In recognition of Adoption Month, we interviewed two scholars, Peter Hayes and Ingi Iusmen, about intercountry adoption (ICA) to raise awareness of some of the complexities presented by intercountry adoption. Today, we present a brief Q&A with Peter Hayes, Senior Lecturer in Politics at the University of Sunderland and author of “The legality and ethics of independent intercountry adoption under the Hague Convention” in International Journal of Law, Policy and the Family.
Where is independent, intercountry adoption (ICA) legal?
An independent ICA can be interpreted to mean a private adoption that has not been scrutinised and endorsed by either the sending or receiving state. This will almost certainly be illegal. However, more usually an independent ICA means one where an initial match is made without the involvement of official state agencies, although the state authorities in either the sending or receiving state do decide whether or not to authorise the match. This form of independent ICA is much more likely to be legal.
When state adoption authorities were asked about the legality of independent ICA in 2010, their responses were more or less equally divided between states that said that it was not permitted (e.g. China) and states which said that it was (e.g. France). It was not always clear, however, which definition of independent ICA was being used. The United Kingdom ducked the question by replying ‘not applicable’. In fact, ICAs in which the initial match was made by non-state actors have been authorised by the British courts so independent ICA is legal in the United Kingdom.
The 1993 Hague Convention on Intercountry Adoption provides a framework for arranging ICA, and independent ICA, in the sense of independent preliminary matching, is permitted under the Convention at the discretion of each state. When the Convention was drawn up there were mixed views on whether to sanction independent ICA. However, a majority of state representatives were in favour of allowing for it; the United States in particular made it clear that it would only sign up to a treaty that permitted independent ICAs. After the United States implemented the Convention in 2008 the arguments against independent ICA were reinvigorated by the Permanent Bureau’s Guide to Good Practice, which claimed incorrectly that independent ICA was inconsistent with the 1993 Convention. This misleading guidance has become the source of continuing confusion over the legality of independent ICA.