are European citizens, and the same treatment as nationals of the Member State in which they reside. No child within EU territory may be subjected to discrimination on the grounds of its nationality, filiation, ethnic background, colour, gender, language, social class, religious beliefs or state of health, or those of its parents. Given that some people are now ready to 'pay any price' to adopt a child, the international community, and the European Union in particular, have a duty take appropriate steps to place adoption on a sound moral footing. The Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption, which was adopted by 67 countries on 29 May 1993 following fourteen years of negotiations, constitutes a major step towards this goal. The Convention, which is in the process of being ratified - to date, among the EU Member States, only Spain has ratified it - complements, but does not replace, the bilateral legal instruments already signed by EU Member States (pursuant to the Treaty, the subsidiarity principle applies to such matters). The Hague Convention on adoption is a far-reaching multilateral legal instrument ensuring a high level of protection for children. In order to be fully effective, it is important that it be ratified by as many countries as possible with a view to protecting the greatest possible number of children around the world. A universal legal instrument of this kind may be an appropriate response to the 'globalization' of adoption, superseding the regional instruments designed to cater for countries with close geographical and cultural links (e.g. the European Convention of 24 April 1967 or the La Paz Inter-American Convention of 29 May 1984). The Hague Convention is an extremely comprehensive agreement, covering all adoptions involving the moving from on contracting state to another of children under the age of 18 (Article 2). It covers all forms of adoption which create a permanent parent-child relationship (the 'leafala' provided for in Islamic law is therefore excluded). The main purpose of the Convention, which does not seek to unify private international law on adoption, is to promote cooperation. It is first and foremost a pragmatic cooperation agreement which seeks to promote cooperation between authorities with a view to the harmonization of procedures and the resolution of conflicts between laws. It does not cover adoption decisions themselves, but concentrates on the pre-adoption and post-adoption stages. The traffic in children and legal uncertainty represent the greatest threats to the best interests of the child. With a view to providing adoptive children with a secure and sufficiently consistent legal status, attention must therefore be focused on the stage at which there is the greatest risk of trafficking. The relevant factors are the legal position of a child once it has been abandoned, the process leading to its placement in an institution or with its prospective adoptive parents, and the international validity of the adoption decision. (B) Basic principles governing intercountry adoption The concept of intercountry adoption is founded on four basic principles deriving from the United Nations Convention on the Rights of the Child of 20 November 1989. The principle of the best interests of the child must be given international recognition and the continual reassertion of this principle is designed to establish the fact that priority must be given to determining and protecting the child's interests; the purpose of adoption is to provide a child with a family, and not a family with a child. The subsidiarity principle was asserted for the first time in Article 21(b) of the UN Convention. It is also to be found in the Treaty on European Union. Intercountry adoption must only be considered if no alternative solution is available at national level, namely the possibility of the child being placed in an 'appropriate' family in its country of origin. The Hague Convention formally enshrines this principle and stipulates that the authorities of the state of origin have exclusive responsibility for ensuring compliance, given that they are in the best position to do so. The provision that prospective adoptive parents must go through accredited intermediaries provides an international guarantee for adoptions. The whole philosophy of intercountry adoption is based on the requirement that persons wishing to adopt a child from abroad must go through accredited and clearly identified intermediaries. Private adoption arrangements are categorically excluded. Under Article 14 of the Hague Convention stipulates that prospective adoptive parents 'shall apply to the Central Authority in the State of their habitual residence'. This is an extremely important principle. The authors of the Convention are to be commended for this approach, since it goes some way towards placing intercountry adoption on a sound moral footing. The same reasoning was behind the provision that there shall be no direct contact between the prospective adoptive parents and the child and its biological parents or their representatives until the necessary consent has been given. (C) Adoption within the context of cooperation in the fields of justice and home affairs It should first be noted that adoption itself comes within the exclusive responsibilities of the Member States. However, the various national legal systems differ in some respects; freedom of movement for children may be hampered as a result. Lastly, we have already clearly established the risk of trafficking to which adoption procedures are exposed. Many other similar points could be made. Over the past few years, there has been a growing awareness of the need for cooperation at European and international level, particularly in civil and criminal matters. The new awareness is reflected in the Council's recent deliberations on matters coming under Title VI of the Treaty on European Union. At its meeting of 25 and 26 September 1995 the Justice and Home Affairs Council decided to include child custody in the scope of the Convention on jurisdiction and the enforcement of judgments in matrimonial matters (1). At the same meeting, it adopted conclusions on terrorism and other forms of serious crime, recommending that police cooperation in exchanging information be stepped up and that national legislation be harmonized with a view to attaining this objective. In the Spanish Presidency's conclusions, the Madrid European Council of 15 and 16 December 1995 expressed the wish that judicial cooperation should focus in particular on mutual judicial assistance in criminal matters and on the extension of the Brussels Convention and document transmission in civil matters. On 27 September 1996, the Presidency of the Telecommunications Council stated that concrete proposals should be made with a view to protecting minors against the illegal use of the Internet. The above initiatives reflect an awareness of the need to take appropriate steps at European level both to prevent and combat crime against minors and to step up judicial cooperation (on criminal and civil matters). In the field of intercountry adoption, steps must be taken to prevent and combat the abduction, sale of or traffic in children and to ensure that