by Mirah Riben OpEd News.com
The buying and selling of human beings, including babies, is unlawful in every state in the United States and most of the world. Who then would proclaim in regard to adoption:
"Baby buying is generally not thought of as a serious evil in today's world in other contexts. Commercial surrogacy is the institution in which true baby buying takes place systematically. Surrogacy contracts specify that the woman who provides pregnancy and childbirth services, and often her egg as well, will receive money in exchange for turning over the baby born, and terminating her parental rights. Commercial surrogacy is flourishing in the United States and many other countries" (1)
Certainly an attorney would know that baby buying and selling is illegal and an attorney who specialized in adoption would condemn baby sellers. Why then would Elizabeth Bartholet, Harvard Law Professor who is a fervent proponent of child adoption and supports attorneys who practice adoption family law defend baby buying?
Like many of the claims put forth by Professor Bartholet, this one is based on intentionally misinterpreted facts and statistics. Using the questionable practice of surrogacy to justify an unquestionable wrong--the buying and selling of babies for adoption--is reprehensible. The specious argument that baby buying is acceptable because surrogacy is, is absurd. Far from "flourishing", surrogacy is in fact permitted in only six U.S. states, eight states allow it with restrictions, while nine states outlaw it, some, such as D.C. and Michigan punishing violators.
Surrogacy, where allowable, is largely unregulated, controlled mainly by fertility doctors, agencies and clinics that many of which do not adhere to guidelines. The lax atmosphere "raises vexing ethical questions."(2) Hardly a model to emulate.
Internationally, surrogacy contracts are unlawful in Australia, Canada, the Netherlands, and the UK. In March 2008, the Science Council of Japan proposed a ban on surrogacy and said that doctors, agents and their clients should be punished for commercial surrogacy arrangements. In India surrogacy has become a major industry and mothers participating in surrogacy programs are said to be cared for with advanced medical, nutritional, and overall good care. However, bioethicists remain concerned that Indian surrogates are exploited by being paid poorly for their maternal services called "rent-a-womb" in a country with a comparatively high maternal death rate.
Who is Professor Bartholet?
Professor Elizabeth Bartholet is a Morris Wasserstein Public Interest Professor of Law at Harvard Law School and Faculty Director of their Child Advocacy Program. Bartholet is author of two books on adoption(3) and also an adoptive mother who "spent three months in Lima for each adoption, enduring" what she describes as "the most challenging experiences of my life." Nursing each child through "terrifying illnesses" Bartholet "agonized through endless sessions with police, social workers and courts. I fought off mysterious threats to remove the children who had become mine in every way except the law, threats that hung over us until the day we flew home"."(4) When it comes to adoption, it appears that Bartholet considers her personal desires and entitlement, when in conflict with the law of the land, the greater of the two. She carries this passion fervently into her advocacy for all who wish, and can afford, to adopt privately, protecting a non-existent "right" to adopt an unrelated child in disregard of every child's right to know and be cared for by his or her own parents, whenever possible.
Despite her self-portrayal as a child advocate, Bartholet's greatest concerns regarding barriers to adoption are for paying clients seeking children and those who profit from child redistribution. She and the organizations she is affiliated with represent attorneys who specialize in adoption and whose livelihoods depend on adoption placement fees. Adoption attorneys are no more vested in protecting the best interests of children than divorce attorneys are vested in saving marriages. Their obligation is to protect the rights of their paying clients who hire them to obtain a child, regardless of how the child is obtained and regardless of the outcome for the children involved.
Bartholet is associated with, and spokesperson for ACT for Adoption, The Center for Adoption Policy (CAP), and the Harvard Law School's Child Advocacy Program (CAP). By forming multiple Internet organizations, Bartholet attempts to make support for her mission appear to be widespread and supported by "experts" in the adoption community, when in fact they oppose internationally recognized child's rights advocacy organizations for "having a lock on the child human rights position."(5) Such radical positions are not supported by and in some cases in conflict with the Evan B. Donaldson Adoption Institute (EBDAI), the Child Welfare League of America (CWLA), Ethica and other widely recognized authorities of ethical adoption practices.
ACT for Adoption (ACT) was mobilized in 2008 "to communicate with the White House, Members of Congress, government agencies and the press to educate and advocate for legislation, policies and administrative procedures supportive of adoption." ACT appears to exist in name only acting as the PR arm of The Center for Adoption Policy (CAP) and Harvard Law School's Child Advocacy Program (CAP), the latter founded and directed by Prof. Bartholet for the purpose of promoting international adoption. With no Internet site or physical address ACT disperses press releases regarding the pro-adoption stances and efforts of CAP and CAP. These announcements are sent from ACT with an ACT logo at the top of the page and a "reply to" address of email@example.com.
