Opinionista Robyn Wolfson Vorster 1 April 2021

Are intercountry adoptions in children’s best interests?

February 2021 was an awful month for intercountry adoptions. First, the Netherlands suspended them, then social development declared that children are better off in institutional care in South Africa than in family care outside the country. Without evidence, both decisions have been deemed in children’s best interests. But, has anyone asked the children?

It’s been almost two months since the Netherlands’ shock decision to halt all intercountry adoptions. The unilateral decision by then Minister of Legal Protection Sander Dekker, in response to the Joustra Committee’s report on the issue, is temporary and will not affect adoptions currently in process.

But experts warn that in an election year it may be months before a new government is able to re-evaluate the ban, and that because intercountry adoptions are so lengthy, delaying the screening of new adoptive parents may result in children spending much longer in institutional care.

The committee uncovered massive adoption abuse between 1967 and 1998 in five sending countries – Bangladesh, Brazil, Colombia, Indonesia and Sri Lanka – including corruption, falsified documents, officials forcing birth parents to give up their children in return for payment or through coercion, child trafficking, baby farming and obscuring children’s identities.

It also drew the startling conclusion that the Dutch government and Dutch intermediaries were aware of and involved in the abuses, that the government did not effectively tackle them and that the abuses (unsurprisingly) had a negative effect on birth families, adoptive parents and, most importantly, adoptees. 

According to Sander Vlek, a father of two adopted children from South Africa who chairs the National Organisation for Adoptive Parents in the Netherlands, his government’s response was equally worrying – there have been no prosecutions or sanctions of government officials or adoption intermediaries. Nor, bewilderingly, did the report recommend them.

In addition, although the period under investigation pre-dated the Hague Convention and did not include Africa, the committee unexpectedly made a last-minute extension to its scope of work, adding adoptions post-1998. These may help to determine if there have been improvements following the implementation of the convention. But Vlek alleges the second part of the investigation was less thorough than the first. Agencies responsible for modern adoptions were not asked to provide documentation (despite offering) and the committee did not visit affected countries.

In addition, the post-1998 abuses vary dramatically across countries. For example, in South Africa there were sporadic instances of missing personal documents and maladministration, but no evidence of forged documents, fraud or corruption, child theft, child trafficking or baby farms. The Dutch Central Authority also reported it was not aware of any systemic abuses by any of its sending countries for the past 13 years.

Concluding that all intercountry adoption processes have “inherent vulnerabilities” and so can never be free from abuse, therefore seems unsubstantiated.

Despite this, the only action following the report has been to stop intercountry adoptions, which, according to Vlek, has drawn attention away from the pain suffered by the adoptees affected by past abuses.

And while the report explores the problems adoptees face in establishing their pre-adoption identity (owing to forged documents and stolen children), it fails to acknowledge that identity is not a given for adoptees, even when adoption is properly administered. This is particularly true for abandoned children or those placed in the system without details about their history and parents.

The report also seems to ignore research, including Femmie Juffer and Marinus van IJzendoorn’s analysis of 88 studies on identity among almost 45,000 participants, which found that the self-image of adoptees was no less than that of non-adoptees, and so not dependent on knowledge of genetic parents.

Research also showed that, on average, adult adoptees were positive about intercountry adoptions and 70% wanted them to continue. So why halt intercountry adoptions rather than redressing past atrocities?

Tellingly, even those who were affected by the adoption abuses before 1998 were unhappy with the minister’s decision, while the Dutch Adoption Foundation, which labelled the decision “draconian” and one that “affects the children who have most to gain from adoption”, warned that the ban could push adoptions into the black market.

As the Foundation notes, the response to the report ignores the elephant in the room: trafficking. Although intercountry adoption may historically have been used as a vehicle for coercion and child trafficking in the Netherlands, this is no longer evident. Now, the ban could drive illegal practices underground, especially in the absence of high-level prosecutions.

It’s a lose-lose situation, the potential for trafficking, and in countries like South Africa where there are no allegations of illegal activity, a terrible price to pay for the children most in need of family care.

In the absence of parliamentary consultation and punishment of perpetrators, the ban looks more like a politically motivated sleight of hand to deflect attention from past injustices than an attempt to prevent future atrocities.

