The Fate of Intercountry Adoptions Following COVID-19

• Author: Ambrosia Wilkerson
• Pages: 457-482

The Fate of Intercountry Adoptions Following

COVID-19

A

MBROSIA

W

ILKERSON

Intercountry adoption (ICA) is the process of adopting “a child from a

country other than your own through permanent legal means,” and then

bringing that child to live with you in your country of residence.

1

Whether

the adoption is international or domestic, the process is largely handled by

private agencies and lawyers who act as intermediaries and interact directly

with the participants.

2

For prospective adoptive parents, adopting a child

from a foreign country is based on contractual arrangements and requires

time, paperwork, and intermediaries to hasten the one- to four-year

process.

3

For lawyers and private agencies, ICA is a complicated process,

often burdened by state regulations, or concerns with equality, legality, or

bureaucratic due process.

4

But imagine initiating this process as an adoptive

parent, only to find a worldwide pandemic will intervene and further delay

the process with travel bans and raised expenses, distracting from the whole

objective of foreign adoption.

5

The purpose of this comment is to analyze problems that countries have

and/or are going to face post-COVID-19, as travel bans are lifted, and

blended families are united. More specifically, I will be focusing on ICA of

Chinese and Guatemalan children sent to the United States, the United

States’ past relations with these sending countries, and observe how the 2020

pandemic will affect those relationships moving forward. An understanding

of the pre-COVID-19 relationships between these countries will likely yield

insight to how the countries may proceed until travel bans are lifted and

more updated information is provided to the Department of State.

1. Joan H. Hollinger, Adoption Law and Practice § 11.01, in Adoption Law and Practice

(Matthew Bender, 2021 ed.).

2. David M. Smolin, The Corrupting Influence of the United States on a Vulnerable Intercountry

Adoption System: A Guide for Stakeholders, Hague and Non-Hague Nations, NGOs, and Concerned

Parties, 15 J. L. F

AM

. S

TUD

. 81, 105 (2013).

3. See id.

4. See id. at 105–06.

5. Rosie Colosi, ‘Not knowing right now is the hardest thing’: This is what it’s like trying to adopt a

child during a global pandemic, NBC N

EWS

(Dec. 11, 2020, 12:56 PM), https://

www.nbcnews.com/know-your-value/feature/not-knowing-right-now-hardest-thing-what-it-s-

trying-ncna1250936.

PUBLISHED IN COOPERATION WITH

SMU DEDMAN SCHOOL OF LAW

THE INTERNATIONAL LAWYER

A TRIANNUAL PUBLICATION OF THE ABA INTERNATIONAL LAW SECTION

458 THE INTERNATIONAL LAWYER [VOL. 54, NO. 3

I. The United States Intercountry Adoption Process

To understand intercountry adoption, it is helpful to understand the

process. Prospective adoptive parents have a few options pertaining to when

and how to finalize the adoption process. More specifically, immigration

law provides three avenues for intercountry adoption as follows: (1) Hague

process; (2) orphan process; and (3) family-based adoption.

6

For the purpose

of this paper, only the Hague and orphan processes for a U.S. citizen will be

discussed in length. Further, the Hague and orphan process share similar

requirements that must be met before a to-be-adopted or adopted child may

enter the United States; therefore, after providing a general run through of

the adoption process, the distinctions between the processes will be further

elaborated on in subsections of this work.

According to the U.S. Department of State, the number of intercountry

adoptions to the United States has been declining since the peak 22,986 in

2004, to 2,971 in 2019.

7

Nearly all of the 20,000 or more adoptees who

entered the United States were admitted by approved orphan visa petitions

prior to 2008, when the United States began to process some intercountry

adoptions through the Hague Convention.

8

Regardless of where or how the

adoption occurs, the U.S. Attorney General—acting through United States

Citizenship and Immigration Services (USCIS) agents—must be satisfied

that the parent(s) will be able to provide the child with proper care if

admitted into the United States.

9

Accordingly, there are some initial hurdles

a prospective adoptive parent must leap to begin the process. A home study

is often the first burdensome task a prospective adoptive parent faces, which

involves the collection of:

[i]nformation about the prospective adoptive parent(s)’ identity,

eligibility and suitability to adopt, background, family and medical

history, social environment, reasons for adoption, ability to undertake

an intercountry adoption, and the characteristics of the children for

whom the prospective adoptive parent(s) would be qualified to care

(specifying in particular whether they are willing and able to care for a

child with special needs).

10

“The home study must also satisfy any additional requirements of the

sending country and of the U.S. state where the prospective parent intends

to reside [with their child adoptee].”

11

Once a prospective adoptive parent

has a favorable home study on file with the USCIS, they can apply directly

6. Immigration through Adoption, U.S. C

ITIZENSHIP AND

I

MMIGR

. S

ERV

., https://

www.uscis.gov/adoption/immigration-through-adoption (last updated Jan. 27, 2020).

7. Adoption Statistics, T

RAVEL

.S

TATE

.G

OV

., https://travel.state.gov/content/travel/en/Inter

country-Adoption/adopt_ref/adoption-statistics-esri.html (last visited Mar. 4, 2021).

8. Hollinger, supra note 1, § 11.03.

9. See id.

10. See Nat’l Council for Adoption v. Pompeo, 460 F. Supp. 3d 37, 42 (D.D.C. 2020), rev’d

and remanded by Nat’l Council for Adoption v. Blinken, 2021 WL 2878845 (D.C. Cir. 2021).

11. Hollinger, supra note 1, §?11.04.

PUBLISHED IN COOPERATION WITH

SMU DEDMAN SCHOOL OF LAW

THE INTERNATIONAL LAWYER

A TRIANNUAL PUBLICATION OF THE ABA INTERNATIONAL LAW SECTION