Committee on Enforced Disappearances

Joint statement on illegal intercountry adoption *

I.Introduction

1.The Committee on Enforced Disappearances, the Committee on the Rights of the Child, the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, the Special Rapporteur on the sale and sexual exploitation of children, including child prostitution, child pornography and other child sexual abuse material, the Special Rapporteur on trafficking in persons, especially women and children, and the Working Group on Enforced or Involuntary Disappearances have decided to issue the present joint statement, in order to promote a human rights-based and gender-sensitive approach to preventing and eradicating illegal intercountry adoptions – sometimes referred to as illegal international adoptions – by identifying the rights that are violated through such adoptions and clarifying States’ obligations in this respect under international human rights law. Following agreement among all of the mechanisms involved, the present document is being published on their behalf by the Committee on Enforced Disappearances.

Phenomenon and modalities of illegal adoption

2.Having devastating consequences on the lives and rights of victims, illegal adoptions are carried out through the commission of a wide variety of illegal acts or illicit practices, such as abduction and sale of and trafficking in children, enforced disappearance and wrongful removal of children in the context of enforced disappearance, fraud in the declaration of adoptability, and falsification of official documents or coercion, and also include adoptions characterized by a lack of proper consent by biological parents, improper financial gain by intermediaries and related corruption. These acts and practices “reflect deficiencies in child protection systems which are exploited by criminal networks, often with the involvement of State officials or as the result of permissive State policies”. Gender discrimination and violence based on moral and religious constructs regarding the social or marital status of the mother have been key drivers of illegal adoption in several countries, and discrimination against minorities and Indigenous Peoples has led to other illegal adoptions. In the light of recent developments in a number of receiving States and in order to provide useful guidance for States, victims and other stakeholders, the joint statement is focused on the intercountry dimension of illegal adoption. Nevertheless, several considerations and recommendations included herein would also apply to illegal domestic adoptions.

Violations of human rights

3.When illegal intercountry adoptions occur, various human rights are violated, including the right of all children to have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, such measures of protection as are required by their status as a minor, on the part of their family, society and the State and the right of the family to protection. The family plays a fundamental role in a child’s development and identity. Children therefore have the right, as far as possible, to know their parents and to be cared for by them and the right not to be separated from their parents against the parents’ will, except when this is necessary to ensure a child’s best interests. Illegal intercountry adoptions infringe the right of children to preserve their identity, including elements such as their name, their nationality and their family relations. Children who are illegally deprived of their identity have a right to have that identity speedily re-established. There is a strong nexus between the right to protection of privacy and family life and the right to identity.

Crimes

4.Illegal intercountry adoptions may violate the prohibition of the abduction, the sale of, or the traffic of children, and, under specific circumstances, may also violate the prohibition of enforced disappearance. In certain conditions as provided for in international law, illegal intercountry adoptions may constitute serious crimes, such as genocide or crimes against humanity.

II.Obligation to prevent illegal intercountry adoption

Key principles in prevention

5.States have a duty to prevent illegal intercountry adoption by promulgating and implementing laws, policies and other measures that may be necessary concerning the adoption process. Four key principles shall govern intercountry adoption. First, the best interests of the child shall be the paramount consideration in all adoption cases. Second, intercountry adoption shall respect the principle of subsidiarity, which entails that “all appropriate national alternative care solutions shall be considered in the child’s country of origin before resorting to intercountry adoption”. Third, the prohibition of improper financial or other gains requires that only the reasonable costs and expenses of adoptions may be charged or paid. Fourth, intercountry adoptions can only be authorized by competent authorities who determine that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if necessary, the persons concerned have given their informed consent to the adoption on the basis of appropriate counselling. The aforementioned principles are breached “when the purpose of an adoption is to find a child for adoptive parents rather than a family for the child”.

Respecting children’s views

6.Any decisions taken in the context of intercountry adoptions shall be guided and informed by the four above-mentioned principles and shall guarantee the rights of the child, as well as the rights of biological families and prospective adoptive parent(s). States shall, in particular, enable children to express their views and ensure that these views are given due weight, in accordance with their age and maturity, in all judicial and administrative proceedings concerning an intercountry adoption decision. In this regard, States should develop standard operating procedures and provide training to judges, lawyers and social workers.

Process of adoption

7.States shall establish and implement a single process for adoption that includes a holistic assessment of the child’s full range of rights, and adopt adequate regulation on procedures and safeguards, including in relation to the determination of adoptability. In particular, States shall prohibit private and independent adoptions and ensure that intercountry adoptions are carried out only through accredited agencies. States shall establish transparent, effective, appropriate and well-resourced mechanisms for overseeing and monitoring intercountry adoption processes, especially with respect to strictly verifying the background and documents of children declared to be orphans. States shall also establish and implement standardized information systems to obtain and share accurate and reliable data on intercountry adoptions, including on children subject to adoption and on their family and background.

Improper financial gain and corruption

8.States shall take all appropriate measures to ensure that, in intercountry adoption, the placement does not result in improper financial gain for those involved. Official fees should be sufficient to cover costs and full details should be made available for public consultation, contributions and donations should be clearly separated from the adoption process, and the provision of development or humanitarian aid should not be linked to an authorization to carry out adoptions. Payments by agencies or prospective adopters to residential care facilities should be prohibited. Corruption at any stage of the adoption process shall be criminalized.