The Center for Adoption Policy calls itself "a pre-eminent legal and policy institute engaged in adoption issues." It was founded and is and directed by Diane B. Kunz and Ann N. Reese. Kunz practiced corporate law for seven years and is Associate Professor of History at Yale University. Reese spent over 25 years in a career in finance with ITT, Mobil Oil, Union Carbide, Bankers Trust and Clayton, Dubilier & Rice, Jones Apparel Group, Kmart and Xerox. She has an MBA from New York University and a BA from the University of Pennsylvania. Reese is a director of Their only connection to, or "expertise" in adoption, is that Kunz is the mother of eight children, four of whom were born in China and Reese is the mother of five children, two of whom were born in Romania. Their website reports no source of funding or non-profit status for CAP.
ACT, CAP and CAP support their pro-adoption agenda in part by creating newspeak such as their newly coined term "unparented children"--which they capitalize for further effect--in order to encourage the adoption of children of living parents, as they did in supporting Madonna's adoptions while recognizing that International adoption "has come under fire recently from UNICEF" because of corruption and baby selling. They also use language such as a need to eliminate "barriers that hinder children from realizing their basic right of a family and ways they might act to eliminate them" without any consideration of a child's foremost basic right to have his family receive the resources they need to remain intact or reunify.
Bartholet is also involved with Both Ends Burning and organization formed by Craig Juntunen who adopted three children from Haiti. The singular goal of this group is to promote inter-country adoption with the hope of reaching a quota of 50,000 adoptions per year by 2010. Never mind any attempt to resolve the issues that might necessitate familial separation and loss.
Lies and False "Statistics"
"It's not really true that there are large numbers of infants with no homes who either will be in institutions or who need intercountry adoption," notes Alexandria Yuster, a senior advisor on child protection with UNICEF.(6) "We're concerned with the commercialization of vulnerable children. It gives an incentive to intermediaries to look for the kind of children these families most want to adopt"Adoption is supposed to be about finding homes for children, not finding children for families."(7)
Bartholet knows this yet proliferates lies, intentionally and deliberately using false statistics on the number of "orphans" globally. CAP and CAP repeatedly quote a figure of 143 million orphans--a number well known to them to be extremely overinflated inasmuch as 88.7% of children in orphanages worldwide are not orphans but have at last one living parent and are not eligible for adoption.(8) Many families in under-developed areas of the world use institutional care temporarily and to obtain medical care they cannot otherwise afford. Both of Madonna's adoptions--supported by ACT--are explicit examples of children in orphanages, many of whom have extended families that could care for them, if provided with the support to do so.(9)
In Mozambique, when funding ran out for institutions, 80% of children were able to be reunified with their families, according to Jini Roby, attorney and social worker who researches and teaches global issues of children at risk at Brigham Young University, Ninety-eight percent of caregivers given assistance that was more cost effective than institutional care were able to keep their families together until children reached adulthood.
With nearly 90% of the 143 million children residing in orphanages not able to be adopted, that leaves slightly less than 1.4 million children. Bartholet also knows, however, that 95% of all institutionalized children are over five years of age, and many have special needs, while those being adopted are under five.(10) U.S. visa statistics validate that almost 90% percent of all American adoptions are for children under the age of 5, not the children "languishing" in orphanages. The breakdown is 46% are under a year; 43% 1-4 years; 8% 5-9 years; 3% over 9.
The international adoptions she promotes are not helping the children who need it the most. Holt International found that most children in care in Cambodia, for instance, were over the age of 8 and therefore ineligible for international adoption. Only 132 children in institutions were one year old or younger--fewer babies than Westerners adopted every two months.
Researchers from the University of Liverpool found that EU countries with the highest rates of children living in institutions and high numbers of international adoptions did not reduce the number the number of children in institutional care but attributed to an increase. The study found that people in countries such as France and Spain are choosing to adopt healthy, white children from abroad rather than children from their own country. Similarly, more that one hundred thousand children in U.S. foster care who could be adopted are ignored by Americans who adopt internationally.
Reducing international adoptions allows those within the country an opportunity to adopt without the insurmountable competition of outside dollars. International adoption creates barriers to domestic adoption both in the "sending" and "receiving" counties.
