How can we make adoption work in the child’s best interests?

FOR AND AGAINST

Ihor OSTASH, People’s Deputy of Ukraine, Foreign Affairs Committee deputy chairman, AND Vice President of the OSCE Parliamentary Assembly:

“Currently Verkhovna Rada is considering the bill On Ukraine’s Accession to the Convention on the Protection of Children and Cooperation in Respect of Inter-country Adoption. Our ideology must be above all aimed at the adoption of children by citizens of Ukraine. And this is the right approach. Yet statistics show that the number of children adopted by Ukrainians is declining every year. In 2002, nearly 24,000 orphans were registered in Ukraine. The UN Convention on the Rights of the Child emphasizes that everything possible should be done for the child to be placed in a family. As for the arguments in support of joining the Hague Convention, this document will enable Ukraine to participate in a multilateral process and cooperate with all fifty states adkering to that convention. It also envisions cooperation with nonmembers, to which it applies the same standards as those envisaged for the adhering to the convention. I think if Ukraine ratifies it, a special authority will be created to work within the international system. The multilateral mechanism will make it possible for us to improve as much as possible degree the process of the adoption of Ukrainian children by foreigners. As for the arguments against signing the convention, they are mere formalities ensuing from the legislation in force in Ukraine. The issue is that under Article 216 of our Family Code, any commercial intermediary activities in the adoption process is forbidden. This runs counter to Article 32 of the convention, which envisions fees for those who administer the adoption process. Simultaneously, having analyzed the Hague Convention of 2000, I saw that the problem of reimbursement is relevant for all the signatory states. Subsequent recommendations have been made for the transparency of procedures involving payment for adoption services. Moreover, an attempt was made to recommend a certain list of reputed legal specialists, who could cooperate with the parties to the convention.

“Other options are possible, such as amending the current Family Code or stating our reservations regarding our interpretation of individual convention articles. As we see, there are ways to solve the legal conflicts.”

Yevheniya TKACHENKO, General Director, Magnolia-TV Television Company:

“We complain that adoptions within Ukraine are very rare and blame this on the economic situation in our country. Yet there’s no denying that the state has no unified information policy to popularize adoptions. Our television company attempts to do something single-handedly, but our efforts are a drop in the ocean. We would like to see some funds allocated for popularization of domestic adoptions.”

Svitlana DIADCHENKO, supervisory board chairman, Society of Equal Opportunity Nationwide Public Organization:

“I represent a public organization that protects children’s rights and monitors their living conditions in children’s homes and boarding schools. Despite all our state’s efforts to improve the condition of orphans, they are not enough to create conditions adequate for their development. Referring to the Convention on the Rights of the Child, I would like to remind you that the international community understands that every child should grow up in a family environment. Every year the number of children without families is rising in Ukraine. When the question arises of how we should treat the convention, the children’s interests must be taken into consideration. Whether we like it or not, our children will continue to go abroad, where they can have good conditions secured for them. After all children should not be hostages to our inability to create a functional system to oversee and defend their rights.”

“Will Ukraine’s accession to the Hague Convention and legalization of adoption by foreigners mean Ukraine’s recognition of its inability to help orphans?”

Yevheniya CHERNYSHOVA, Director of the Child Adoption Center, Ministry of Education and Science:

“The 1989 UN Convention on the Rights of the Child states that every child has the right to a family. The 1993 Convention On the Protection of Children and Cooperation in Respect of Inter-country Adoption that resulted from the Hague Conference on International Private Law sets forth a major principle: international adoption will be considered only when all possibilities to adopt the child in his or her home country have been exhausted. The Child Adoption Center, which has worked in Ukraine since 1996, is the only central authority that performs all procedures of inter-country adoption. Ukraine’s accession to the Hague Convention will not begin the inter-country adoption process in Ukraine from scratch, but will only emphasize that the country has joined the uniform international legal space on this issue. Meanwhile, time will show whether the number of adoptions rises or falls after Ukraine signs the Hague Convention. It will be recalled that accession to the convention was envisioned under the Presidential Order On Additional Measures to Implement the Children of Ukraine National Program Until 2005. What will the Hague Convention give Ukraine? First, Ukraine’s recognition of international principles and regulations for the protection of adopted children’s rights will be confirmed on the international level. Second, the required groundwork will be laid for adequate international and intergovernmental monitoring of the conditions created for adopted children. A system for cooperation among central authorities in the sphere of inter-country adoption will be established introduced. And an opportunity will be created for oversight of non-governmental organizations providing services to foreign adoptive parents. At the same time, I would like to note that the ban on commercial intermediary activities in adoption under Article 216 of Ukraine’s Family Code does not in fact run counter to Article 32 of the convention. One must distinguish between commercial middleman activities in adoption and essentially professional activity connected with the provision of various services (interpreting, legal counseling, representation of the adoptive parents in government bodies, and so forth), which is envisioned in Article 32 of the convention.

