Elizabeth Bartholet Interview, Part I

The Harvard Human Rights Journal is proud to feature its interview with Elizabeth Bartholet, the Morris Wasserstein Public Interest Professor of Law and Faculty Director of the Child Advocacy Program (CAP) at Harvard Law School. In this two-part interview, Professor Bartholet discusses the challenges facing international adoption. In this first section, Professor Bartholet discusses the ideal standards for caring for the world’s children, and the powers exerting pressure on international adoption.

Interviewer: Julia Mas-Guindal¹

The first question I would like to ask you is about your vocation. Why did you decide to devote your professional life to research and advocate for children’s welfare and international adoption?

Since I went to law school I’ve always been interested in using my career to promote social change and social reform; that’s why I went to law school. Initially I focused on more traditional civil rights issues, [such as] race relations in this country and various discrimination issues particularly in the context of employment, and my real focus on children and youth and adoption came because 27 years ago I adopted a child internationally. And that’s what led to my specific interest in this area. Once I got interested in the area I felt immediately that there was an enormous need for change in the policies because they seemed to me to make – the policies surrounding adoption and international adoption, in particular – no sense from the point of view of children.

To begin with, what do you think the standard should be for allowing international adoption?

Well I think the starting point ought to be children and their needs for a home, and if there are as there are today lots of children, millions and millions worldwide who need homes, I think the priority ought to be figuring out how to provide those homes. International adoption is one of the best ways to provide them, in part because there is a lot of discrepancy between poor countries and rich countries. There are richer and poorer countries in this world and in the poorer countries you tend to have lots of children who need homes, and relatively few adults who can provide them. That’s the very basic reason that international adoption from my point of view makes a lot of sense for children.

And then, given that kids need homes, adoption turns out to be a very successful institution for providing good homes for children. If you look at the social science on adoption, whether it’s same-race or transracial, whether it’s domestic adoption or international adoption, all the studies show adoption working really really well for children. It works best, or the children do best, when the kids are placed very young. If you look at studies of kids who are placed older, of course many of those kids are going to be troubled, but it’s not because adoption doesn’t work well, it’s because it took so long before the kids were placed in adoption that they suffered lots of damage. So adoption works really well.

Why does it work well? I think it’s pretty clear that motivation is what makes for good parents. And what you have in adoption is people who have chosen to be parents. They haven’t fallen into it by mistake, they deliberately sought it out, virtually all of them are seeking it out for good reasons, not for bad reasons, and that means they are highly motivated. I don’t think the kind of screening that goes into deciding which parents get approved does any particular good. I think it is the self-selection that has to do with people wanting to be parents.

In terms of your question, I think the standards, given the need that kids have for homes, ought to be ones that facilitate placing as many kids as possible as early in life as possible in homes. Therefore, we should have standards that allow adoption. Don’t make it too difficult; don’t make it too expensive. And standards that focus on making sure that kids get homes early, that they get freed up for adoption early – now that’s the complete opposite of current international adoption standards. Virtually all the laws and policies surrounding international adoption focus on the bad things that might happen in connection with adoption, and virtually none focus on the good things, and also, current standards never focus on the bad things that happen to kids when they don’t get adopted. Kids sit and rot in institutions and there is no focus on that. We really need to flip the assumptions around and change the standards quite radically to make them standards that are really designed to serve children.

Wouldn’t you agree that some of the biggest problems in international adoption are the legal restrictions that limit the ability to provide homes to children in need, and who is to blame for that?

I completely agree that the major problem with international adoption regulations today is that it’s almost entirely focused on restricting this institution, and making it difficult. The claim is that it’s all in the best interest of the child, but that is not true in my view because what it does is make it hard for kids to get what they most need in life, which are homes. The blame, sadly and ironically, is really to be put primarily on the organizations that call themselves the friends of children. It is organizations that have names indicating that they are the human rights/children’s rights organizations. UNICEF is at the top of my enemies list, [along with] Save the Children, and there are other names like that out there, of organizations that quite adamantly oppose international adoption. They tend to claim that they don’t entirely oppose it.

UNICEF, which is very political and tries to be careful about its reputation, likes to say that it is not entirely opposed to international adoption. It quite clearly limits international adoption, even in its official policies, to a last resort option. So they clearly take the position that in-country foster care should be preferred over out-of-country adoption. I think their actual on-the-ground policies – and I think most people who know what’s going on with international adoption would agree with this – are much more adamantly anti-international adoption than they admit. For example, they say that they don’t think children should be held in institutions, but the net of their policies, I believe, ends up relegating millions of children to spend their growing up years in institutions.

