OUTGOING ADOPTIONS
Emigration of children from the United
States for Adoption by Parents who are
Citizens of other Countries: What should
happen when things go wrong?
Cynthia R. Mabry-King
Professor of Law
Howard University School of Law
cmabry@law.howard.edu
Capital University Law School
March 12, 2015
THESIS
Hundreds of American children have been adopted by parents who are
citizens of other countries such as Austria, Canada, Ireland and the
Netherlands. The Intercountry Adoption Act provides that accrediting
agencies and other approved persons must comply with specific procedures
when a child emigrates from the United States. For example, a background
study on the child must be completed and the agency or approved person
must certify that reasonable recruitment efforts and diligent searches have
been made to identify prospective adoptive parents in the United States and
that there is not a suitable placement for that child in the United States. In
addition, a certification that placing the child outside of the United States is
in the child’s best interests is required. See generally 42 U.S.C.A. § 14932.
See also 22 C.F.R. §§ 96.53, 96.55. Many of these children are African
American children who are adopted by non-African American parents. This
article explores the process of emigration; what happens to children who
are adopted by parents who are citizens of another country, culture, and
heritage; and, what should happen when things go wrong with those
adoptions. This article concludes that with proper precautions to protect
the children’s best interests, emigration of American children should be an
alternative for children who cannot find permanent homes in the United
States.
OUTGOING OR CONVENTION ADOPTION
“an adoption of a child resident in the United States by
an individual residing in another Convention country.”
42 U.S.C.A. § 14902 (10) (2015).
U.S. CHILDREN ADOPTED BY PARENTS
FROM OTHER COUNTRIES
YEAR
2008
2009
2010
2011
2012
2013
NUMBER
25
26
43
73
99
84
TOTAL
350
U.S. Department of State, FY 2008- 2013 Annual Reports on Intercountry Adoption,
available at http://travel.state.gov/content/dam/aa/pdfs/fy2013_annual_report.pdf
U.S. STATES FROM WHICH CHILDREN EMIGRATE
Florida
Hawaii
Illinois
Indiana
Maine
Minnesota
Missouri
New Jersey
New York
South Carolina
Texas
Utah
http://travel.state.gov/content/dam/aa/pdfs/fy2013_annual_report.pdf
WHICH U.S. STATE SENT THE MOST
CHILDREN ABROAD?
Q U E RY:
47 O F 9 9 A D O P T E E S I N 2 0 1 2
4 5 O F 8 4 A D O P T E E S I N 2 013
FY 2012 and 2013 Annual Reports (indicating that Florida sent more than ninety
children abroad).
WHERE ARE AMERICAN CHILDREN PLACED?
Austria
Canada
Curacao
Germany
Ireland
Mexico
Netherlands
South Africa
Spain
Switzerland
Tanzania
United Kingdom
FY 2010, 2011, 2012, 2013 Annual Reports, supra, Table 3:
Outgoing (Emigrating) Adoptions
WHICH AMERICAN CHILDREN ARE PLACED ABROAD?
Most of the children are newborns.
Most of the children are African-American.
WHY U.S. PARENTS ARE NOT ADOPTING
THESE CHILDREN
There is a lack of healthy white infants waiting for adoption.
Some parents fear that a birth parent will return to claim a child.
Statutes or adoption policies prevent some parents from adopting.
Some parents want children who look like them.
Some parents want to help children in another country.
Some parents are concerned about how their family members and
the community will react to a transracial family.
Some parents are concerned about their ability to raise an African
American child in the United States.
Some race-matching still is practiced and preferred by birth
mothers and sociologists.
WHO IS ADOPTING THESE CHILDREN?
Same-sex, heterosexual and single parents:
Most of the parents are Caucasian.
AMERICAN CHILDREN AND THEIR PARENTS
WHY EMIGRATION OF U.S. CHILDREN OCCURS
WHY THE U.S. HAS
BECOME A SENDING
COUNTRY
WHY FOREIGNERS WANT
TO ADOPT U.S. CHILDREN
A birth parent prefers an
outgoing adoption.
There is a lack of waiting
children in their country.
Children of color are
adopted at a lower rate in
the U.S.
U.S. adoptions are faster.