“Thus, adapting our legislation to the convention’s requirements will mean a fundamental revision of the requirements for government bodies and non-governmental organizations and creation of a new system of cooperation among states to prevent abductions and trade in children. The convention also affects all adoptions in the signatory states. We emphasize this, because currently the decisions of Ukrainian courts are not recognized in some countries. As a result, in their home countries adoptive parents must undergo one more procedure to confirm the decision of Ukraine’s justice system.”

Ihor OSTASH:

“Let me add that I have adoption statistics for 2002: Ukrainian nationals adopted 1,760 children, foreigners 2,341. The difference is significant; it means that all attempts to have these children adopted by Ukrainians had in fact been made. I think it is crucial that the very process of monitoring be taken to the international level. Incidentally, the convention does not prohibit signing relevant bilateral agreements. For example, we are now working on a bilateral agreement with Italy. It means that aside from the multilateral mechanism of the convention bilateral agreements between countries will be in force. This is no doubt a major gain for the protection of the children’s rights.”

HOW TO LEARN THE TRUTH

“It is known that sometimes even an adult cannot always protect his rights abroad. How reliable is the state mechanism to protect the child after adoption?”

Yevheniya CHERNYSHOVA:

“The Foreign Ministry is responsible for monitoring those who adopt. Government decrees envision that if a person wants to adopt a child, that person must undertake a serious commitment before the child’s home country. For the first three years the new parents must submit annual reports on the child’s welfare. Incidentally, a cabinet decree of August 28, 2003, On the Procedure of Keeping a Record of Children that Can Be Adopted and Persons Willing to Adopt and Monitoring the Observance of Children’s Rights after Adoption, requires both foreign and Ukrainian adoptive parents to submit reports. Every consulate employs its own monitoring methods. Meanwhile, the Adoption Center receives information from the Foreign Ministry and summarizes it.”

“Is it possible to return a child to Ukraine if his or her rights have been violated?”

Yevheniya CHERNYSHOVA:

“We have this possibility. Moreover, there are cases when adoptions are invalidated. This happens for various reasons, but I want to stress that such cases are isolated in foreign families. Last year 57 adoptions were cancelled, of which only four were adoptions by foreigners, with Ukrainian citizens accounting for the rest.”

Valentyna STRILKO, Yaroslav the Wise International Educational Fund:

“In the early nineties I worked as deputy chairman of the Kyiv Oblast Administration. The law On Adoption had not yet been passed, and I saw all the complexity of the situation firsthand. Few children were adopted in Ukraine, as now. Yet foreigners showed great interest in Ukrainian children but refused to allow oversight of such children after adoption. I proposed potential foreign parents the adoption of children only when no Ukrainians wanted to adopt them. I also demanded that they cover the travel costs of a Ukrainian representative, who would monitor the child’s welfare. In some cases foreigners refused to adopt children under such conditions. Moreover, before 1997, when Ukraine did not yet have laws on inter-country adoption, orphans were taken abroad on documents issued in children’s homes. For this reason I established strict control over adoption procedures. As a result, some foreigners traveled to Kyiv or Lviv, where it was easier to adopt a child. I dwell on this in so much detail because I want to draw parallels with what is happening today. Now we have advanced legislation and centralized adoption procedures, but the problem of monitoring the child after adoption remains unsolved. Such monitoring is the responsibility of our consular services and the Foreign Ministry. But in my view, all this accountability is fictitious. And not because people neglect their duties. Small staff and inadequate funding prevent them from visiting adoptive parents and checking the children’s living conditions. Moreover, they can be simply denied access to the families, since Ukraine has not signed the Hague Convention, which provides for this right.

“Tell me, what’s a report written by the adoptive parents themselves worth? Even if he or she is abusing our child, the report will be glowing. The lack of adequate oversight leads to horrible things. For example, recently an adopted fourteen-year-old Ukrainian girl was thrown out on the street in a foreign country, because she got pregnant by her foster brother. She has abandoned her child and is now in a monastery. That is why I think that joining the Hague Convention today is vital, even though some lawmakers and representatives of the public are wary of the possibility of adopting children for money via intermediary organizations, which is envisioned by the convention. However, under the Convention only organizations authorized for this purpose will offer such services. Consider the information about organizations that are not certified and lack experience in the adoption sphere but still manage to find loopholes in our legislation. At some web sites one can read the following: ‘We have the exclusive rights in a recently created adoption fund and our own programs in Russia, Ukraine, and Kazakhstan. A full package of adoption services costs between $15,000 and $17,500 plus travel costs. Compare this with $25,000, which is what an adoption costs in the USA, and the difference will be your legal services bill.’ Later they find partners in the US, obtain their commission to represent their legal interests, and trade in children.