The Netherlands’ government is not the only one guilty of artifice. In a briefing to the Portfolio Committee on Social Development on 17 February 2021, the Department of Social Development’s specialist in legislative drafting and review, Luyanda Mtshotshisa, cherry-picked from the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption to reinforce the purported link between intercountry adoptions and “the sale of a child”, and justify the department’s position that they should be a “last resort” for South African children.

Every presentation Mtshotshisa has made on the Children’s Amendment Bill has stated an explicit link between adoption and trafficking, including that there is a “fine line between adoption and the sale of a child”. However, no one in the department has presented credible evidence of this.

When challenged by the portfolio committee to produce figures confirming the link, Mtshotshisa quoted data on the number of missing children in countries across the globe to show that South African children are comparatively better off here. It seemed credible, except he was reading verbatim from a “missing children” website so it’s unlikely that he had verified  the figures. He did not say what percentage of each country’s child population these numbers represented. Nor did he provide comparative South African statistics of missing children, or those murdered, raped or subjected to violence.

Regardless of the source, asserting that missing children are all trafficked is problematic because many missing children do not fit the legal definition of human trafficking.

Further, not all of the countries on Mtshotshisa’s list have adoption treaties with South Africa, and those that do (including the UK, US, Australia and Canada) are ranked Tier 1 on the global human trafficking list. South Africa is on Tier 2. In other words, except for Germany (Tier 2), they fully comply with the minimum standards for the elimination of trafficking, whereas countries like South Africa “do not fully meet minimum standards but are making significant efforts to do so”.

So, Mtshotshisa’s assertion that children are comparatively better off in South Africa and less likely to be exposed to harm than in other countries, is not supported by evidence.

It has fallen to the Department of Home Affairs to provide the first anecdotal links between intercountry adoptions and trafficking. Presenting to the Social Development Portfolio Committee on the Children’s Amendment Bill, the department cited a tragic story about two children with South African documentation allegedly sold as sex slaves in Ghana.

But the story asks more questions than it answers, specifically: why were the children adopted into Ghana when South Africa doesn’t have an adoption treaty with that country or a designated child-protection organisation to facilitate adoptions, or, more disturbingly, when Ghana is not a signatory to the Hague Convention?  

It is feasible to conclude that if these children were trafficked, it occurred outside the fail-safe mechanisms set up to prevent children from being harmed during an intercountry adoption, confirming that the problem is trafficking, not intercountry adoptions. 

Again: why legislate around the exception, particularly when criminal sanctions would be more appropriate?

Mtshotshisa seemed untroubled by the absence of verifiable proof to connect trafficking and adoptions in treaty countries. Instead, he quoted the reference to trafficking in the Hague Convention preamble, reasoning that if the convention cautions against it and was established to try to prevent it, it is confirmation that trafficking and adoption are integrally linked.

He also quoted the preamble and Article 4 to argue that intercountry adoptions should be a “last resort” for South African children.

What Mtshotshisa didn’t explain is that, although the convention explicitly states the principle of subsidiarity (prioritising the reunification of children with their biological parents or relatives, followed by adoption within the country of birth, then intercountry adoption), it doesn’t call intercountry adoption “a last resort”.

Instead, it reinforces the importance of family care: “The child, for the full and harmonious development of his or her personality, should grow up in a family environment.”

Moreover, the Hague Guide to good practice says “the principle of subsidiarity should be interpreted in the light of the principle of the best interests of the child. For example, national adoption or other permanent family care is generally preferable, but if there is a lack of suitable national adoptive families or carers, it is not preferable to keep children waiting in institutions when the possibility exists of a suitable permanent family placement abroad. Institutionalisation as an option for permanent care, while appropriate in special circumstances, is not as a general rule in the best interests of the child. Finding a home for a child in the country of origin is a positive step, but a temporary home in the country of origin in most cases is not preferable to a permanent home elsewhere”.

In contrast, social development’s position is that before intercountry adoption a child “must first go for foster care, family adoption, adoption within the country or to a child and youth care centre”. 

Mtshotshisa did describe the latter as the “most unfavourable part” and conceded that there is a strong “negative view” of these centres. But the argument is still alarming. Not only has the department declared publicly that what is in a child’s best interests is institutional care in the child’s country of origin, rather than family care in a foreign county, but, if Mtshotshisa’s list is accurate, it also favours impermanent foster care over all adoption, even by a family member.

We should also question his caveat that some people are negative about child and youth care centres because “children raised in that environment end up being something else in future”. In other words, the department favours institutional care despite the belief that children raised in institutions will have future problems. Moreover, it seems incredible that its chief concerns result from anecdotal evidence about the effect of institutionalisation on children, rather than the findings of an enormous body of research.