There are not enough U.S.
applicants who seek a child
of color.
Many waiting children are
older.
Adoption laws in their country
may prevent them from
adopting a child.
Racism is less of a concern in
their country of origin.
BENEFITS FOR THE ADOPTEE
The child will have a permanent, loving home.
The world is becoming more global. Study Abroad Programs,
http://www.goucher.edu/study-abroad/study-abroad-programs
Technological advances allow frequent communication and access
across borders.
The child will develop a world view.
The child will have the potential to learn another language and
culture.
The adult child will have more marketable skills.
The child will be able to maintain his/her United States citizenship.
There is post-placement supervision.
Prospective parents may sign a written agreement to cooperate with
post-adoption visits. See, e.g., Ill. Admin. Code , tit. 89, § 333.90 (2015).
PLACEMENT CONCERNS
Loss of Identity
Loss of Culture and Heritage
Loss of Medical/Social History
Loss of Birth Family Connections
Lack of Post-adoption Reporting
Lack of Consistent State Laws
Photographs of families in this
presentation appeared in Sophie
Brown (for CNN), Overseas
adoption rise—for black
American children (September
17, 2013),
http://www.cnn.com/2013/09/1
6/world/international-adoptionus-children-adopted-abroad/.
APPLICABLE STATUTES AND REGULATIONS
FOR THE OUTGOING ADOPTION PROCESS
RELEVANT HAGUE ADOPTION CONVENTION
REQUIREMENTS
The child is adoptable.
After due consideration to placement in the U.S., an intercountry adoption is in the
child’s best interests.
Consents obtained from birth parent(s) and a mature child were informed, freely
given and not induced by payment.
A birth mother’s consent was given after the child’s birth.
The effects of adoption are shared.
Reports from the receiving country and the sending country’s Central Authority are
provided.
The child’s ethnic, religious and cultural background are considered.
The prospective adoptive parents are suitable for adoption.
Secure and appropriate transfer of the child has been arranged.
Hague Adoption Convention, art. 4, 15-21.
INTERCOUNTRY ADOPTION ACT PROVISIONS
The purposes [] are-(1) to provide for implementation by the United States of the Convention;
(2) to protect the rights of, and prevent abuses against, children, birth
families, and adoptive parents involved in adoptions (or prospective
adoptions) subject to the Convention, and to ensure that such adoptions
are in the children's best interests; and
(3) to improve the ability of the Federal Government to assist United States
citizens seeking to adopt children from abroad and residents of other
countries party to the Convention seeking to adopt children from the
United States.
42 U.S.C.A. § 14901(b)(3) (2015).
REQUIRED STATE COURT REVIEWS AND VERIFICATIONS
The adoptive placement is in the best interests of the child;
A child background study has been completed;
The adoption service provider made reasonable efforts to place the child in the
U.S. and has been unable to do so;
The U.S. Department of State determined that this placement is in the best
interests of the child;
A home study on the prospective adoptive parents has been completed;
The receiving country’s Central Authority has provided a declaration that the
child will be permitted to enter and reside there permanently;
The Central Authority has provided a declaration of consent to the
adoption, if necessary; and,
Articles 4 and 15 through 21 of the Hague Convention on Protection of Children
and Co-operation in Respect of Intercountry Adoption (Hague Adoption
Convention), 32 I.L.M. 1139 (1993), have been met.
See generally IAA, 42 U.S.C.A. § 14932 (2015) (listing accrediting agencies’ and other approved persons’ duties); 22 C.F.R. §§
96.53, 96.54, 96.55 (2015).
DEMONSTRATING REASONABLE EFFORTS TO FIND A
TIMELY ADOPTIVE PLACEMENT IN THE U.S.
(1) Disseminating information on the child through print, media, and
internet resources designed to reach potential prospective
adoptive parents in the United States;
(2) Listing information about the child on a national or state adoption
exchange or registry for at least 60 days after the child’s birth;
(3) Responding to inquiries about the child’s adoption ; and,
(4) Providing a copy of the child’s background study to potential
prospective adoptive parent(s) in the United States.