“What does the Hague Convention foresee? Under it, should anything unfortunate happen to our child, agencies accredited at our center and having the appropriate licenses engage the mechanisms for the protection of our children. We can also demand reports on the condition of our children from such agencies. Unless we join the Hague Convention, we will have to sign separate agreements with all countries to introduce an efficient mechanism to protect our children abroad.

“What are we in fact doing today? I have learned that Verkhovna Rada has passed in the first reading the bill On the Creation of Legal Conditions for the Social Protection of Orphans and Children Deprived of Parental Care, introduced by People’s Deputy Feldman. This document in fact provides for the decentralization of the adoption mechanism. It means that if one district has effective leadership that keeps the situation under control, then children would be adopted en masse elsewhere. This bill also envisions the liquidation of orphanages schools and their replacement with family-type foster homes, which is simply impossible today. For Ukrainian nationals to be able to adopt our orphans, we must trim the list of diseases that prevent adoption. At one time I tried to understand why so few children are adopted in Ukraine. I visited an orphanage to see everything firsthand. It turned out that, first, some of them are reluctant to give children away because they fear for their jobs. Second, they find it advantageous to make long lists of diseases. This scares off Ukrainians, but little affects the decision of foreigners, because they know better which diseases are quite easy to cure. When the Kyiv Oblast Administration began to address these problems, in one year more children were adopted by Ukrainians in the oblast than during the previous seven.”

Ihor OSTASH:

“I would like to add that the Hague Convention in fact creates a realistic international adoption mechanism. Article 14 reads that persons who permanently reside in one state and want to adopt a child who permanently resides in a different state party to the convention must apply to the relevant central authority in the state of their permanent residence. Thus, we in fact have a very serious mechanism for checking the potential parents, since relevant officials join this process is in the adoptive parents’ home country. Additional insurance might be the article on a probation period provided for in Article 20.

“The issue of centralization and decentralization has been just broached. There in fact exists a great danger that we could fall back to where we started if we follow the road of decentralization. The convention acts as a safeguard in this case, since its Article 22 envisions the creation of a single state authority to deal with adoptions. In addition, if we speak of the danger of illegal financial schemes, we should understand that in this case a government structure will be functioning in Ukraine. Thus, commercialization of this process is actually out of the question, for everyone knows about the requirements for government officers.

“Mrs. Strilko has mentioned the lack of any real protection of children from our diplomatic offices abroad. I would like to say in turn that this is not an isolated problem and should be addressed together with the whole complex of problems our compatriots face abroad. Consider a classic example. The Ukrainian Embassy in Portugal opened only in 2002, by which time nearly 100,000 Ukrainians worked there. In my view, today a top priority for the Foreign Ministry should be the protection of all our compatriots abroad, children included. Meanwhile, it is impossible to protect people when only one consul and two or three staff members are working in a foreign country. Hence, first of all the policy of the Foreign Ministry must be revised, so that monitoring the observance of our compatriots’ rights abroad would become purposeful work and not a fiction.”

RIGHTS AND MONEY

Iryna KUCHERENA, head of the Department for Monitoring of the Observance of Juvenile Rights, Office of Ukraine’s Prosecutor General:

“Ukraine has almost perfect adoption laws, while the Hague Convention is a step toward further improvement of the whole legislative system. First, it will oblige our lawmakers to pass much-needed laws. Unfortunately, our lawmakers still haven’t endorsed the procedure of returning from abroad the children who are staying there illegally for some reason. After signing the convention, we will not be able to circumvent the norm regulating the return of the children or envisioning an alternative. Under the convention, the child would be either readopted (this issue is yet to be regulated), be placed with new foster parents, or return to Ukraine. The latter option is no doubt the worst of all. No orphanage will ever replace a family for a child who has lived abroad for some time and got used to better conditions, even if it receives significant state funds. I cannot but agree with the Verkhovna Rada representative that of all states parties to the convention our legislation is the most adapted to this convention. Last year I personally analyzed the legislation in force in the countries that participate in the adoption process in Ukraine. The US laws turned out the least adapted. Why? Because there it is impossible and will perhaps never be possible to determine the central authority that deals with adoptions. We have all this decided. Perhaps we will only have to review the competence of the adoption center and reinforce its influence in the international sphere. Another crucial thing in the convention is Article 32. Why is everybody wary of commercial services? Do you really think that it is easier for the General Prosecutor’s Office to deal with those individuals and organizations that are involved in this activity illegally? I would never mind an organization that has obtained permission from a government authority to provide certain services, do the paperwork, make transfers, accompany families, and provide transport services, on condition this organization charges normal fees for such services envisioned by the convention. If someone offers certain services, makes money, and pays taxes, that someone is a participant of all the legal relations in force in the country. Simultaneously, I treat with suspicion all those whose noble impulses drive them to provide allegedly free adoption services to foreigners. Why are not these noble impulses at work with respect to potential adoptive parents among Ukrainian nationals? Thus, if we legalize the intermediaries, subordinate them to a central authority that would select the participants of the adoption process and determine their rights and duties, it will be much easier for us to track down the con artists.

