States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:
(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child's status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary;
(b) Recognize that inter-country adoption may be considered as an alternative means of child's care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child's country of origin;
(c) Ensure that the child concerned by intercountry adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption;
(d) Take all appropriate measures to ensure that, in intercountry adoption, the placement does not result in improper financial gain for those involved in it;
(e) Promote, where appropriate, the objectives of the present article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs.
What does article 21 say?
Article 21 sets standards on adoption - where this is a recognised practice - to ensure that children's interests are the paramount consideration in all adoption decisions.
This requires that children's need for adoption is determined in the right way; decided by the competent authority, with the informed consent of all parties involved; carried out in the right way with no 'improper financial gain'; and that inter-country adoption is only considered when appropriate care cannot be found for a child in their own country.
This article must be seen in the context of the CRC as a whole: it is connected to identity, children's right to know their origins, to be cared for by their parents and support and care for children deprived of their family environment - all to be achieved by ensuring children's best interests are the paramount consideration.
Why is this important?
No one would dispute that children benefit from growing up in a loving, stable and permanent home and family, and that adoption can be one means of achieving this - provided it is regulated by law and supervised by the State authorities. However, adoption can also deny children their rights if the proper regulations are not in place and their interests are not at the forefront of decision making.
What are the problems?
In recent decades reports have brought to light the extent of illegal and unethical practices surrounding adoption - particularly in its international form - prompting questions about why, how and when adoption should be an option.
The main controversy has arisen out of fierce global 'demand' to secure a child for a family, which now outweighs the number of children eligible for adoption. In fact, very few 'orphans' have no family; a recent study suggests that 98 per cent of children in institutions in Central and Eastern Europe have at least one living parent, and that when institutions are shut down, many of these children are accommodated by members of their own family. In some countries children are placed in institutions not because they are unwanted or have no family but out of poverty. Elsewhere, children find themselves without a home by virtue of social norms which shun teenage pregnancy and children born out of wedlock. In Ireland, for instance, thousands of unmarried women and girls were forced to give up their children for adoption and incarcerated in Catholic-run laundries (the last of which shut in 1996). In Uruguay, unmarried girls under 18 still cannot be registered as their child's parent (art. 235 of the Civil Code).
While the majority of prospective parents have a well-meaning and legitimate desire to build a family, the scarcity of adoptable babies and young children in their home country, coupled with stringent and lengthy procedures at home, motivates them to take their search to countries where regulations are lax. This has resulted in children being wrenched from their birth parents by deception and essentially sold by unscrupulous intermediaries. Before legal reforms were passed in Guatemala, for example, children were stolen, kidnapped and trafficked for adoption as a matter of routine with the collusion of notaries and medical professionals who falsified DNA tests and legal documents. At one point one in a hundred children was given up for international adoption.
In spite of the rising demand for inter-country adoption, this practice has been in decline globally since 2004, primarily because of the development of stronger national systems, enabling most children to be cared for in their home country. Many countries now limit inter-country adoptions to children who tend to be overlooked nationally, such as children over a certain age and children with disabilities. While this signals progress, it has given rise to new issues: some countries have concealed children's learning disabilities from their adoptive parents who have then found themselves unable to cope, leading to a distressing situation for the child.
While international adoption is the main arena for such abuses, domestic adoption is not exempt. Domestic procedures can violate children's rights in other ways, for example, when their views are not taken into account or when they are denied access to their files.
What can be done about it?
The original draft of article 21 merely required States to 'facilitate' adoption. However, reports of illegal and unethical practices were already beginning to emerge at that time, prompting the drafters to reshape the final version to set minimum standards(1). Other important standards on adoption include the 1993 Hague Convention which protects children in inter-country adoption, The European Convention on the Adoption of Children (Revised 2008) and the Draft Guidelines on Inter-country Adoption in Africa.
The most important consideration throughout the adoption process - from identifying a child in need of a home, to the procedure itself, through to monitoring the child's placement - is the child's best interests (article 3), and this must be stated in law.
The best interests principle requires that the child's circumstances and identity are investigated by judicial and professional authorities in a transparent manner. They are responsible for determining the child's best interests and ascertaining the informed consent of all those involved. Taking the child's views into account is central to establishing their best interests and is required under article 12. Some countries set a minimum age above which a child's consent must be obtained, in others children can veto their adoption.
Another fundamental principle of the Hague Convention is the subsidiarity principle. This requires the investigation of less intrusive solutions (family support systems, foster care, and care by family members, for example) before the child's own family ties are broken forever. Before starting any adoption procedure or declaring the child eligible for adoption, all other solutions must be considered. The child's individual situation should be reviewed thoroughly to establish if there is an alternative form of parent support or care.
In practice the best interests principle has often been subverted where inter-country adoption is concerned, leading many to impose their belief that children are better off with a wealthy family outside their country of origin rather than remaining with poor relatives at home.
The CRC is adamant that the State should take all measures possible to support children to remain with their family where this is deemed to be in their best interests (article 20.3), and that parents have primary responsibility for raising their child (article 18). Adoption must only be considered where parents are unwilling to fulfil this responsibility or are ruled to be incapable of doing so by judicial process. In this case, a child should be placed with their wider family or found appropriate care nationally, with inter-country adoption a last resort. The Hague Convention backs this standpoint, also known as the principle of subsidiarity. A recent Council of Europe report further exhorts States to send adoption applications to other countries only in the numbers and at the time requested to avoid fuelling attempts to separate children from their families for financial gain. Particular vigilance is required in post emergency situations by both sending and receiving countries as tracking down identity documents and relatives is virtually impossible and proper regulations are in disarray.
Widespread concern persists about children being trafficked for adoption for 'improper financial gain'. Article 35, together with the Optional Protocol on the sale of children, child pornography and child prostitution, prohibits the sale of children for any reason, and requires States to criminalise perpetrators of this practice.
Regulation of adoption helps to ensure children are matched with the right person on the basis of accurate information. All prospective parents should be informed about the degree and need of inter-country adoptions. They should also receive help in preparing for children's questions about their origin. Articles 7 and 8 of the CRC promote children's right to be told of their adoption and know their parent's identity if they wish. These articles were conceived by children's rights advocates in Latin America in response to the adoptions, often by military families, of children of parents who 'disappeared' during the 1970s and 80s dictatorships. In this vein, the Convention also asserts the importance of a child's familiarity with their own culture and language where this is different from that of their adoptive family and where they desire this connection (article 30).
In cases of inter-country adoption, States should ensure that children receive the nationality of their adoptive parents to prevent statelessness.
This page forms part of a guide to children's rights as set out in the articles of the UN Convention on the Rights of the Child. The guide explains what these rights mean, why they are important and what States should do to guarantee them.
1. UN Office of the High Commissioner for Human Rights and Save the Children Sweden, ‘Legislative History of the Convention on the Rights of the Child’, Volume 1. New York and Geneva: 2007, p. 483, para 39. Available at: http://www.ohchr.org/Documents/Publications/LegislativeHistorycrc1en.pdf