Elimination of incentives

9.States should prevent the creation of incentives for illicit practices that result in illegal intercountry adoption in countries of origin. In particular, annual quotas for adoptions by countries and/or agencies should be eliminated and applications should only be accepted if they were initiated for a child having been identified as requiring adoption.

National laws and practices

10.States of origin should review national laws and regulations, as well as policies and practices, to ensure that they do not contribute to the creation or maintenance of an enabling environment for illegal intercountry adoptions. States shall take all measures necessary to address the root causes of such practices. This can be done, inter alia, by strengthening and further investing in effective national child protection systems and by increasing support to vulnerable families, in particular single mothers in situations of economic hardship, from rural areas or belonging to Indigenous communities. Alternative childcare measures shall respect the principle of subsidiarity and ensure that the best interests of the child are the paramount consideration. States shall ensure birth registration for every child. Furthermore, States should provide effective protection for migrant, asylum-seeking, refugee and internally displaced children, for children with disabilities and for children victims of armed conflict and natural disasters, including climate-related disasters, who are at higher risk of being separated from their parents. In such circumstances States should consider placing moratoriums on intercountry adoption.

Data collection and statistics

11.States should take all steps necessary to generate accurate and up-to-date statistical information on illegal intercountry adoptions, including the dates of adoptions and the number of persons whose true identity has been re-established.

III.Obligation to criminalize and investigate illegal intercountry adoption

Criminalization

12.States shall prohibit illegal intercountry adoptions as a continuing offence under criminal law. They shall establish appropriate sanctions that reflect the gravity of this offence and guarantee a prompt and effective judicial remedy. In the case of illegal intercountry adoptions resulting from enforced disappearances, States shall consider as an aggravating factor that the person who disappeared was a child, taking into consideration that enforced disappearances or the wrongful removal of children in the context of enforced disappearance are an extreme form of violence against children. States shall ensure that statutes of limitations are not an obstacle for victims seeking access to judicial remedies, given the particular difficulties for child victims to make complaints, and the continuing nature of the offence.

Investigations

13.States shall take all measures necessary to ensure that all cases of illegal intercountry adoptions are investigated in a complete, impartial, diligent and effective manner, even in the absence of a formal complaint. Appropriate steps shall be taken, where necessary, to ensure that the complainant, witnesses, victims and their defence counsel, as well as other persons participating in the investigation, are protected against all ill-treatment or intimidation as a consequence of the complaint or any evidence given. States shall ensure that the authorities investigating illegal intercountry adoptions have access to all relevant documentation, archives and other information so that they are able to conduct the investigation effectively. States shall also provide the institutions involved in the investigation of illegal intercountry adoptions with adequate financial and technical resources and qualified staff to be able to perform their work promptly and effectively.

Mutual assistance

14.States shall afford one another the greatest measure of mutual assistance in connection with criminal proceedings brought in respect of an offence of illegal intercountry adoption, including the supply of all evidence at their disposal that is necessary to the proceeding, subject to the conditions provided for by domestic law or by applicable treaties.

IV.Obligation to remedy illegal intercountry adoption

Right to the truth, and search for abducted children

15.Victims of illegal intercountry adoptions have the right to know the truth. States shall ensure that all victims, including those adopted in the past, receive the assistance they need to know their origins. The State shall therefore play an active role in efforts to search for and locate missing children. For instance, States should create a DNA database that includes genetic samples for all cases of wrongful removal, enforced disappearance or falsification of identity that have been reported, with the specific purpose of re-establishing the identity of victims of illegal intercountry adoption. In implementing the right to the truth, States shall assist one another in searching for, identifying and locating victims of illegal intercountry adoption.

Procedures to annul adoptions

16.States shall provide redress to victims of illegal intercountry adoption by establishing specific procedures for reviewing and, where appropriate, annulling adoption, placement or guardianship that originated in an enforced disappearance or any illegal acts, and for swift action to re-establish the true identity of the adoptee concerned, taking into account the best interests of the child when applicable and without prejudice for the right to a nationality.

Right to reparation

17.Victims, namely those who suffered harm as a direct result of illegal intercountry adoption, have the right to reparation.Reparation shall incorporate a gender perspective and may include: restitution to the original situation of the victim before the illegal intercountry adoption occurred, where appropriate, and taking into account the best interests of the child; compensation for any economically assessable damage; rehabilitation, which should include medical and psychological care, legal and social services, counselling and facilitation; satisfaction, which should include, but is not limited to, full and public disclosure of the truth, public apology, commemorations and tributes to the victims; and guarantees of non-recurrence through legal, institutional and practical reforms.

Truth mechanisms

18.States should consider establishing, where appropriate, an independent commission of inquiry to establish the facts regarding allegations of illegal intercountry adoption, to determine the responsibilities of the parties, and to propose measures of adequate reparation for the victims.The objectives of such commissions are to assist victims in finding the truth about their origins and re-establish their true identity, to make a credible historical record, and to recommend the adoption of guarantees of non-repetition, and thereby prevent the recurrence of illegal intercountry adoption. States should ensure that such mechanisms incorporate a gender- and child-sensitive perspective.