Does the Hague Convention on Intercountry Adoption Address the Protection of Adoptees' Cultural Identity? And Should It?

On December 12, 2007, the Instrument of U.S. Ratification of the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption was deposited at The Hague (U.S. Department of State, 2007).This act made the United States a flail member of the Hague Convention, which entered into force for the United States on April 1, 2008. The convention (Hague Conference on Private International Law, n.d.) governs intercountry adoptions between the United States and other members through the Intercountry Adoption Act of 2000 (P.L. 106-279). The United States will not engage in adoptions with countries that are not members or are out of compliance. An issue raised often is whether transcultural adoption will impede an adoptee's cultural identity development and what the implications are. The purpose of this commentary is to consider the Hague Convention from the standpoint of this issue and to make relevant recommendations for consideration by U.S. adoption professionals. BACKGROUND U.S. ratification of the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption spans 15 years. Shortly after the convention concluded on May 20, 1993, the United States joined as signatory on March 31, 1994. The convention was transmitted to the Senate for its advice on June 11, 1998 (S.Treaty Doc. 105-51, 1998). On September 20, 2000, the Senate gave its advice and consent to ratification, subject to certain declarations, and on October 6, the Intercountry Adoption Act of 2000 (P.L. 106-279) was enacted. Two special commissions (Permanent Bureau, Hague Conference on Private International Law, 2001, 2006) were convened to assist contracting states with practical implementation of the Hague Convention, resulting in issuance of the Guide to Good Practice under the Hague Convention (Permanent Bureau, Hague Conference on Private International Law, 2006). In its preamble, the Hague Convention gives priority to children remaining with their biological parents or relatives or with nonrelatives in the country of origin and to protection of children from child abduction, selling, or trafficking. At the same time, it contains language emphasizing the benefits to children of a caring family environment, of intercountry adoption when suitable placement in the country of origin is not possible, and of considering children's best interests and fundamental rights in adoption decisions. Thus, the alternative of intercountry adoption remains "at the table" for children who are in need of care and who reside in member countries. The convention calls for two other provisions related to culture that affect receiving countries: (1) preservation, and later access by the adoptee, of records containing identifying information about the adoptee's background and history (Article 30, Sections 1 and 2), to be provided according to the laws of the receiving country and (2) preparation of a report by receiving countries of potential parents' "identity, eligibility, and suitability to adopt, background, family and medical history, social environment, reasons for adoption, and ability to undertake an intercountry adoption as well as the characteristics of children for whom they would be qualified to care" (Article 16, Section lb). This suggests an opening to consider cultural competence in adoption decisions or training. The question addressed by this commentary is as follows: To what extent is protection of cultural identity considered in the actual implementation of the Hague Convention in the United States and to what extent should it be? HOW IS THE HAGUE CONVENTION BEING IMPLEMENTED IN THE UNITED STATES? U.S. adoption accreditation regulations (Bureau of Consular Affairs, 2006) are based on the Guide for Good Practice under the Hague Convention (Permanent Bureau, Hague Conference on Private International Law, 2006) and the U.S. Intercountry Adoption Act of 2000. Regulations call for a thorough home study that includes eligibility to adopt a child under requirements of the country of origin and archiving adoption records for at least 75 years. …