Sargent, S., “Identifying domestic mechanisms for rights protection in an intercountry adoption setting: A comparison of India, Guatemala and South Africa”, Essex Human Rights Review 7.1 (2010), 50-71.
Intercountry adoption of children is often in news headlines, particularly when celebrities are adopting. There are concerns about whether pressures of market ‘demand’ to adopt children in intercountry adoption leads to practices to supply children in ways that violate the rights of the child or of the parents. Most states have laws in place that require legal safeguards when a parent gives their permission (legal consent) for a child to be adopted. These safeguards are meant to ensure that parental consent is not obtained through means that mislead the parent about what it means to consent to an adoption. These legal safeguards are also meant to ensure that parental consent is not forged or fraudulent.
There are unfortunately instances where parents have signed a document that gives their legal consent to the adoption of the child when the parent does not understand what they have signed, or where they have been deliberately misled about the contents and legal significance of the document. The meaning and consequences of an adoption also vary in different societies, cultures and states. The Western view of adoption is that it permanently severs the ties the child had with his or her birth family. But this is not a universal view of the consequences of adoption. Some cultures, societies and states see adoption as not severing the child’s ties with the birth family, and rather, acting to connect the birth and adopting family through the child. Adoption in this point of view builds family connections between the birth and adopting family rather than severing ties.
The article looks at parental consent laws and legal systems in three different countries that are involved in sending children in intercountry adoption to other states. These three countries are India, Guatemala and South Africa. The article examines the practical barriers that exist to a parent being able to fully access and exercise their rights as well as the way in which local court systems are structured. The article says that that local social and cultural norms must be taken into account when building legal safeguards to ensure that parents understand the legal consequences of giving consent to an adoption. It concludes that effective laws to safeguard parental consent would be ones “crafted with an awareness of the local context. The ways in which consent is obtained, the explanations given about the meaning of consent to adoption, and safeguards on possible abuses would all be cognizant of the local culture, meanings, and relevance to the community.”
The full text of the article is available on the Essex Human Rights Review website: Sargent.pdf. The Essex Human Rights Review (EHRR) is a peer-reviewed, multidisciplinary, academic journal which aims to address contemporary human rights issues. The EHRR is associated with the internationally renowned Essex Human Rights Centre at the University of Essex. See their website (external link).
Dr Sarah Sargent is a Lecturer in Law with the Law School at the University of Buckingham. Before coming to the UK to complete a PhD degree in law, she practised law in the United States. Her legal practice included work on children’s and family issues in domestic fostering and adoption.
