The baby market Type of document: News Topic: Normative and institutional framework Geographic descriptors: Kenya Language: English Source: www.eastandard.net/hm_news/news_is.php?articleid=1143952188 Date of publication: 08 May 2006 Long Abstract: The baby market Has adoption changed since its liberalisation? Dauti Kahura looks at what changes in law, five years ago, have meant for orphaned children in Kenya Five years after the Children’s Act was made into law in 2001, there has been a proliferation of unprecedented adoption services not witnessed in the country before. The Child Welfare Society of Kenya (CWSK), the oldest adoption organisation in the country, had been providing adoption services for the last 50 years, till 2001, when adoption services were liberalised by Cap 256 of the Act. The executive director of CWSK, Ms Irene Mureithi says the Act enabled many more organisations to handle adoption and they are seeking licences for the service. "Since then adoption has become a buzzword in non-governmental Organisations (NGOs) dealing with children," adds Mureithi. "Before the Children’s Act, CWSK was the only adoption society. Now we have 3,000 others trying to get registered." In Nairobi alone, there are more than 2,000 adoption homes. Because of the decentralisation of adoption services, a kind of commercialisation of adoption services has spurned unwittingly, she says. "Today, most of the children being adopted off are presumed ‘abandoned’, even though they actually maybe just lost children", says Mureithi. Inevitably, children’s homes have sprung all over the country that today only specialise in only "abandoned" children. "Unfortunately", states Ms Mureithi, "there are no efforts made to trace the parents of the so-called abandoned children." Thus even abducted children are termed abandoned, "and because of the way the law is framed, it tends to give tacit approval of children who could have been abandoned, abducted or even kidnapped" for easy adoption. Although CWSK does not have statistics to show how the adoptions trends have been taking shape since the enactment of the Children’s Act, the organisation believes that more than ever before children’s homes now go ahead to place children for adoption without following the proper procedure. They do so without the required documents such as a police letter showing that the police have been unable to trace the parents of the child in case of abandoned/lost children," says Ms Mureithi. The Director surmises that some Kenyan parents have also been tricked to give up their children for adoption to foreigners either living locally or abroad through material inducement. The Director argues that her international experience for example is that some unscrupulous foreign pharmaceutical companies allegedly send people to other countries to go and adopt children who are used as guinea pigs for testing drugs. "These conduits find their way to developing countries and sponsor Children’s homes so that it becomes easier to access these children," states Mureithi. She also observes that in the world of international paedophiles roaming countries with porous borders, such people could end up getting into contact with children in the numerous children’s homes. Mureithi’s argument has been that, no home should be allowed to let its sponsors adopt its children. "There have been cases where people running children’s homes adopt some of the very children in the same homes and leave the country with those children in questionable circumstances," she says. It is a fact today that human beings are trafficked for purposes of organ harvest, sexual exploitation, labour, and for using as guinea pigs in the race for HIV vaccine and other diseases. "We must guard our children from falling into the wrong hands who would end misusing them," says Ms Mureithi. Adoption is the process of placing a child in need of a family with a family in need of a child. It is both a legal and social process that provides a child with new legal parents. It also involves both the applicants and the children to be adopted. It severs the bond between a child and its natural parents and establishes a new permanent one with the adoptive parents. Adoption provides a lasting solution to a child without a family and is a better alternative to institutional care. The adoption arrangements should be guided by the best interest of the child and with respect to his or her fundamental rights. "People that qualify to adopt must be 25 years and over and are at least 21 years older than the child to be adopted, or are relatives of the child or are either the mother or father of the child," says CWSK Programme Officer Alphaxard Chabari. A court cannot make an adoption order in favour of the following persons (unless it is satisfied that the order merits special favour): a sole male applicant in respect of a female child; a sole female applicant in respect of a male child; an applicant or joint applicants who have attained the age of 65 years; and a sole foreign applicant. Yet there are those who do not qualify absolutely. They include: an applicant who is of unsound mind as per the definition of the Mental Health Act; an applicant who has been charged or convicted by a court of law, for any of the offences under the Penal Code, the Children’s Act and any other offences involving bodily injury; or a homosexual. Children who may be adopted include, any child who is resident in Kenya whether the child is a Kenyan citizen or was or was not born in Kenya provided that the child remains in the continuous care and control of the applicant within the country for three consecutive months preceding the filing of the application in court. Both the applicants have to be evaluated by an adoption society. Children who are adopted could have been abandoned or offered for adoption. Children are offered when the mother/parents who desire to have unborn babies adopted place them with CWSK for adoption. This process involves: 1. Interviewing the parent to get further information about their background. 2. An explanation to the mother of what the adoption process entails. 3. A counselling programme is tailored with the aim of exploring all the possibilities of the mother keeping the child. 4. After delivery, and if the mother still wishes to continue with offering the child for adoption, she is allowed six weeks to go and think about the whole issue and it is only after the six weeks that she is supposed to finally sign consent that the child can be adopted by another family. 5. If the mother happens to change her mind, she is encouraged to make arrangements for the care of the baby and then collect the baby. She signs a consent, which is then used as evidence in court that she wilfully surrendered the baby. A registrar of the high court, magistrate or advocate witnesses this consent. 