In Direct Opposition of Fact
Bartholet, who has said that "heritage is over-rated"(11), posits that:
"International adoption is under siege, with the number of children placed dropping each of the last several years, and many countries imposing severe new restrictions [against kidnapping, stealing and corruption]. Key forces mounting the attack claim the child human rights mantle, arguing that such adoption denies heritage rights, and often involves abusive practices. Many nations assert rights to hold onto the children born within their borders, and others support these demands citing subsidiarity principles. But children's most basic human rights, at the heart of the true meaning of subsidiarity, are to grow up in the families that will often be found only in international adoption. These rights should trump any conflicting state sovereignty claims [emphasis added]."
Only international adoption can provide needy children with caring families?
With this belief, ACT announced in November 2009 that CAP and CAP had been granted a hearing before the Inter-American Commission on Human Rights to present their concerns about a "dramatic decrease" in international adoptions, claiming that the closing of Guatemalan adoption in the wake of proven kidnappings for adoption, violates the human rights of children. (12) Bartholet's testimony attacked the principle of heritage and placed international adoption as a priority second only to a child remaining with their family, totally dismissing and discounting domestic adoption, creating an illusion that cold institutional care is the only alternative.(13)
Professor Bartholet's hyperbole includes unfounded claims contrary to fact such as: "Shutting down international adoption programs in Guatemala deprives thousands of children per year of the chance to grow up in nurturing homes, rather than life-destroying orphanages. That's an evil that should count for more."(14) A lesser "evil" than baby selling, a far more serious and insidious, universally punishable felony?
Yet in Guatemala--as Bartholet well knows--that 80% of children adopted in 2006 were under one year of age.(15, 16) Older children and children with disabilities are left behind as the attorneys represented by ACT, CAP and AAAA help fill a demand for babies. In fact, 98 percent of U.S. adoptions from Guatemala were babies who had never seen the inside of an institution were signed over directly to a private attorney who approved the international adoption--for a very considerable fee--without any review by a judge or social service agency.(17)
In Whose "Best Interest"?
ACT is right on target when they state that children being dislocated from their families "have no seat at the policy table, and no voice." Their claim, however, that their pro-adoption position speaks for or represents the children whose custody is being transferred assumes that children want advocates who support adoption more than they desire helping their families overcome temporary, non-endangering problems allowing them to remain intact.
No one disputes that children who are truly orphaned and have no extended family to care for them properly, require alternative care. There is also little dispute by the majority of child advocates and adoption experts that international adoption is ripe with corruption, exploitation and trafficking of children.
Few adoption related businesses, organizations or practitioners can match the record of Save the Children which spent 92% on services and just 4% on fundraising and another 4% on management and all other expenditures. These are the facts that need to be taken into account when weighing motivation in regards to adoption policy decisions. Profit motive too often gets in the way, exploiting families and crisis and commodifying their children.
Bartholet, while promoting and encouraging the adoption of children allegedly "languishing" in orphanages, and bemoaning any reduction in the number of Americans adopting internationally, at the same time--in the ultimate irony--defends allowing foreigners to adopt to adopt American children. The justification for the exportation of babies out of the U.S. for adoption is based on a claim that Americans will not accept inter-racial adoptions despite the fact that twenty thousand Americans adopting transnationally per year.
Americans have been adopting transnationally and transracially since the 1950s and continue today, adopting from African nations such s Ethiopia. The transfer of custody of an American born child to an unrelated person of another nation is impossible to justify as being in any child's best interest and is in opposition to all ethical efforts to find placements within the child's country of birth before intercountry is sought. Such baby brokering is in the interest only of those able to pay for children and those willing to receive payment for the purchase of a human being; those who agree that "baby buying is generally not thought of as a serious evil in today's world."
Agreement and Disagreement
There are other adoption profiteers who share Prof. Bartholet's views. One such person is Candace O'Brien, Esquire operator of AdoptInternational who laments that "UNICEF has been waging war against international adoption for many years" and calls their advocacy "tough and effective pressure tactics and lobbying" which effectively serve to close programs completely or almost completely to foreign adopters belies a misguided, unrealistic and out of touch policy contrary to the best interests of hundreds of thousands of legitimately orphaned and abandoned children around the world."(19)
O'Brien is understandable upset with the UN's support of the Hague Convention on International Adoption's regulations. Her agency, AdoptInternational began as a for profit and changed over to not-for-profit in an attempt to become Hague accredited. However, their application was denied, at least in part for making false claims on the agency website that it was accredited when it was not.