Why is that? It is because UNICEF will say the better options are in-country adoption and foster care. Well, in poor countries, for the most part, in-country adoption is not happening and there are a lot of reasons for that: partly the relative poverty of the country, partly that the children available for adoption tend to be the children of the underclass, which is often a racial minority group and the rich people in those countries often have no interest whatsoever in parenting [those] children. Often there is a strong bias, [such as] in Africa and Asia, against adoption anyway. They are very heavily into the idea of bloodlines in terms of family. So it’s unlikely that, in any near future, there will be many adopted homes in these countries. They can promote the idea that that’s better for children all they want. If they know that it’s not going to happen for children, the net is that children will end up in institutions.

Now they also promote the idea that poor people shouldn’t have to give up their kids; I agree with that. But it’s also true that we are not going to solve world poverty overnight, and that many poor people aren’t going to be able to take care of their kids. Reunification – which sounds good to everybody, let’s put kids back with their parents, they only gave them up because they were poor – that may sound good. [But] it isn’t necessarily good for kids to go find desperately poor people who might have given up their kids five years ago, who may have several other kids, who are struggling to survive, so you can say to those people “here’s your kid back.” Well they gave up the child for a reason. You can say to those people we will give you money to take your kid back, but it doesn’t mean that the child will live well. The child may be sold; the child may become effectively an indentured servant. It is easy to say that we should feel sorry for those poor parents, they shouldn’t have had to give up their kids, but putting kids back in those families is not necessarily a good solution for anybody.

Certainly, [I would like us to] solve world poverty so that poor people didn’t have to give birth having to give up their kids. But it’s not going to happen right away. And I don’t think that locking poor kids in institutions, and insisting that they grow up in institutions is going to in any way further the goal of eliminating world poverty. It’s just a symbolic gesture, easy to make because the kids can’t do anything about it. I think it’s outrageous that UNICEF and other organizations promote foster care. I mean, again, in the first place it doesn’t exist; it won’t be created overnight. But second, and even more important, there is no reason to believe that foster care in poor countries is going to work better than foster care in the United States. In the United States, we have roughly half a million kids in foster care and everybody in child welfare wants to get most kids out of foster care. They don’t think it’s a good solution. Kids in foster care typically bounce around from one foster family to another. Foster care is paid parenting. It may be better than paying staff in an institution to take care of kids but you are paying people to be parents, and most people on a commonsense basis – and if you look at the social science, it also supports this – believe that kids are better off with parents who are parenting because they want to be parents, not because they’re getting a wage to do it. Think of the risks that would be involved, in creating paid parenting foster care in poor countries, desperately poor countries where people are starving – of course if we say “we will pay you a stipend to parent,” people are going to come forward and agree to do it. And there is even more risk than there is in this country that they won’t be doing it for the right motives.

And the studies all show, that if you compare how kids do in foster care to how they do in adoption, they do better in adoption. So there’s no excuse in my view for UNICEF to be taking this position. Now they claim that foster care will be different, it will be permanent foster care in these poor countries, but they don’t come up with any reason to make anyone else believe that it’s going to be a sort of magically better form of foster care than what we have in this country.

And I think that there is no good reason for the world to look at international adoption as if it is a suspect institution. The only reason is [the] very retrograde view that children are essentially who they were born in race and geographic terms. The view that if they were born with brown skin then they are inherently brown skinned people who can only live, and should only live, with other brown skinned people. Or, if you happened to be born on this side of the border rather than the other side, you are inherently this kind of person. Well, to me it is even crazier to think that national lines have that kind of power to determine who human beings are intrinsically as compared to color lines. I don’t think either makes much sense, but national lines were mostly drawn on the most arbitrary of bases. You get civil war, and then people sit at a table and they have to decide how to carve up the map this time.