“Moreover, I want to stress that there is no trade in children in Ukraine. Only information about children is traded. It is groundless to talk of adoption for the purpose of obtaining transplants, since medical experts have concluded that children’s organs are unsuitable for transplantation. Granted, sometimes a child is adopted to be later resold in a foreign country. There are cases when older girls are adopted and used as unpaid housemaids. All of this exists, but the facts are unsubstantiated. I’m angered when I hear that our children are abused abroad. Only early this year four cases were reported of adopted children murdered by Ukrainian nationals. This is family violence. It is a crime to keep children in our orphanages. It is genocide of the nation. If you look into what our adopted children are diagnosed with (diagnoses are not faked anymore, as there is no need to), then the issue of the loss of the nation’s gene pool becomes irrelevant. In the case with the pregnant Ukrainian girl, it was not proven that the pregnancy had been the result of abuse. Another thing is worrying: she has abandoned her child. It seems to me she has it in her genes, since in our children’s homes we see a sequence of generations: a year after they begin their independent life many former wards leave their babies in the next best children’s home.

“Thus, the adoption of the convention and even its Article 32 will not jeopardize anyone. Now there is much talk of money laundering. The Convention will make it possible to bring out of the shadows the revenues of intermediary companies that have been operating in Ukraine since 1996.”

“All scandals surrounding adoptions have perpetuated a stereotype that adoption in Ukraine is a very corrupt procedure. Perhaps the only way is to make the adoption procedure transparent and open?”

Mary Kay L. CARLSON, Consul General of the US Embassy in Ukraine:

“The Department of State of the United States considers the welfare of its citizens and children they adopt its highest priority. Our country signed the Hague Convention, and we do have a central authority, which is called the Office on Children’s Issues at the Department of State, established in 1994. It is true that the United States is a large country with a federal system, which is rather complicated, but we are moving forward to meet our obligations, and we hope that we will completely ratify the Hague Convention by the end of 2005.

“The mechanism of inter-country adoption is a wonderful means of providing a loving and safe home for a child. In order to make inter-country adoption work to the mutual benefit of the parents and children, the procedure must be transparent. Speaking about criticism of the US, I would like to say the following. As far as I understand, last year the procedure of inter-country adoption was canceled only in four cases, compared to 53 cases on Ukraine’s territory. This is not a coincidence. In all countries adopting Ukrainian children there are strict guidelines regarding potential adopters. They visit their house to find out in what conditions the child will live; they check their psychic health, their police and FBI records. No objection, there are isolated cases of abuse, which we regret. I think it’s important to know that last year there were 700 Ukrainian children who went to American families, and in 2002 — 1200. Even in cases if adoption is canceled, the child is not left alone on the street. From the moment when the child enters the US with an adoption visa, he or she automatically becomes an American citizen and receives the same rights, protection, and privileges as I, who was born in the US. If by Ukrainian law this child is a Ukrainian citizen, at the age of eighteen he or she has to decide between being a US or Ukraine’s citizen

“Speaking about bilateral and multilateral agreements, this is your country’s foreign policy. In my view, if a multilateral agreement is signed, there is no sense to waste money on signing a bilateral one.”

Gabriele DEBOTTINI, first secretary of the Italian Embassy:

“I would like to express my hope that Ukraine will ratify the Hague Convention in the immediate future. Its main positive aspect is monitoring the adoption process of adoption and children’s living conditions after adoption. We would like Ukraine to have a central authority to oversee adoptions and cooperate with the Italian Commission for Adoptions. This would ensure better control and enable the two central authorities to cooperate with other institutions subordinated to these structures. Italy has joined the Hague Convention, but we also have our domestic laws. The convention does not require national laws to be tailored to it. They must reflect the interests of both national legislation and the convention. Italy would very much like Ukraine to adopt the Hague Convention. Yet it would also like to sign a bilateral agreement with Ukraine that would deal specifically with the adoption of children.”