22 C.F.R. § 96.54(a) (2015).
STATE LAWS ON OUTGOING ADOPTIONS
The accredited agency or approved person‘s mandatory
responsibilities include:
(1) Conducting a background study on the child
(2) Obtaining proper consents
(3)“Due consideration to the child's wishes or opinions”
(4) Transmission of proper documents to the proper authorities
(5) Compliance with all placement standards in 22 C.F.R. § 96.54
(6) Keeping the Central Authority and the Secretary informed of the
adoption process and efforts to it
(7) Reporting the adoption to the Secretary.
CAL. FAM. CODE § 8924(a)-(d) (West 2015).
OTHER CONSIDERATIONS
*Child's/bir th parents’ preferences
*Full disclosure of outgoing placement
*Diligent ef for ts to place siblings together
*Compliance with ICWA
*Due consideration of the child’s upbringing,
ethnic, religious and cultural background
*Prepare the child in an age -appropriate manner
*Identification of an entity that will provide
reports, if required
22 C.F.R. §§ 96.53, 96.54 (2015).
FINALIZATION
*United States state court issues an adoption decree
or
*State court issues an order of custody
42 U.S.C.A. § 14932(a)(3), (b) (2015).
PROSPECTIVE/ADOPTIVE PARENTS MUST:
1) Seek a visa from the receiving country;
2) Submit an appropriate application and documents for:
a) Hague Adoption Certificate
or
b) Hague Custody Declaration; and,
3) Provide post-placement reports, if, the sending state’s
laws require reporting.
http://travel.state.gov/family/adoption/convention/convention-4196.html
AN OPPORTUNITY FOR CHILDREN IN CHILD WELFARE
WHO ARE THE
CHILDREN IN CHILD
WELFARE?
*Children in
Foster Care
*Children
Adopted
WHO SHOULD BE
A D O P TAB L E ?
402,378
Children whose parents’ rights
have been terminated.
50,281
Older children who are willing to
live in another country.
Children who have relatives
who live abroad.
*Children
Waiting
For Adoption
101,840
*African American
24,312
*Hispanic
23,281
Preliminary FY Estimates as of July 2014,
http://www.acf.hhs.gov/sites/default/files/cb/
afcarsreport21.pdf
CULTURE AND HERITAGE CONCERNS IN
OUTGOING ADOPTIONS
The Hague Adoption Convention provides that :
 “(1) If the Central Authority of the State of origin is
satisfied that the child is adoptable, it shall a) prepare a report including information about his or
her identity…;
b) give due consideration to the child's upbringing and to
his or her ethnic, religious and cultural background…”
 Hague Adoption Convention, art. 16(1).
CULTURE IN THE
OUTGOING ADOPTION PROCESS
The agency is instructed to “take[] all appropriate measures
to give due consideration to the child's upbringing and to his
or her ethnic, religious, and cultural background.”
“The agency or person thoroughly prepares the child for the
transition to the Convention country, using age-appropriate
services that address the child's likely feelings of separation,
grief, and loss and difficulties in making any cultural,
religious, racial, ethnic, or linguistic adjustment.”
22 C.F.R. § 96.54 (e) and (g) (2015).
PROSPECTIVE PARENT SCREENING
Prospective parents should be willing to respect a child’s ethnic, religious
and cultural background.
Prospective parents should be willing to educate a child about her ethnic,
religious and cultural background.
Prospective parents should be willing and able to make homeland visit(s).
Prospective parents should be willing to consider other possibilities of
connecting with the United States (i.e., college education and vacations).
Prospective parents should be willing to consider an open adoption (in a
form that is comfortable for them and the child), when it is appropriate,
and could include specified persons (relatives, siblings, extended family
members, foster parents, persons who have vital background information
about the child).
DISRUPTIONS OR DISSOLUTIONS
T H E S E C R E TA R Y O F S TAT E M U S T B E
C O N S U LT E D B E F O R E A R R A N G E M E N T S A R E
MADE TO RETURN A CHILD TO THE U.S.
2 2 C . F. R . § 9 6 . 5 4 ( k ) ( 2 0 1 5 ) .
STATE DEPARTMENT’S CAUTIONARY STATEMENT
“Disrupted and dissolved outgoing cases are likely to be
sensitive and extremely traumatic for the child. These cases
also involve substantial coordination with the foreign
government of the receiving country. The child retains U.S.
citizenship, but may also have acquired citizenship in the
receiving country. The consultation requirement allows the
Department to become aware of the facts of a particular
case and take case-specific action as appropriate.”
