Claude Cahn (UN Human Rights Adviser)
15 March 2012 - Plans are underway for the second
revision to Moldova’s rules on adoption in less than two years. The current
legal framework – an improvement on the previous one – nevertheless has a number
of problematic elements, so the changes will be timely and important. There is
not yet a vibrant public discussion about how the current rules should change.
There should be: this area of law has important implications for questions of
social inclusion and fundamental human rights, questions which are not yet the
subject of sufficient public attention.
Rules on adoption are informed by a number of areas of international
law. First and foremost is the Convention on the Rights of the Child, with its
core, guiding principle that the best interests of the child are primary. The
Convention, adopted in 1989, considerably elaborates the original child
protection provisions set out under international law in the International
Covenant on Economic, Social and Cultural Rights. In recent years, a global
consensus – expressed in the adoption in 2006 of the Convention on the Rights of
Persons with Disability – has invigorated a commitment to end stigma on – and
discrimination against – persons with disabilities, including children.
Finally, concerns about the exploitation of children in international adoption
led to The Hague Convention on the Protection of Children and Co-operation in
Respect of Inter-Country Adoption, which entered into force in 2008.
Perspectives on problems in Moldovan adoption vary. Inter-country
adoption is potentially a window for corruption. Estimates of “informal”
payments – i.e. those not linked to Hague Convention procedures – tend to run
into a number of thousands of USD per adoption, largely as informal “gifts”.
Following the legal changes of 2010, which imposed a bar on inter-country
adoption for two years, unless the child was certified as having a problematic
health condition, opened new opportunities for graft by embedding an incentive
for doctors to certify children as unhealthy.
The corruption element however is overshadowed by a deeper – and
ultimately very troubling one – hinted at above: the role of perceptions of
health, disease and disability weighing on the system. A first issue – taken
as given by many of the policy-makers involved in designing the rules – is that
Moldovans do not adopt children with disabilities or health conditions. A
general presumption of the discussion is that “for the next fifty years,
Moldovans will never accept adopting children with disabilities”. This view
has, in the very recent past, been embedded in law in the most perverse possible
fashion: until 2010, children with disabilities were barred by Moldovan law
from being adopted.
For reasons ultimately mysterious to many involved in the system in
Moldova, Americans and Italians (the two largest categories of people involved
in inter-country adoption in Moldova) are apparently willing to adopt children
with disabilities. From this fact follows a key assumption guiding the current
revision of the law, the logic of which appears to be approximately the
following: “If Moldovans will not adopt children with disabilities, but crazy
foreigners will, then the key to the reform should be to facilitate the
possibility for foreigners to adopt children with disabilities and other
‘unhealthy children’ (so they at least can have some sort of positive life
elsewhere). At the same time (the same theory continues), Moldovans will be
outbid by foreigners in the bribery competition for ‘healthy children’, so
protective measures should be included in the law to make sure that Moldovans
get first pick of ‘healthy children’”. Hence the new proposal: children may
be eligible for inter-country adoption after only one year (as compared to the
current two years), but “special needs” children – including children with
disabilities, older children, and others -- may be released for inter-country
adoption within six months.
This discussion – together with its troubling presumptions -- now
threatens to go to Parliament, as well as to be broadcast into the public
space. It is a discussion which can degrade the already troubling treatment
of persons with disabilities, who occupy a stigmatized and pariah category, in
many cases fully excluded from mainstream Moldovan society. Its underlying
message invigorates a vision of children with special needs as, in the final
analysis, at best meriting pity, and in no case enjoying equal dignity.
Moldovan lawmakers have done a good job of improving the legal regime
surrounding adoption in recent years. The ambition of the current rules is Hague
Convention compliance, and Moldova has moved steadily in that direction, in
particular by setting out rules to combat the real dangers of exploitation of
children in inter-country adoption. At the same time, the lawmaker has removed
Soviet-era bans on the adoption of children with disabilities, and the new
proposals would further remove a number of medical and psychological
contraindications to adoption which should have no place in law in a democratic
society. Further work can still be done for example to improve recognition of
documents from other Hague Convention states parties, and to reduce arbitrary
steps unrelated to the best interests of the child.
These improvements should not be purchased, however, at the price of
amplifying the stigma on disability and disease currently so prevalent.
Moldova is owed a serious discussion on the rights of all children to be raised
in a loving family environment. Above all, this discussion should be aimed at
significantly reducing the stigma on persons with disabilities, and with it to
encourage local, in-country adoption of all kinds of children. It should also
be coupled with public recognition that inter-country adoption is a better
option than long periods in institutional care, provided that all safeguards are
in place to ensure the best interests of the child in an inter-country
context.
The task at hand in the current legal reform is therefore at least
two-fold: (1) improve law and procedures to better secure the best interests of
the child in the context of national and inter-country adoption; (2) advance
public discussion to reduce the stigma on persons with disabilities. All have
an interest in ensuring that children can benefit from being raised in a loving
family environment, wherever possible.
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