When Adoption and Immigration Law Collide

Implementation of the Hague Adoption Convention has thrown intercountry relative adoptions into a state of chaos. In the United States, as in many countries, adoption policy favors relative adoptions. Children whose own parents are unable to raise them are best raised by relatives, so that they hold on to their cultures and maintain ties with their extended families. Placements outside the family are only sought where no fit relative can be found. However, the Hague Convention has required that all intercountry adoptions be handled through central governmental agencies, and in a uniform manner. This is supposed to take corruption and dishonesty out of the international adoption process. And it was implemented in part to assure that each country's cultural norms would be respected in the international adoption market. But application of these uniform rules to family adoptions simply doesn't work. An example: International rules require that a child born to married birth parents cannot be adopted unless the birth parents are destitute. This is to prevent the sale of children into the international adoption market. But take one client couple of mine, whose sister in a Hague Convention country agreed to have a baby for them because of their infertility issues. In their culture, this was a common and acceptable practice. But she wanted to have the baby in her home country, where she could continue to live her life and care for her own children up to the moment of childbirth. So the plan was for her to have the baby at home, with my clients present, and for my clients to then return to the United States with the child. Enter the Hague Convention. Under Hague rules, the child was not eligible for adoption because it was born to married parents who were not destitute. Further, if the parents surrendered the child to an orphanage to render it eligible for adoption, the child would then have to be placed for adoption through the central government agency, with no promise that it would be placed with my clients. No exceptions would be made for a relative placement, even though adoption policy clearly favors such a placement in both the country where the child was born and here in the United States. This left my clients with a series of unacceptable options. They could live in the country where the child was born for at least two years, adopt the child there, and then return to the United States when the entire effort was accomplished. Of course, this created huge problems in terms of their employment and their lives here in the United States. How do you put your lives on hold for 2+ years to adopt a child? Or, in the alternative, they could bring the child back to the United States with them on a tourist visa (they themselves are U.S. citizens), but once that visa expired the child would become an undocumented alien with no way to obtain legal status. A domestic adoption here in the United States, with full consent of the birth parents, would make the child legally theirs; but it wouldn't satisfy the U.S. Citizenship and Immigration Services (USCIS) rules for immigrating the child to the United States, now or ever. So the child would never be eligible for such vital documents as a Social Security number or a passport. Or, they could have their sister abroad surrender the child to an orphanage in her home country, then take their chances with the central adoption agency there, petitioning that agency to place the child with them. But if that didn't work, the child would be placed with strangers. In the end, we were unable -- despite consultations with lawyers and law professors around the country -- to figure out any way of allowing this infertile couple to legally adopt their sister's baby, which she had birthed specifically for them, and to immigrate that baby to the United States. Although relative adoptions were clearly favored under the adoption policies of each country, the rules simply did not work to allow this international relative adoption to occur. My initial reaction to the above dilemma was that there must be some mistake. The Hague Convention clearly allows for separate policy to be set for relative adoptions -- it must have been an oversight that no such policy had yet been implemented here in the United States. But no, that apparently is not the case; instead, the USCIS has chosen to assume, in its infinite wisdom, that all efforts by U.S. citizens to adopt relative children from abroad are actually barely-disguised end-runs around orderly family immigration policy. Rather than favoring relative adoptions, USCIS looks with great skepticism on all such adoptions. The fact that this position runs completely contrary to established immigration policy seems not to bother USCIS in the least. Their job is to prevent the flood of children to the United States that they fear would occur if family members here were allowed to adopt these children away from their own parents abroad. To prevent this flood, international relative adoptions have been rendered essentially impossible. And thus, the collision of adoption and immigration law.