Intercountry adoption (ICA) began as a humanitarian effort after World War II to place orphaned children, for whom a state could not find a family domestically, into families of willing foreigners. In recent decades, ICA has grown into a complex and substantially commercial enterprise, lending itself to manipulation and abuse. Such abuse is particularly evident in Vietnam, which began engaging in ICA in the 1970s, and is now one of the leading countries of origin of illegal adoptions, primarily due to adoption scams and kidnappings conducted by unofficial adoption agencies. International Social Service (ISS), a non-profit organization that assists internationally separated families, estimates that approximately 1,000 Vietnamese children are adopted annually by families residing in the United States, Canada, Denmark, France, Ireland, Italy, Sweden, and Switzerland.
Vietnam is a State Party to the International Covenant on Economic, Social, and Cultural Rights (ICESCR). The state’s failure to curb its illegal adoption market violates Article 10 of the ICESCR guaranteeing the “widest possible [state-provided] protections and assistance” to families, particularly while they are “responsible for the care and education of dependent children.” Illicit actors taking advantage of lax enforcement of laws or nonexistent adoption regulations and familial protections have, easily and with impunity, dismantled the Vietnamese family by unlawfully taking children from their biological families. Such actions also violate provisions of the UN’s Convention on the Rights of the Child (CRC) to which Vietnam is also a State Party. The CRC provides that States Parties must: respect the right of the child to preserve his/her family relations as recognized by the law (Article 8), take measures to combat the illicit transfer of children abroad (Article 11), and ensure that ICA does not result in improper financial gain for those involved in it (Article 21(d)).
A case that recently surfaced illustrates the need for reform of Vietnam’s adoption framework. The case concerned a 2006 adoption scam of thirteen ethnic Ruc children from Vietnam’s Quang Binh province. The biological parents have unsuccessfully lobbied for information about their children’s whereabouts. They submitted complaints to authorities and openly accused the responsible organization — which operates under regulation the Quang Binh Province’s Department of Labor, War Invalids, and Social Affairs — of giving up their children for adoption by foreigners without the parents’ consent.
The 1993 Hague Adoption Convention (Convention) promulgated international safeguards and standards for the ICA process to be implemented by States Parties. According to the U.S. Department of State Bureau of Consular Affairs, the goal of the Convention’s drafters was to make adoption a last resort, and additionally “aims to prevent the abduction, sale of, or traffic in children, and [if adoption is necessary,] it works to ensure that intercountry adoptions are in the best interests of children.” A state joining the Convention must establish that it has a central authority, which will function as the authoritative source of information as well as the point of contact. This central authority must also oversee the accreditation of adoption agencies that comply with uniform standards and ensure professional and ethical practices, including the itemization and written disclosure of the estimated expenses associated with each adoption beforehand. More than seventy states are party to the Convention, including the United States.
Due to increasing awareness of child trafficking and pressure on the Vietnamese government to better regulate its adoption agencies and procedures, the United Nations Children’s Fund (UNICEF) Vietnam and the Department of Adoption of the Ministry of Justice of Vietnam commissioned a study to identify and address problems in both domestic and intercountry adoptions. The study, conducted by ISS and released in August 2010, identified inadequacy and inconsistency within the procedures for ensuring “free and informed consent” by biological parents. Accordingly, it urged Vietnamese authorities to: clarify the laws regarding parental consent for the adoption; establish an official system of data collection for children in need of adoption; assess the causes of child abandonment, relinquishment, and separation; and develop social service programs to address those causes.
In response to the study, the National Assembly of Vietnam passed a law on child adoption, which took effect on January 1, 2011. This law better considers the rights and interests of adopted children. It requires that officials handling child adoption issues must: 1) respect the child’s right to live in his or her original environment; 2) ensure the lawful rights and interests of the adopted child and the adopting parents are respected (i.e., a voluntary procedure, no sex discrimination, consistency with social norms); and 3) assure that no willing Vietnamese family can be found before permitting a non-resident adoption. Passing this new law enabled Vietnam’s Ambassador to the Netherlands, Huynh Minh Chinh, to sign the Convention on December 16, 2010. However, as of May 2011, Vietnam is still considered a “non-member” on the Convention’s official website.
Despite the enactment of the new law and its scheduled implementation, the U.S. Department of State has not lifted its ban on ICA with Vietnam. In September 2008, the U.S. suspended adoptions from Vietnam, and the most recent State Department advisory notice, issued in July 2010, asserted that “important steps must still be taken before Vietnam completes this reform process and before intercountry adoptions between the United States and Vietnam can resume.” These steps may include: decreasing fraudulent documentation or the improper issuance of official documents based on incorrect information, as was the case with at least one of the thirteen Ruc children; eliminating corruption and other official participation in illegal adoptions; and shutting down unlicensed facilities that prey upon single pregnant women by providing them support in exchange for relinquishing parental rights. If implemented, these measures, in addition to Vietnam’s accession to the Convention, will aid the success of adoption reforms and hopefully bring an end to illegal ICA practices in Vietnam.