Foreign adoptions

There are a lot of American citizens and Lawful Permanent Residents who have sought to adopt children in recent years, but experienced some sort of problems. For many, one of the solutions is foreign adoption; particularly from third world countries where families are too often unable to support unwanted children and orphanages are poorly funded and are in state of despair. Foreign adoptions serve the needs of both the children and the adoptive parents.

Historically, foreign adoptions included countries such as Korea, Vietnam, India, Thailand, Philippines, Brazil and Colombia. In the early 1990’s, China became the largest source country for international adoptions by American parents. In the late 1990’s and early 2000’s, Russia became very popular as a source for adoptive children.

The scarcity of children in foreign countries for foreign adoptions results not from fewer children being abandoned or from better care in a home country, but from the fact that millions of children are living on the streets and are ineligible for foreign adoption simply because they have not entered the system.

Apart from foreign restrictions, prospective adoptive parents in the United States among other considerations must consider American immigration laws. Until 1957 America’s immigration laws did not afford any benefits on adopted children at all. This was out of fear that sham adoptions could be arranged to evade the immigration quotas.

In 1957, Congress amended the “child” definition to include certain adopted children. In 1961, Congress added a separate permanent provision for the admission of “orphan” children.

There remain strict provisions that are aimed at preventing fraud in foreign adoptions. Under the adopted child provision, the child has to have been adopted while under age sixteen, and has to have been in the legal custody of, and have resided with, the adopting parent for at least two years. Further, the biological parents may not thereafter receive any immigration benefits by virtue of such parentage. Adoptive parents may be anyone (United States citizens or Lawful Permanent Residents) eligible to petition generally for the immigration of their children.

Not withstanding the express statutory requirements, the Board of Immigration Appeals has read in a general requirement that adoption must not have been entered into solely for immigration purposes (just like the marriage cases). Cases where adopting parent is a close relative, particularly if a biological parent continues to live in the same household as the child and the adopting parent are harshly scrutinized.

Under the “orphan” provision, certain United States citizens (but not Lawful Permanent Residents) may petition for the admission of children under age sixteen who have experienced the death, disappearance, or abandonment of both parents or sometimes just one parent.

In the recent years, as world globalization progressed, the international community has become increasingly concerned with child abduction, trafficking of kidnapped children, and other forms of child abuse. Presently, many of the world’s leading nations signed the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (the “Hague Convention”). The Hague Convention provides for and requires certain minimum procedures designed to protect children, biological parents, and adoptive parents. In the United States, the outcome of the Hague Convention was the Intercountry Adoption Act of 2000, which assigns primary regulatory responsibility for foreign adoption to the State Department and expands slightly the range of children whom United States citizen parents may bring to the United States from other countries that have also implemented the Convention.

Another hurdle that adoptive parents must overcome is that foreign adoptions are very costly. The adopting parents must be willing to pay the legal fees of foreign and American attorneys, adoption agency fees, and travel expenses. It is not unusual for total cost to reach as high as $20,000.

There are some potential family law issues and debates that arise out of foreign adoptions. Fore example, one issue is when to permit the biological mother of a child born out of wedlock to release her child for foreign adoption without the consent of the biological father. On the one hand, the father may not want to have anything to do with that child and has disappeared, making unilateral consent essential. On the other hand, there are always instances in which the father should be permitted to assert parental rights.

There are numerous other issues and concerns that arise out of foreign adoptions. These were just a few brief introductory points to foreign adoptions.