China's Proposed International Adoption Law: The Likely Impact on Single U.S. Citizens Seeking to Adopt from China and the Available Alternatives
I begin by examining the specifics of China’s proposed international adoption law and China’s international adoption policies. Next, I briefly consider China’s role as a significant sender-country to the United States. Finally, I explore the likely impact of the Chinese tightening adoption standards on potential U.S. adoptive parents, looking specifically at the alternatives that the parents who will no longer be able to adopt from China can pursue.
Through the 1990s and 2000s, international adoption has been a major source of adoption for Chinese children. This, coupled with the stringent domestic requirements enacted in 1991, may have indicated a preference on the part of Chinese officials for international adoption over domestic adoption.[10] Since the early 1990s, however, China has lifted some of the restrictions on domestic adoptions. Accordingly, although precise numbers are not available, it is likely that domestic Chinese adoptions have increased.[11]
The preliminary version of the May 1, 2007 requirements for international adoption from China adds new requirements for international adoptive parents. Among other restrictions and stipulations, the new requirements prohibit single individuals from adopting:
Prospective adoptive parents must be married for at least two years (marriage is defined as being between a man and a woman). If either the husband or wife has been divorced (no more than two divorces), the prospective adoptive parents must be married for at least five years.[12]
The new requirements also focus on physical attributes—banning adoption by prospective parents whose body mass index is greater than 40, who take psychotic medicines for disorders like depression, mania, or anxiety-neurosis, and who are blind in one or both eyes.[13]
China explains the tightened international adoption policy by positing that there are fewer babies available for adoption from China because of increased domestic adoption and a loosened “one-child” policy.[14] Yet, the increase in domestic adoptions has unlikely been significant enough to provide homes for the large numbers of Chinese children in orphanages. If there actually are fewer babies available for adoption, the decrease may be a result of troubling social practices (like gender-specific abortion) and not the end of the abandonment practices that previously filled the orphanages.[15] For example, even though gender-specific abortion is officially illegal in China, the country’s birth rate is very unbalanced: For every 100 girls, 120 boys are born.[16] In addition, it is estimated that China might be missing some 40 to 60 million women by 2012.[17]
The increased restrictions placed on international adoption may also stem from China’s concern over its international reputation.[18] The anticipation of the upcoming Chinese Olympic Games probably fuels this concern since the Olympics will bring worldwide media attention to China.[19] Beth Nonte Russell shares this concern:
I . . . wonder whether, as China increasingly asserts itself on the world stage and prepares to host the 2008 Summer Olympics, allowing Westerners to adopt thousands of infants each year [fits] the image it want[s] to project. I suspect not, and China’s new restrictions lead me to believe that national pride is more important than getting these children into loving homes.[20]
Such skepticism over China’s assertion that there simply is not an excess supply of children waiting in institutions for adoption is fueled by various accounts of steady levels of Chinese babies in orphanages.[21]
Those who would adopt have no rights. They must beg for the privilege of parenting, and do so in a state-administered realm that denies them both the right to privacy and the ‘civil rights’ that we have come to think of as fundamental in the rest of our communal life.[23]
The difficulties posed by such discrimination push some U.S. prospective adoptive parents to adopt abroad.
China has been a main source of foreign adoptive children for U.S. adoptive parents.[24] Between 1985 and 2006, 62,389 children were adopted to the United States from China.[25] One of the main reasons why China has been an attractive sender-country is the abundance of healthy baby girls abandoned to orphanages due to China’s one-child policy.[26] As a result of the large number of Chinese children adopted in the United States, a support community of adopted Chinese children and their adoptive families has developed. This community might make adoption from China more attractive to U.S. adoptive parents. These factors, coupled with the growing awareness of international adoption, have given China the preeminent position among source countries for U.S. adoption.
The centralization of adoption by the Chinese government through an agency called the China Center for Adoption Affairs (CCAA) has helped to organize, regulate, and foster international adoption from China. The creation of such a centralized body is one of the key recommendations of the Hague Convention to help protect children in sender-countries and to discourage corruption, baby buying, and kidnapping.[27] Indeed, the Chinese government’s tight grip on international adoption through the CCAA has kept adoption from China virtually corruption-free, whereas other nations grapple with a variety of problems that plague their adoption systems.[28] When adoption practices within a sender-country seem corrupt, receiving nations, like the Untied States, usually put a moratorium on adoption from these countries.[29]
Even though the CCAA helps to keep China’s international adoption corruption-free, it also is the source of the new Chinese international adoption regulations. Ironically, then, the organization creating stricter policies that will limit the ability of U.S. citizens to adopt in China is one of the reasons that China has been such an attractive sender-country in the past.