6. The mother is encouraged to come and visit the social worker if she requires further counselling and can also be referred for further help. "Over 40 per cent of parents wishing to give away children for adoption actually reconsider their stance," notes the Programme Officer. In cases of abandoned children, the Programme officer says they should be reported to the police soonest possible." After 14 days, they are then referred to an institution which arranges for a care and protection order," says Chabari. The infant remains in the care of the institution for six months. If the police confirm in writing that the infant has remained unclaimed and its parents cannot be traced and the children’s department also confirms the same and recommend adoption. "CWSK then begins arrangements for fostering or adoption." People adopt children for various reasons the major one being the fact that they are unable to sire their own children. CWSK alone handles about 300-500 cases of adoption every year. "About 80 per cent of the people who want to adopt children from CWSK say they cannot have their own children," says Mureithi. "In the Africa culture, impotency and infertility were not celebrated virtues they are still not," notes Chabari. "That’s why, many of the people who adopt babies of between six weeks and 18 months will not openly discuss why they are adopting. Not being able to have your children is still considered to be a cultural taboo." The other set of people who adopt children are old (wealthy) couples whose children have gone their own way and have a need to fill their lonely void in their house. "This type of adopters will adopt any children as long as he or she is under 18 years." Another group of people who adopt children are Good Samaritans, who often time are the well-to-do senior citizens "whose consciousness tell them they must give back to society". International/inter country and interracial adoption was illegal in Kenya until the coming to force of the new Children’s Act (Cap 256) in 2001. (There was a major scandal involving children being adopted by couples in Germany shortly before this.) According to CWSK, the government should supervise all charitable organisations dealing with children. "The government’s role should be in ensuring standards by training and supervising the adoption officers from the NGOs," says Chabari. The children’s society argues that the country has seen a surge of inter-country adoptions in the last three to five years years. "Can the government for instance, account for the number of children who have been adopted by foreigners since the enactment of the Children’s Act?" pose CWSK officials. They point out that the Kenyan law leaves it to the discretion of the judge to order for follow up reports of the progress of the child from the destination country. For all the cases handled in the last three years, for example, less than five cases have been ordered to submit follow up reports back to Kenya on the progress of the child. The society reckons that for the last five years or so, Kenya has been sending children to other countries for adoption without regulations. The adoption regulations just came up in September last year. The Chief Justice’s rules are not out yet. "Still, these regulations are very important as they are supposed to cover the gaps that can be used in child trafficking," she says. The advantage of clear laws, rules and regulation make trafficking impossible and inter-country adoption possible to people who are really interested in helping out a child. Since inter-country adoption was allowed in this country in 2001, lawyers have been laughing all the way to the bank. This is according to a Nairobi lawyer, who deals in the adoption services. "Some charge as much as Sh300,000 to process one case. Some literally act as middlemen who bring adoptive parents from outside the country, introduce them to the children, represent them in court and process birth certificates for the children", said the lawyer who could not give his name for fear of a backlash from his colleagues and children’s homes that have turned adoption into a lucrative business. "Some have even started children’s homes or are in the management boards of homes that they facilitate adoptions from," she says. CWSK official concur with the lawyer and even point out that this state of affairs is known in the governmental circles. A recent report on adoption by United Nations Convention on the Rights of the Children (UNCRC), points out that instead of formal adoptions, informal foster care often takes place around the extended family system in Kenya, where relatives take care of cousins, nephews, nieces among others, for varying periods of time. The UN Committee expressed its concern that informal adoptions are more accepted and practiced than formal, and recommended the Kenyan government to strengthen the administrative procedures for formal domestic adoptions in order to prevent misuse of informal and private adoptions. Considering the increasing number of children without sufficient family support, the Committee also encouraged Kenya to establish an effective foster care programme and to ratify the 1993 Hague Convention on the Protection of Children and Cooperation in Respect of Inter-country Adoption. Kenya has yet to ratify the Hague Convention on Inter-country Adoptions. Although the Hague Convention legitimises inter-country adoption as a means of providing a permanent family to a child "for whom a suitable family cannot be found in his or her state of origin," considerable debate about the role of inter-country adoption remains. Opponents of inter-country adoption argue that the practice exploits impoverished nations; robs children of the opportunity to be raised in their community of origin and identity; takes away resources that could be used to improve the lives of a larger number of children; and contributes to the problem of abduction, coercion and trafficking of children. Alternatively, supporters of inter-country adoption counter that the practice benefits children by removing them from the detrimental effects of growing up in institutional settings or on the streets by providing permanent families, helps children who might otherwise be marginalised in their societies as a result of illegitimacy or racial or ethnic difference; and provides them with families in a context where there is little evidence that the elimination or restriction of inter-country adoptions would remove the problems of poverty that contribute to the abandonment of children. The Hague Convention was created to address a large number of abuses that had come to light in the 1980s, by establishing a legal framework for the arrangement and formalisation of inter-country adoptions The Hague Convention deviates from the UN Declaration and CRC in that it sets out in the preamble a "hierarchy of options" believed to safeguard the long-term "best interests" of the child. These include preference for family solutions (return to birth family, foster care, adoption) rather than institutional placement, permanent solutions (return to birth family, adoption) rather than provisional ones (institutional placement, foster care), and national solutions (return to birth family, national adoption) rather than international ones. However, the Hague Convention only applies to countries that have ratified it and thereby are parties to it. As of 2004, only 46 countries had ratified the Hague Convention.
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