Department of State, Bureau of Consular Affairs, A Guide to Outgoing Cases from the United
States 24 (December 2011) (hereinafter Guide to Outgoing Cases).
RETURN PROCEDURE
“The agency or person consults with
the Secretar y before arranging for the
return to the United States of any child
who has emigrated to a Convention
country in connection with the child's
adoption."
2 2 C . F. R . § 9 6 . 5 4 ( k ) ( 2 0 1 5 ) .
STATE DEPARTMENT’S GUIDANCE
“The transfer of the child back to the United
States, if appropriate, should take place
under the same conditions and safeguards
as the initial transfer to the receiving
country.”
Guide to Outgoing Cases, supra, at 24.
TRANSFER PROCEDURE
“The agency or person takes all appropriate measures
to ensure that the transfer of the child takes place in
secure and appropriate circumstances, with properly
trained and qualified escorts, if used, and, if possible,
in the company of the adoptive parent(s) or the
prospective adoptive parent(s).”
22 C.F.R. § 96.54(h) (2015).
ILLINOIS DISRUPTION PROCEDURE
“The Illinois placing agency shall retain jurisdiction over
the child to determine all matters related to custody,
supervision and care of the child and the final status of
the case. This includes situations in which the adoption is
disrupted and the agency regains custody of the child and
finds an alternative adoptive family for the child. This
jurisdiction shall also include the authority to effect or
cause the return of the child to the United States or the
child's transfer to another location.”
Ill. Admin. Code, tit. 89, § 333.90 (2015).
DISRUPTION RECOMMENDATIONS
Parents should be instructed regarding how and when to
contact a designated person in the Secretary’s office
before a child is returned to the United States.
A specific protocol for disruption should be produced and
publicized.
Parents should receive written and oral instruction during
the adoption process and during post-adoption visits.
CONCLUSION AND RECOMMENDATIONS
These adoptions provide opportunities for more children to be
placed in a permanent, loving home.
In the process, all children’s best interests should be paramount
and those interests should be protected.
Procedures should ensure that children’s interests are protected.
Uniformity of state laws is needed for:
obtaining supplemental medical history and identifying
information;
post-adoption reporting until the child reaches the age of
majority; and,
post-adoption contact with family members and others in the
U.S.
There is a need for a clear protocol on what happens if a child
needs to be returned to the U.S. before or after an adoption.
SELECTED SOURCES
The Intercountry Adoption Act of 2000, 42 U.S.C. §§ 14901-14954 (2015).
The Intercountry Adoption Universal Accreditation Act of 2012, 42 U.S.C. § 14925 (2015).
Department of State, Bureau of Consular Affairs, A Guide to Outgoing Cases from the United States
(December 2011).
A Web-Guide for State Authorities on Outgoing Adoption Cases from the United States to Another
Convention Country 6-7 (2008), available at
http://travel.state.gov/content/dam/aa/pdfs/web_guide_state_authorities.pdf.
Galit Avitan, Protecting Our Children or Our Pride? Regulating The Intercountry Adoption of
American Children, 40 CORNELL INT’L L.J. 489 (2007).
D. Marianne Brower Blair, Admonitions or Accountability? U.S. Implementation of the Hague
Adoption Convention Requirements for the Collection and Disclosure of Medical and Social
History of Transnationally Adopted Children, 40 CAP. U. L. REV. 325 (2012).
Cynthia R. Mabry, Love Alone Is Not Enough in Transracial Adoptions--Scrutinizing Recent Statutes,
Agency Policies, and Prospective Adoptive Parents, 42 WAYNE L. REV. 1349-1422 (1996).
Sophie Brown (for CNN), Overseas adoption rise—for black American children (September 17,
2013), http://www.cnn.com/2013/09/16/world/international-adoption-us-children-adoptedabroad/.
Dawn Davenport, Born in America, adopted abroad (October 27, 2004),
http://www.csmonitor.com/2004/1027/p11s01-lifp.html.
Columbia Homeland Tours, http://www.barkeradoptionfoundation.org/post-adoption/colombiahomeland-tours.