Separation from the parent is identified by UNICEF as the primary danger faced by children without caregivers. A 2004 report set the global number of children without a guardian at 143 million, with 13 million bereft of all family and the majority facing institutionalization. In 1993, the Hague Adoption Convention on the Protection of Children and Co-Operation in Respect of Inter-Country Adoption sought to address what was recognized as a growing global issue; yet recent international trends have limited or prohibited international adoption. A heated and often emotionally charged global debate regarding how best to address the needs of orphans, especially when confronting international, interracial adoption, poses a current challenge to former adoption models. The debate centers on the removal of children from their birth countries and cultures to place them with families in which they may not be able to form healthy concepts of racial identity and culture. The other side of the debate presents the adverse effects on children raised in institutions as a reason to prioritize placing a child with a family, regardless of nationality and ethnicity.

On November 6, 2009, the Inter-American Commission on Human Rights (IACHR) hosted a hearing on the “Human Rights of Un-parented Children and International Adoption Policies.” Elizabeth Bartholet of Harvard Law’s Child Advocacy Program (CAP), Paulo Barrozo of Boston College Law School, and Karen Bos of the Children’s Hospital Boston, Harvard Medical School, and Harvard School of Public Health testified before the IACHR regarding the “human rights of un-parented children in Guatemala, Honduras, and Peru.” Due to restrictions on studies and investigation into adoption practices in Guatemala, Honduras, and Peru, the presenters barely discussed these countries. Instead, they referred to statistics gathered from other countries facing similar adoption issues. They requested that the Commission express a commitment to the promotion of adoption as a human right, affirm the right of the child to international adoption, and urge Guatemala, Honduras, and Peru not to limit adoption strategies. Specifically, they asked that the Commission change the focus of adoption and human rights, which has traditionally concentrated on the rights of the parent and the rights of the home country, and instead focus on the rights of the child. They asked the Commission to consider affirmation in the American Convention on Human Rights that all people have the right to a family, given in Articles 17, 18 and 19; to human rights, in Article 1; and to have those rights protected, in Article 2.

Human rights evolve, stated Barrozo, and in determining the path of this evolution, he hoped the Commission would take into account the “voiceless minority of un-parented children.” Bartholet asked the Commission to affirm the right of an orphan to a family as fundamental and as a pre-condition to the complete enjoyment of other rights. Specifically, she stated, there is no other “single factor in times of peace as morally degrading as institutionalization.” To support this claim, Bos detailed recent studies showing that institutionalized children suffer from cognitive and physical retardation due to lack of attention, care, and stimulation. The presenters claimed that extreme, but avoidable, effects on brain and body growth, limit the ability of such children to fully take advantage of the rights afforded to all human beings. Therefore, limits on adoption have a negative impact on children’s human rights. The full presentation is available at CAP Testimony.

In conclusion, the presenterers asked that the Commission reject the recent moratoria on adoption implemented by Guatemala, Peru and Honduras. In addition, they requested that the IACHR reject prohibitions on intermediaries who facilitate international adoption and in-country preferential treatment of potential adoptions, and instead take a proactive approach by supporting the rights of children to a family through adoption.

The three-commissioner panel, after consideration, agreed with presenters about the urgency of addressing adoption, but was hesitant to require countries to accept international adoption. The commissioners identified two decisive issues: the rights of children, generally; and the right to be adopted internationally. The commissioners recognized the rights of the child, but they cited complex issues related to international adoption, for example kidnapping cartels and the possibility that international adoption undermines the development of viable solutions for orphans in their countries of origin. Further, many institutionalized children have biological family members who cannot afford to care for them; separation of these children from their biological families is no small matter. The commissioners asked the petitioners to explore the specific issues of adoption in Guatemala, Peru, and Honduras with a focus on adoption abuses and potential remedies. Further, the commissioners asked for an investigation into alternatives to international adoption and others ways in which these countries can work to address the rights of children without a home or family.

In response, Bartholet expressed her concern about using further resources to replicate the same results; namely, without improved access to the information that has been denied by Guatemala, Peru, and Honduras thus far, the researchers would merely demonstrate once again the continued negative effect on orphans of shutting down international remedies. Following the hearing, the petitioners had conflicting reactions to the Commission’s response. Nevertheless, Bartholet told the Human Rights Brief that she was extremely pleased that the Commission agreed to accept further investigation into the matter. In general, the consensus appeared to be that this hearing was a “major development in the human rights debate surrounding these issues” and the petitioners look forward to the opportunity to bring more information before the IACHR.