Adoption and children: a human rights perspective

The realities of adoption across member states of the Council of Europe have changed considerably over time, with wide variation by country. In some countries, adoption is a well established practice, while in others it is still relatively unfamiliar. Some allow their children to be adopted abroad, others do not. Some “receive” adopted children from abroad, others are wholly or predominantly “countries of origin”, with certain among the latter now transitioning to becoming “net receiving countries”.

National (in-country) adoption has tended to decline – sometimes dramatically – in Western Europe, whereas successful efforts seem to have been made to promote it in several Baltic and Central and Eastern European states, especially those from which intercountry adoptions had grown in the past 20 years.
Intercountry adoption (ICA) numbers have been falling globally since 2004, a trend observed in most European countries, whether they are “receiving” foreign adoptees or “countries of origin”.

The decline mainly reflects improved conditions for appropriate care of children – especially the youngest– in their own countries, including through national adoption. In contrast, the number of people applying to adopt internationally continues to rise. Within the Council of Europe, there is a long-standing concern that this growing imbalance tends to exacerbate the illegal and unethical practices that have increasingly plagued ICA.

At the same time, more and more countries of origin in and outside Europe are now looking to ICA more especially as a potential care solution for older children and those with disabilities and other special needs. In all countries, however, whether “receiving” or “of origin”, these children are “hard to place”, meaning that the number of people willing and able to adopt them is well below the level required. This imbalance in the opposite direction also creates special concerns.

International agreements have been developed and adjusted over the last fifty years to address the changing adoption landscape and the serious problems that have been encountered. The Convention on the Rights of the Child is now the basic standard-setting text on adoption at the global level. The 1993 Hague Convention focuses on the Protection of Children and Cooperation in Respect of Intercountry Adoption. National adoption in Europe is covered by the new European Convention on the Adoption of Children (Revised) of 2008. Jurisprudence from the European Court on Human Rights has also served to set standards.

Most of the protections and procedures established by these treaties are not contested, but a number of issues are still proving to be controversial. These include securing acceptance, for example: that there is no “right to a family” – and thus to adopt or to be adopted – under international law; that determining the “best interests” of children is a complex undertaking which must respect all other rights; and that ICA requires that it be subordinate to suitable domestic care solutions.
Many procedural challenges need to be tackled to ensure that adoptions are compliant with human rights and other obligations.

Abstract:

Adoption of children, whether in the same country (“national adoption”) or across borders (“intercountry adoption”), raises several human rights issues.

Hence it is essential that the whole process of adoption should be guided by the principle of identifying, and acting in, the best interests of the child. Measures are needed in several areas to better protect children and their rights during national and international adoption procedures. It is also important that the best interests of the child should be determined in a manner that ensures respect for all rights.