But not all attorneys in the field of adoption agree with this virulent pro-adoption stance, and especially do not accept false allegations and the intentional distortion of data to support one's agenda. She has been taken to task by her own colleagues on her blatant disregard of facts in regards to this issue of the number of orphans needing adoption as well as other facts about international adoption. Johanna Oreskovic, who holds a J.D. from the University at Buffalo Law School, where she taught a course on domestic and international adoption and Trish Maskew, a consultant to the Permanent Bureau of the Hague Conference on Private International Law concluded:
"Bartholet's argument is a factually unsupported, analytically simplistic justification for what is, in reality, the profoundly problematic institution of international adoption. She does not address any of the complexities involved in determining the true number of adoptable children. She offers no analysis or evidence in support of her claim that existing laws provide an effective safety net against abuse. She underestimates, perhaps radically, the true incidence of adoption abuses" It is irresponsible to begin the analysis, as Bartholet does, by looking at the end of the international adoption process." (20)
Adam Pertman, Exec. Dir., EBDAI(21) and author asks:
"Why aren't adoption professionals screaming bloody murder"distancing themselves from " their unethical colleagues?
". . .The American Academy of Adoption Attorneys as well as individual lawyers, should be holding press conferences and passing resolutions and demanding disbarment hearings, for example, when colleagues engage in egregious behavior."
Bartholet correctly notes that "our adoption system has failed to live up to even its own limited vision" to protect children."(22) She is, however, totally wrong however to condone, justify or even accept baby buying and selling babies.
Viewing adoption from the perspective of those demanding babies and those wanting to profit from placements, Bartholet sees the position of UNICEF and other child advocacy NGOs who offer "alternatives to international adoption [such as] support for poor parents, foster care, and in-country adoption as "barriers to adoption." Bartholet's concern for those seeking to adopt----into and out of the U.S.--outstrips any concern for anything else and causes her to downplay, and defend, known abuses and illegalities. Baby buying, selling and trafficking for adoption is illegal, repugnant and immoral. Around the world, rings of thieves steal babies--some at gunpoint, some by drugging mothers--falsify documents declaring children abandoned, and sell them to orphanages, victimizing mothers and commodifying their children in commission of violent felony offenses.
Those planning to adopt need to do due diligence to be certain they are not part of the problem and they need to know that the attorneys and other professionals they hire to assist them in their desire to adopt are equally vigilant against partaking in anything untoward. No one wants to discover, as some have,(23) that the child they adopted was obtained illegally or unethically, and in fact many are "calling for more transparency, because no parent would want a stolen child."(24)
Oreskovic and Maskew note that: "We cannot responsibly conclude that a child must be adopted internationally before we know how the child got to the orphanage, where his or her parents are, and whether the cause of the family separation is permanent and cannot be remedied in a less radical manner than moving the child from its original family and culture to another."
Bartholet's support of baby buying as something acceptable is sending shock waves throughout the adoption community. Adoption practitioners concerned about their own reputations and referral business need to clearly distance themselves from this position and stand with those working such as Parents for Ethical Adoption Reform (PEAR), EBDAI, and Ethica to maintain adoption as an ethical process with integrity and transparency.
Many industries and institutions--pharmaceuticals, tobacco, law enforcement-- have been criticized, faced scandals and attacked from within by whistle blowers. Those within these industries can chose to deny that abuses have occurred, respect some code such as the "blue wall of silence", or welcome the investigations because their hands are clean. Driven by her ethics and morals, Ina Hut, upon resigning in disgust as director of Wereldkinderen (World Children) the largest adoption agency in the Netherlands recognized that "would-be parents have strong desires, and I understand that. Everybody has the right to want children," she said, adding: "but you don't have the right to children. Children have the right to parents. The right to children doesn't exist on this planet." She further recognized that it "became clear that in the debate around international adoption it is not in the interests of children" but in the interests of the would-be parents, " and also in the commercial interests ..."
Adoption practitioners must find their own moral compass and perhaps consider a different, albeit profitable, area of law that is less questionable. American adoption attorneys should applaud those who are working to eradicate illegal and unethical practices and "eliminating the greedy lawyers"(25) as unimportant and lesser evils than buying babies, because policing the illegal baby brokers will restore faith in those who are committed to ethical adoption practices.