such adoptions are made in the best interests of the child and with respect for its fundamental rights. In this connection, the Treaty on European Union stipulates that the following areas shall be regarded as 'matters of common interest': - judicial cooperation in civil matters; - judicial cooperation in criminal matters; and - police cooperation for the purposes of preventing and combating certain forms of international crime (see Article K.1(6), (7) and (9)). With a view to the above, the Treaty provides, inter alia, for the adoption of 'joint action in so far as the objectives of the Union can be attained better by joint action than by the Member States acting individually on account of the scale or effects of the action envisaged' (Article K.3(2)(b)). We shall now examine the two aspects of judicial cooperation. (1) Judicial cooperation on criminal matters Although the only figures available are estimates, certain forms of adoption are illegal. They are therefore equivalent to trafficking in children, and should be combated with the greatest determination. The Union should therefore take steps as part of its policy on criminal matters to eradicate international practices of this kind, which are harmful to children. This is all the more necessary in view of the fact that the definition of a criminal offence may vary from Member State to Member State. Furthermore, in the case of networks located outside the EU, the perpetrator of an offence may be outside the reach of the judicial authorities of the Member State in which that offence took place. Given that criminal law can only be enforced within national borders, which means that criminal activities connected with the abduction of and traffic in children are likely to escape punishment, it is therefore essential for the laws of the Member States to provide for similar penalties for this type of crime and for cooperation between Member States in criminal and police matters to be stepped up and also established with those third countries which are the countries of origin of the majority of children available for intercountry adoption. In this connection, the Justice and Home Affairs Ministers meeting in Dublin on 26 and 27 September 1996 adopted a political agreement seeking to strengthen police cooperation within Europol in combating paedophilia and the traffic in children and women. The Council must now complete the work in progress in this area, in particular by: - adopting at the earliest opportunity a joint action pursuant to Article K.3(2)(b) of the TEU, with a view to taking tough action to combat the traffic in children, not only in connection with the most serious forms of sexual exploitation, but also in connection with the adoption of children in other countries; such trafficking should, furthermore, be classified as an offence subject to the provisions of the criminal law of all Member States; each Member States should provide for the criminal or civil liability of any moral persons involved, without prejudice to the liability of the natural persons also involved, and for the provisions of Directive 91/398 of 10 June 1991 on money laundering to be applied against such persons; each Member State should set up a specific administrative body at national and/or regional level with responsibility for combating the traffic in children and cooperating closely with the relevant national police, immigration and social security authorities and with the other accredited bodies set up in the other Member States; the latter must notify the others of all cases involving the disappearance of children which have been brought to their notice; - adopting at the earliest opportunity a joint action pursuant to Article K.3(2)(b), making provision for a programme to promote coordinated initiatives to combat the traffic in children and the disappearance of minors; such a programme should be modelled on the 'Grotius' programme and should cover, inter alia, training, exchanges, courses and the exchange of information and should be aimed at judges, public prosecutors, police departments, civil servants, public services with responsibility for immigration and border controls and social and tax legislation, and private or public bodies with responsibility for children; - adopting a joint action pursuant to Article K.3(2)(b), making provision for the extension of the remit of the Europol Drugs Unit to cover cases involving the abduction of or traffic in children. The European Parliament should be consulted on such joint actions and its views should be 'duly taken into consideration' in accordance with Article K.6, paragraph 2, of the TEU. These joint actions should, of course, be accompanied by a strengthening of international cooperation with the third countries from which the children come. In this connection, Parliament should urge the appropriate political authorities to ensure that the Member States sign and ratify the Hague Convention of 29 May 1993 in particular. (2) Judicial cooperation on civil matters Judicial cooperation on civil matters should, without prejudice to the rules established by the Member States, facilitate the exercise of individual rights by means of more effective cooperation in adoption matters. This could involve the transmission and recognition of judicial and extrajudicial documents and the promotion of systematic exchanges of information between the administrative authorities responsible for family and adoption matters. The main aim is to facilitate the approximation of laws and practices, with a view to removing unjustified legal and judicial barriers in the fields of civil law, civil procedures, and administrative practices. Such barriers all too often preclude equal access to the courts and administrative authorities. Support should therefore be shown for the following initiatives which the Council intends to take over the next two years: - draft convention on the transmission of judicial and extrajudicial documents concerning civil and commercial matters; - draft 'Brussels II' Convention (matrimonial matters and child custody); - implementation of a joint action concerning liaison magistrates and consideration of the feasibility of establishing a network of contact magistrates. It is to be hoped that the Council will complete its work on such matters at the earliest opportunity. Furthermore, the Member States should focus their attention on the following questions: - the transparency of adoption procedures; - speeding up adoption procedures; - equivalence/recognition of administrative and judicial decisions; - the establishment of a directory of experts (networks of experts to draw up a code of conduct applicable to adoptions).  | (1) | () This convention - which has yet to be adopted - seeks to extend the concept of the Brussels Convention on Jurisdiction and the Enforcement of Judgments to matrimonial matters. | | | 
At the sitting of 15 February 1995 the President of Parliament announced that he had referred the motion for a resolution on improving the adoption laws, tabled pursuant to Rule 45 of the Rules of Procedure by Mrs Colli Comelli and Mr Danesin, on behalf of the Forza Europa Group, to the Committee on Legal Affairs and Citizens' Rights as the committee responsible.