As I describe below, after the implementation of the new Chinese international adoption regulations, such groups (like homosexual individuals or couples eager to adopt) will have four main legal alternatives: (1) adopt children with medical problems and disabilities, (2) adopt children from other sender-countries, (3) pursue reproductive technology, and (4) eschew adoption altogether.[36]
(1) Prospective adopters from the United States might circumvent China’s new restrictions by adopting children with health problems, disabilities, or “minor birth defects that they think can be corrected in U.S. hospitals . . . .”[37] As the Chinese policies demonstrate, the requirements for prospective adoptive parents for children with health issues are usually lower. For example, waiting periods tend to be shorter for children with health problems or disabilities. An increase in such adoptions may help to ensure that these children find homes, but it is important to consider that these homes (and parents) may not be equipped to handle the complexities that come with children who have serious health issues or disabilities.
(2) More stringent international adoption policies in China might push U.S. citizens to adopt from alternative countries (like Russia or Vietnam) that have different adoption criteria. The accessibility of specific sender-countries in international adoption tends to ebb and flow depending on the global political climate and domestic issues.[38] Romania, for example, used to be a popular sender-country for international adoptions to the United States. Despite having many children in orphanages, Romania completely closed its borders to international adoption in 2001.[39]
(3) Another alternative for U.S. singles seeking children is reproductive technology. The components necessary for reproduction are available on the open market in the United States, and besides monetary factors, there are few restrictions on access to these resources. Thus, homosexual couples and single individuals who cannot adopt readily abroad might instead choose to “make” a child.[40] Unfortunately, an increase in reproductive technology means a decrease in people fighting to adopt existing children in need of homes around the world.
(4) Finally, U.S. singles might be deterred from adopting altogether when barred from adopting from China. This consequence would both prevent single would-be parents from experiencing parenthood and leave many children without the numerous benefits that a loving home could bring. Adults who want children and children who need parents would both exist—separate from each other and unable to form families.
With these disagreements in mind, the new requirements from China could be a positive development if there truly are fewer children in need of homes. The small number of children would be able to be matched with parents that China deems most fit. China’s assertion that there are drastically fewer babies available for adoption seems far-fetched, however, when considered in light of the incredible number of children that have previously filled China’s orphanages. An exact number of children still waiting for homes in China is unavailable.[45]
No matter how many Chinese children remain in orphanages, the number of international adoptions from China will surely decrease because of these new regulations. If China decides it only wants its children going to certain types of homes, then no one—not the United States, nor individual parents—can make China do otherwise. China’s new regulations will be yet another obstacle in the distinctively sensitive realm of adoption. Adoption is already a difficult, expensive, and emotionally complex process, and now a country with what is in all likelihood a vast number of children languishing in orphanages has made adoption less likely. It is entirely possible that in light of these challenges individuals seeking the parenting experience would forgo it.
Even more troubling than the impact these regulations will have on prospective parents is the impact tighter regulations might have on un-adopted children. If China has fewer children awaiting homes, and if the new regulations do not prohibit families from adopting children who need homes, then the children are concededly no worse-off. If, on the other hand, these regulations prohibit even one child from being adopted, then in my opinion they will have failed.
[1] See U.S. Dep’t of State, Requirements for Intercountry Adoption from the Republic of China to Take Effect on May 1, 2007 (Preliminary Version), http://travel.state.gov/family/adoption/intercountry/intercountry_3110.html (last visited Apr. 21, 2007) [hereinafter Chinese Proposal].
[2] In 2001, 80 percent of children adopted from China were adopted into the United States. See Kay Johnson, Politics of International and Domestic Adoption in China, 36 Law & Soc’y Rev. 379, 387 n.3 (2002).
[3] This category would include children with disabilities, children with aesthetic issues (e.g. large birthmarks), and children with health issues that the prospective parents might deem “fixable” in U.S. hospitals.
[4] The term “sender-countries” is used in the international adoption world to denote the birth-countries of children who are internationally adopted.
[5] The Chinese adoption authorities actively pursue finding families for special-needs children whereas there is a more rigorous application process for parents adopting non-special-needs children. For more specific guidelines on adopting children with special needs from China, see Gov.cn, The Measures of China Center of Adoption Affairs for Authorizing Foreign Adoption Organizations to Seek Adoptive Families for Children of Special Needs (Mar. 29, 2002), available at http://english.gov.cn/2005-09/27/content_70523.htm (last visited Apr. 25, 2007).
[6] See Gov.cn, Can Homosexuals Adopt Children From China? (Aug. 31, 2005), http://english.gov.cn/2005-08/31/content_27762.htm (last visited Apr. 25, 2007) (“In accordance with the principle that adoption shall not violate social ethics as set forth in the Adoption Law, foreign homosexuals are not allowed to adopt children in China.”) [hereinafter Can Homosexuals Adopt Children From China?].