A comprehensive study on the development of children raised in institutions, by Van IJzendoorn et al in 2020 – using data compiled over 65 years, including more than 300 quantitative studies across more than 60 countries and more than 100,000 children – found that the institutionalisation of children constituted structural neglect, a form of child abuse, and resulted in delayed physical growth and cognitive and socio-emotional development. It also shows that, while the damage is greater the longer children remain in care, most children removed from institutions and placed in family care recover developmentally.

Van IJzendoorn’s research provides the basis for two core propositions by Philip Goldman and colleagues in The Lancet policy commission: that children’s exposure to institutionalised living should be avoided completely if possible or minimised, and that to achieve this, extended kinship families and adoptive or stable foster-family care should be supported.

These aren’t ambiguous findings, and although the government might argue that there is only an average of 150 intercountry adoptions per year, so minimising them won’t have much impact, I doubt the children and their families would agree. Worse, although social development refuses to disaggregate the figure, adoption agencies confirm that the majority of intercountry adoptees either have special needs or are older, which means that, given most South African families want to adopt children as young as possible, they would not have experienced family care if intercountry adoption had not been an option.

One of the children who could have benefited from an intercountry adoption is Tumelo, a child we first came across in June 2017. Then an undocumented nine-year-old with cerebral palsy, he was found starving, rat-bitten and covered in faeces in a tiny, overcrowded shack in Soweto. After thriving in hospital he was returned to his home. Months later, when he was rescued, he was skeletal, a mere 13kg, full of burn marks. All his developmental progress had disappeared.

The physiotherapist who had found him, working with the South African Human Rights Commission, got him into one of the finest special needs facilities in the country.

It was a victory for the child protection system. But just two-and-a-half years later came the devastating news that Tumelo had died in an accident at the facility. 

There are no allegations of wrongdoing against the facility, nor was anyone deemed culpable for Tumelo’s death. But it does call into question Social Development’s presumption that institutional care, even in the best facilities, is in the best interests of children who could have family care instead. This is particularly true for special needs children. Disturbingly, one in four children with disabilities is orphaned and the percentage of children with disabilities in institutional care is three times the South African norm (almost 30% versus the 11% of the population as a whole).

And not all facilities are as excellent as the one where Tumelo spent the last few years of his life. After the Life Esidimeni scandal, we might assume that there has been massive reform in the institutional care of adults and children with disabilities. But, if so, it has been isolated and there are still accounts of horrific abuses, particularly against non-verbal children who cannot protest or tell their stories.

It was in institutional care that twins with cerebral palsy were found shortly before they starved to death. They had each lost a third of their body weight while in the institution. Another cerebral palsy child in care was left with a brain bleed after being whipped with a cable. When he was found, he was starving, covered in bites, with faeces caked into his hands. He was so over-medicated that had his mother not discovered him when she did, he would probably have died in his sleep. And it was in an institution that a profoundly disabled teenager lost all the skin on his feet and his toenails after being lowered into scalding water.

Although some disabled children have families who could care for them with the proper support, the majority who don’t need options for permanent family care. But for this to occur, the government must remain receptive to intercountry adoptions and social workers need to declare these children adoptable.

Older children too are notoriously difficult to place in national adoptions. Gelo* is eight. In a country where adoption failures are a rarity, she has had two that have left her bereft. She has no biological family to raise her and now, despite how little she is, her social workers have said they won’t continue trying to place her nationally because she is too old, and that intercountry adoption is not an option. Instead, they are recommending institutional care for the rest of her childhood.

Why should innocent children like Gelo grow up without a family because a government has chosen a political gesture rather than bringing criminal charges against those guilty of atrocities against adoptees? Is the preservation of her identity as a South African more important than being part of a family (she can’t preserve her cultural or family heritage because she was abandoned)? Do institutions preserve culture, and if so, is that compensation for cognitive and emotional developmental delays and potential attachment problems?

Above all, is the South African government correct that it is better for her to grow up in an institution locally, rather than in another country?

If Tumelo’s story has taught us anything, it’s that even the best institutions can’t replace family care for vulnerable children. It is too late for Tumelo to speak for himself, but if he could he may say that we need a new definition of what is in “children’s best interests”. DM  

* Name changed for the child’s protection.

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