I think the only reason national lines have power is that there are sovereign nations, and sometimes sovereign nations want to hold on to their children put them in armies, [to] make their sovereign nation stronger. And I think that organizations like UNICEF that were founded in the wake of World War II were founded through negotiations by sovereign powers. It’s somewhat understandable as a matter of history why an organization like UNICEF would see itself as responsive to what it might think are nation states’ sovereign claims on their children. What is interesting here [is that] I think the major pressure for kids to stay where they are born is coming more from UNICEF, and the international NGOs like UNICEF, than it is from the sovereign powers. But UNICEF and other such organizations do sometimes appeal to sovereign pride and they do tell these sovereign nations that they can and should hold onto their children. Should as a matter of children’s human rights; can as a matter of sovereign power. I think that they encourage this attitude of governments feeling that they have an ownership right in their children and that it’s a matter of pride to assert that ownership right. UNICEF makes a country like Brazil, or Peru, or an African nation feel like they ought to hold on to their children because this is what the Convention on the Rights of the Child requires.

I also think some of the pressure to keep children in their country of origin comes from governments of various poor countries in the world at different points in time. So I’m not saying none of it comes from there. I think that there are basically three major problems in terms of the pressures that create negativity surrounding international adoption. One is UNICEF and other such international NGOs. And a second is the sovereign governments of various poor nations of the world. The third is the governments of various more privileged nations of the world. In terms of the second, I think that for poor countries governments often need to appeal to their own people to stay in power, they need to say they’re doing a good job, and one of the easy ways to make this claim is to say they are taking care of our children. “Look – we just shut down international adoption.”

So you see that at play with, for example, Haiti, when the government was in massive disarray and appeared to be doing not much of anything and appeared to be really helpless. Then came those church workers and did something that violated laws, and that’s bad, and were taking children out of the country – although I don’t think there was any evidence they were stealing them from parents or even deceiving parents. But they were getting them out of the earthquake zone, temporarily probably, and violated some paperwork laws. And what did the government do? Well, they shut it down. And I remember seeing I think the second-in-charge of the government proudly proclaiming on television, to an international audience, that we’ve shut down international adoption; we are protecting our children. Well they weren’t doing anything else to show they were in charge of Haiti, but they could do this, and maybe they felt it made them look good.

[Another example is] Russia, when the one child was put on the plane and sent back. I can remember a handful of other incidents where a Russian child was abused by an adoptive parent. Abuse of any kind, or the form of abandonment represented by putting the child on the plane, is extremely rare in international adoption – much rarer than it is in biological families in Russia or the United States. Much rarer. But when it happens, the Russian government as a matter of pride, as a matter of, I think, thinking it looks good to its own people and maybe abroad, can say things like, “Those terrible Americans, we can take better care of our children, we should not let them have our children in international adoption.”

Or take China, which is sort of in a moment in its history in the last few years where it wants to be and is a world power. It feels embarrassed about, probably, its one child policy which is part of why so many of its baby girls are in institutions. International adoption is embarrassing, so I think that’s probably why China several years ago imposed stricter regulations that said “Oh these people who are single or obese or otherwise less in our view than ideal can’t adopt.” “We are a strong nation and we can take care of our own children.” It doesn’t mean they can, or do, or that there aren’t lots of baby girls languishing in their institutions. It’s a statement about national pride.

And in my view, part of why that statement gets made in the context of international adoption as often it does, is that it’s an easy national pride statement. So it’s hard for poor nations to stand up to the United States if it involves oil or other things rich countries want, but if it’s poor children in institutions, the United States is not going to go to war or even put any pressure on a poor country. “If they really want to hold onto their poor children, we don’t really want these children.” There are some parents who want them, but the United States government is not going to fight for them in any way. If a poor country says, “Stop! We will take care of our own children,” it’s an easy [statement] to make and the government leaders feel it makes them look good in the world and to their own people.

[Now] to get to the third power that causes negativity, governments like the United States. We have over our history done a lot to keep immigrants out, and adopted kids are baby immigrants and there was a period they couldn’t come in at all. Then we amended the laws and let some of them in but it’s never been a complete-easy-open-arms thing. We do let some of them in, but if a country says they don’t want us to take their kids, or if we the U.S. feel there are some ethical corruption issues we could be accused of – [such as] allowing our parents to buy kids, or to kidnap them – it’s easy for the United States to shut down adoption in that situation because it might make us look bad as a country and it’s not doing us any good. I think that’s why we typically give in immediately if any country says they don’t want to send us their kids, and why we often put pressure on countries to shut down [international adoption] entirely if we think that there is evidence of corruption and illegalities that will make us look bad.

The Journal continues its conversation with Professor Elizabeth Bartholet in Part II of the interview, available HERE.