[8] China does not officially have a residency requirement for adoptive parents, but an adoptive parent must be resident in China to “execute the required documents in person before the appropriate Chinese authorities.” It takes a minimum of two weeks for the paperwork to be completed in China. See http://travel.state.gov/family/adoption/country/country_365.html.
[9] See Johnson, supra note 2, at 389.
[10] See D. Marianne Blair, Safeguarding the Interests of Children in Intercountry Adoption: Assessing the Gatekeepers, 34 Cap. U.L. Rev. 349, 374 (2005).
[11] See Johnson, supra note 2, at 392-93. Unofficial domestic adoptions of children outside of the government-run orphanages are common. This complicates the count of Chinese domestic adoptions. The 1993 Hague Conference’s Convention on Protection of Children and Co-operation in Respect to Intercountry Adoption prioritizes domestic adoption over international adoption. This might have encouraged the switch from international-dominated to a more domestic-focused adoption scheme in China. See Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, May 29, 1993, S. Treaty Doc. No. 105-51 (1998), available at http://www.hcch.net/index_en.php?act=conventions.text&cid=69 [hereinafter Hague Convention].
[13] See id.
[14] See Geoffrey A. Fowler, China Weighs Rules Restricting Adoptions—People Who Are Single, Obese, Over 50 or Taking Psychiatric Medications Could Be Denied, Wall St. J., Dec. 20, 2006, at D1. “One-child” is the shorthand for China’s population control policies. Despite its name, the one-child policy does not limit families strictly to one child; rather, it provides financial incentives to have fewer children.
[15] See, e.g., Eric Baculiano, China Grapples with Legacy of Its “Missing Girls”: Disturbing Demographic Imbalance Spurs Drive to Change Age-Old Practices, MSNBC, Sept. 14, 2004 http://www.msnbc.msn.com/id/5953508.
[16] See id. Gender-specific abortion became possible and prevalent with the availability of the ultrasound B in rural areas. See Family Health International, China: The Effect of Family Planning on Women’s Lives, http://www.fhi.org/en/RH/Pubs/wsp/fctshts/China1.htm (last visited Apr. 21, 2007).
[17] See Baculiano, supra note 15.
[18] The website www.adoption.com includes a prominent disclaimer in its fact-sheet about Chinese adoption. The disclaimer reads, “PLEASE NOTE: Chinese authorities are extremely sensitive about the intrusion of foreign entities. Adoption is also a sensitive subject in China. It is therefore advisable for any person interested in adopting a child from China to act with discretion and decorum. High profile attention to adoption in China could curtail or eliminate altogether adoption of Chinese children by persons from countries that have caused adoption to become the subject of public attention.” Adoption.com, http://china.adoption.com/chinese/china-adoption-factsheet.html (last visited Apr. 21, 2007).
[19] The Chinese are conscience of their international reputation. See id. Consequently, it is possible that the new Chinese adoption policy is a self-conscious effort to improve China’s international stature.
[21] See id.
[22] Elizabeth Bartholet, Adoption and the Parental Screening System, in Family Bonds: Adoption, Infertility, and the New World of Child Production 72 (1999).
[24] Adoption.com, http://china.adoption.com (last visited April, 21, 2007) (“The China adoption program is one of the most reliable and stable, and China is the country from which most U.S. citizens have elected to adopt since the year 2000. In 2005, U.S. citizens adopted approximately 7,906 children from China. Children available for adoption are mostly girls, infants to 6 years of age. Older and special needs children are also available. These children reside in orphanages.”).
[25] See Families With Children From China, http://fwcc.org/statistics.html (last visited Apr. 21. 2007).
[26] See Pam Belluck & Jim Yardley, China Tightens Adoption Rules for Foreigners, N.Y. Times, Dec. 20, 2006, at A1. It is widely known that babies are the most popular adoption candidates to prospective parents.
[27] See Hague Convention. Opponents of the Hague Convention fear that the tightening of requirements for international adoption will keep children in sender-countries perpetually in poorly maintained orphanages or other sub-par institutions while prospective adoptive homes sit empty. Proponents of the Hague Convention feel it is necessary to centralize control over international adoption to protect the sender-nation’s children. Some major organizations, like UNICEF, are strong proponents of the Hague Convention. For a discussion on the Hague Convention and its likely impact on international adoption and children awaiting homes, see Elizabeth Bartholet, International Adoption: Thoughts on the Human Rights Issues, Buff. L. Rev. (forthcoming 2007).
[28] Guatemala is a prime example of a sender-country struggling with corrupt practices. Private individuals set up programs for fostering international adoption of Guatemalan babies. Many have been accused of purchasing babies from their mothers. “The Guatemala system all but invites adoption practitioners to abuse the birthparents.” Resource Center of the Americas, The Baby Trade, http://www.americas.org/item_278 (last visited Apr. 21, 2007).
