Emma Jamison, Associate Director in the Family Department at MKB Law, was recently announced as runner-up for the highly prestigious IAFL European Chapter Young Lawyers’ Award 2022 for her award submission article addressing the decline in worldwide Intercountry Adoption (ICA).

ICA is the adoption of a child which entails a change in the child’s habitual residence and creates a permanent parent-child relationship between an adopting individual couple or an adopted person. Large-scale ICA started in the 1960s as many were concerned about children in developing countries suffering because of warfare or natural disasters. During this time, ICA was seen as a humanitarian solution.

In the early 2000’s, the total numbers of ICA began to decrease steadily, although the trend coincided with a growth in numbers of adoptions of children with special needs (meaning they are older, are in a sibling group, or have a disability).

Emma’s article explored the empirical data of ICA receiving states between 2004 – 2020, and considered the decline in ICA in reference to:

• Receiving states becoming signatories to the Hague Convention on Protection of Child and Co-operation in Respect of Intercountry Adoption (HCIA) and suspensions of ICAs in countries due to corruption and abuse. The HCIA was developed to respond to complex human and legal problems in the absence of an international instrument. Countries signing the HCIA indicated an intention to abide by its stipulations regarding regulations in child placement, the role of money, terms of citizenships, and the use of intermediaries. It meant signing an international treaty about ICA to (1) further the bests interests of the child/children and (2) make sure ICAs are happening ethically, which includes preventing child trafficking and child abduction. When some countries signed the HCIA, they were unable to implement the HCIA standards and so placed a moratorium of ICA.
• Political, legal and societal shifts, including the advances in reproductive medicine. For example, Russia closed ICA to the USA in 2013, following the Dima Yakovlev Law or ‘anti-Magnitsky Law’ which was informally named after a Russian orphan died in the care of his US adoptive family. The suspension of ICA to the USA was described as a retaliation to the US Congress’ passage of the Magnitsky Act, which placed sanctions on Russian officials who were involved in a tax scandal. Furthermore, as ICA is a subsidiary child protection measure, offering homes to children who have hitherto lacked adequate family support, the relative rise in living standards in developing countries on a macro-economic level enabled governments to bolster their own child welfare programs and implement social and family policies to support orphaned or abandoned children. Medical advances in reproductive medicine and IVF are now being favored as a route to parenthood, in particular surrogacy.
• The Covid-19 pandemic, which created unprecedented economic, health and social upheaval across the world. ICA essentially halved in 2020 when compared to 2019.

As a result of the cumulative effect of these factors, Emma posits that there has been a reduction in both the ‘supply’ of adoptable children and the ‘demand’ from adults wishing to intercountry adopt. Her view is that the decline has been a positive development as the state of affairs when ICA was at its peak (and prior to the HCIA) afforded too much leeway for the unscrupulous and corrupt. Thus, while ICA has dropped in quantity, the quality of ICA, as measured by respecting the rights of the children and their families of origin, have improved.

Emma will represent MKB Law at the International Academy of Family lawyers Introduction to European Family Law Conference in Ibiza in Spain October 2022.

If you have any questions in relation to adoption, surrogacy or any of the points referenced above, please contact Emma or a member of the Family Law team at MKB Law.