Professor Bartholet is a zealot for the right of adoption attorneys to continue make a living brokering babies -- even kidnapped and stolen ones. She is as concerned for the children being peddled as the Ford motor company was concerned about the consumers maimed and killed by the Pinto. She is as slick those who represented baby formula giant and sent saleswomen dressed in nurses uniforms to convince third world mothers to stop breastfeeding and use formula they couldn't afford, harming the very children they purported to be helping, even killing some babies whose indigent mothers watered down the formula. All to increase their bottom line.
Ethical attorneys and legislators with an ounce of morals, or even simply concern about their reputations, would do best to distance themselves from this renegade, dissociating from a supporter of baby buying.
(1) Bartholet, Elizabeth. (2009) "International Adoption: The Human Rights Position." This is the pre-peer-reviewed version of the article "International Adoption, The Human Rights
Position," which will be published in final form in Global Policy, Issue 1, January, 2010.
(2) Saul, Stephanie (2009). "Building a Baby, With Few Ground Rules" New York Times, Dec 12. click here=MYWAY&ei=5065
(3) Family bonds: adoption and the politics of parenting (1993) and Nobody's children: abuse and neglect, foster drift, and the adoption alternative (2000)
(4) Bartholet (2009)
(7) Wingert, Pat (2008) "When There's No Place Like Home: Children's advocates can't agree on how much to emphasize intercountry adoption as a solution" Feb 4, Newsweek http://www.newsweek.com/id/105531
(8) The Joint United Nations Programme on HIV/AIDS (UNAIDS), the United Nations Children's Fund (UNICEF), and the United States Agency for International Development (USAID). "Children on the brink 2004: a joint report of new orphan Estimates and a Framework for Action" data.unaids.org/Publications/External-Documents/unicef_childrenonthebrink2004_en.pdf
(9) Holt International Children's Services for USAID (2005) "Cambodia Orphanage Survey 2005" September.
(10) Graff, E. J (2008) "The Lie We Love" No/Dec Foreign Policy http://www.foreignpolicy.com/story/cms.php?story_id=4508
(11) Spoken at the "The Sixth Annual Adoption Policy Conference" at the New York Law School. Friday, March 6, 2009. The conference was sponsored by The Center for Adoption Policy, The Child Advocacy Program at Harvard Law School, and The Justice Action Center. During the same conference, Prof. Bartholet also said she preferred the phrase "baby selling" over child trafficking for adoption.
(12) http://adoptionresourcecenter.org/index.php?option=com_content&view=article&id=24 &Itemid=202 or http://tinyurl.com/ACTPR11-09
(13) click here=1102810860 366
(14) Bartholet (2009)
(15) Adoptive families magazine Guatemala adoption statistics http://www.adoptivefamilies.com/guatemala_adoption.php
(16) Jennifer Banks, (2004) Note, The U.S. Market for Guatemalan Children: Sugges-
tions for Slowing Down the Rapid Growth of Illegal Practices Plaguing Interna-
tional Child Adoption, 28 Suffolk Transnat'l L. Rev. 31, 40 (stating
that, "[i]nternational adoptions comprise ninety-five to ninety-eight percent of all
adoptions of Guatemalan children and virtually all of these adoptions take place
through an extrajudicial notary system").
(18) Bartholet (2009)
(19) O'Brien, Candace (2010) International Adoption: Unicef's and other critics war against international adoption. 411Mommy Feb 20. click here'-war-against-international-adoption/
(20) Oreskovic, J. and Maskew, T. (2009) "Red Thread1 Or Slender Reed:
Deconstructing Prof. Bartholet's Mythology Of International Adoption" Buffalo Human Rights Law Review Vol. 14, Jan 13 http://www.ethicanet.org/redthread_slenderreed.pdf.
(21) Pertman, Adam (2000) Adoption Nation,: How the Adoption Revolution Is Transforming America. Basic Books, pp 193, 195
(22) Nobel, Scott (1997) "Adoption: Minnesota's Policies Slow Child Placement"
(23) The Hemlseys: http://tinyurl.com/72s7kw; Desiree, who was told be her adopted daughters that they were stolen from their mother and think how you would feel being a party to something that despicable in the name of doing good: fleasbiting.blogspot.com;
"Meet The Parents: The Dark Side of International Adoption";
(24) Laparlière, Murice. (2009) "Money plays too big a role in adoption"
Radio Netherlands Worldwide Aug. 288. http://www.rnw.nl/nl/node/20498
A response to Elizabeth Bartholet Journal article by R. Richard Banks; Yale Law Journal, Vol. 107, 1998 here.