[29] After accusations of corruption in international adoptions from Guatemala, the United States, Britain, and Canada now require DNA tests to ensure that the women relinquishing the children into adoption are actually the babies’ birth mothers. See id.
[30] Though homosexual adoption from China was officially prohibited, it is difficult to determine a prospective parent’s sexuality.
[31] 358 F.3d 804 (11th Cir. 2004) (ruling that Florida can deny homosexual people access to adoption altogether). Steven Lofton, the named plaintiff, was a registered nurse who cared for HIV-positive foster children and who sought to adopt one of them, John Doe. “At eighteen months, Doe [who was born HIV-positive] sero-reverted and has since tested HIV-negative.” Id. at 807. Lofton was denied adoption because of his sexual orientation.
[33] Lofton, 358 F.3d at 806-07.
[35] It is interesting to note that China already bans adoption by homosexual individuals, and this has not made U.S. domestic adoptions more available to homosexual individuals.
[36] A possible fifth alternative is domestic adoption within the United States. Some prospective international adoptive parents might be able to adopt domestically, and they might choose to adopt abroad for reasons other than domestic access to adoption. In this consideration, I am assuming that the U.S. prospective parents discussed here would not have access to domestic U.S. adoption because of the discrimination permitted in parental screening.
[37] See Fowler, supra note 14.
[38] China enacted a major reform of its 1991 adoption policies in 1999 by, inter alia, lowering age-limit requirements. See Blair, supra note 10, at 379. Yet despite the general trend China has pursued in opening access to international adoption, it has closed its borders to international adoption sometimes for a few months at a time. The prospective regulations discussed here are yet another example of the constantly transforming landscape of international adoption policies.
[39] Maura Harty, Helsinki Commission Testimony before the Commission on Security and Cooperation in Europe (Sept. 14, 2005), available at http://travel.state.gov/law/legal/testimony/testimony_2635.html (“In 2001, the Government of Romania imposed a moratorium on intercountry adoptions. This action was taken in response to concerns in the U.S. Government and others about the Romanian adoption system as it existed prior to 2001.”)
[40] See Jill Serjeant, Gay Male Parents Get Dedicated Fertility Program, Reuters, Mar. 14, 2007, available at http://abcnews.go.com/US/wireStory?id=2949985.
[41] See Elizabeth Bartholet, Beyond Biology: The Politics of Adoption & Reproduction, 2 Duke J. Gender L. & Pol’y 5, 11-12 (1995).
[42] See, e.g., The Baby Trade, supra note 28.
[43] See id. at 355. For a representative blog discussion on this subject, see Elisa Poncz, “International Adoption – A Savior for Unfortunate Children or Racial Genocide?” (Nov. 15, 2006), http://childrensrightsandlaws.blogspot.com/2006/11/international-adoption-savior-for.html.
[44] Madonna’s adoption of a young boy from Malawi sparked public scrutiny of international adoption. That case was particularly contentious because the boy’s father was alive and available. Nonetheless, the father was poor and the boy was living in an orphanage. See Raphael Tenthani, et al., Human Rights Group Tries to Halt Madonna’s Adoption, People.com, Oct. 15, 2006, http://www.people.com/people/article/0,26334,1546323,00.html. Other celebrity adoptions, such as those by Angelina Jolie and Brad Pitt have drawn media attention, but less criticism. See Angelina Jolie Inspires International Adoptions, ABC News, Oct. 1, 2005, http://abcnews.go.com/GMA/story?id=1175428&page=1. At the time this article was written, Angelina Jolie reportedly filed adoption papers for a Vietnamese baby. Interestingly, Jolie is not married, and thus she is adopting as a single individual. See Jolie to Adopt Vietnamese Child, Chicago Sun-Times, Mar. 3, 2007 available at http://www.suntimes.com/entertainment/people/281055,CST-FTR-jolie03.article.
[45] Sara Dillon, a noted professor who studies international adoption, points out that estimates of children in Chinese institutions in 2003 ranged from 50,000 to 4.5 million. Sara Dillon, Making Legal Regimes for Intercountry Adoption Reflect Human Rights Principles: Transforming the United Nations Convention on the Rights of the Child With the Hague Convention on Intercountry Adoption, 21 B.U. Int’l L.J. 179, n.11 (2003).
Suggested Citation: Elisa Poncz, China’s Proposed International Adoption Law: The Likely Impact on Single U.S. Citizens Seeking to Adopt from China and the Available Alternatives, 48 Harv. Int’l L.J. Online 74 (2007), http://www.harvardilj.org/online/112.
Related Articles
The Bush Doctrine and Neoconservatism: A Chinese Perspective
Building an Investor-Friendly Shareholder Derivative Lawsuit System in China
Innovation Through Intimidation: An Empirical Account of Defamation Litigation in China
Sacred Space and the City: Religious Buildings and Noise Pollution
