Abstract
South Korea experienced international scrutiny over its irregular intercountry adoption practices in the 1980s. However, it eventually came to be viewed as a model of transparent and efficient adoptions. This façade disguises an orphan adoption system that has become entrenched over the decades. Today, adoptees continue to lobby for their right to origins. This paper explores South Korea’s laws and policies, which nullified the rights of adoptees, and it calls for receiving countries to assume co-responsibility to restore these rights.
Keywords
Introduction
The first wave of intercountry adoptions emerged in the aftermath of World War II as a response to the high number of displaced children orphaned by the devastation of war. This migration was marked by the movement of children from Europe to the United States and gradually subsided as European countries recovered (Weil, 1984). Like the first upsurge in adoptions, the second wave transpired in the wake of the Korean War in 1953, then proceeded to expand worldwide (Selman, 2014). Although not the first country to partake in intercountry adoption, it is estimated that South Korea has placed more than 200,000 children abroad. 1
From 1953 to 1960, private agencies placed children, most of whom were mixed-race Koreans, in the United States under a set of emergency measures. Rather than declining with the economic prosperity of Korea, intercountry adoption practices became systematized through the interplay of Korean and U.S. legislation (Oh, 2015). Kim and Carroll (1975), Carlson (1988), and Winslow (2012) elaborate on this by arguing that the formation of Korean adoption legislation took into account U.S. immigration laws, and likewise, the United States amended relevant immigration restrictions to facilitate the adoption of Korean children.
Thus, the dramatic rise and fall in the number of infants sent for intercountry adoption, as depicted in Figure 1, rather than corresponding to the welfare needs of children, reflected the political and economic needs of the regimes. These needs included evading child protection responsibility and reducing welfare costs (Jeon et al., 2019). Although the number of adoptions has declined, many of those adopted people have reached adulthood and begun returning to Korea. According to the Ministry of Health and Welfare’s survey in 2007, approximately 3,000 to 4,000 adoptees had short-term visits, while at least 500 had lived in the country for more than 1 year (MOHAW 2008). Starting in the 2000s, other returnees included adopted Koreans deported from the United States. According to a recent report by the National Assembly Research Service of Korea, the number of Korean adopted people in the United States whose citizenship acquisition is unknown is estimated to be over 18,000 (Jung and Park, 2020). Number of intercountry adoptions from South Korea (1953∼2019)
Issues around citizenship uncertainties for some adoptees in their adoptive countries, as well as other problems discussed in this article, undermine the common perception of Korea’s intercountry adoption program operating as an ethical and efficient means to rescue poor orphans (Oh, 2015). On the contrary, as this article intends to reveal, South Korea deliberately devised laws and policies that systematically violated adopted people’s rights, including their right to know their origins. In particular, this article aims to answer the question of how Korea deliberately systematized intercountry adoption through its legal frameworks to create an efficient apparatus to place large numbers of children abroad. While literature characterizes sending countries as suffering from poverty, high birth rates, and systematic discrimination (Kane, 1993; Lovelock 2000; Young, 2012), this article provides an analysis of the laws and policies of Korea to illustrate that these social factors alone cannot explain Korea’s use of intercountry adoption.
As mentioned earlier, the United States played an integral role in the development of Korean adoption legislation; therefore, relevant U.S. legislation will also be discussed to illustrate the interplay between the laws of these two countries in the establishment of Korea’s intercountry adoption program. 2 Additional attention will be dedicated to discussing the adverse impact the privatization of adoption matters has had on Korea’s national child protection system and on its human rights obligations. The last section visits the limitations of cooperation between sending and receiving countries under the Hague Convention. The article concludes by emphasizing the consequences that these issues and poor intercountry adoption practices have had on adopted people, especially in regard to their right to origins.
The legacy of orphan adoption law, policy, and practice
After World War II, in response to a large number of war orphans in Europe, the United States allocated around 17,000 refugee visas to bring children to the United States through intercountry adoption. This migration, which came to be called the first wave of intercountry adoption, lasted from 1948 to 1975 (Weil, 1984). The second wave emerged after the end of the Korean War in 1953. Unlike the prior wave, intercountry adoption soon spread from continent to continent as the number of babies transferred from poor Southern families to upper-middle-class households in North American and Western European countries soared (Kane, 1993; Lovelock, 2000).
The origin of orphan adoption Law in Korea
In 1945, Korea gained its independence after three-and-a-half decades of Japanese colonization, only for the Soviet Union and the United States to divide the country. Then on 25 June 1950, the Korean War erupted. As the conflict drew to a close in 1953, Rhee Syngman, the first president of South Korea, issued a presidential order that declared only one nation should exist in one country and that mixed-race children born from Korean women and foreign soldiers are to be sent overseas for adoption (Social Welfare Services, 2004). To this end, Rhee established a specialized organization under the Ministry of Health and Social Affairs and authorized four foreign aid agencies to perform adoptions for those deemed Korean “orphans.” From 1953 to 1960, more than 5,000 mixed-race children left the country (Social Welfare Services, 2004; MOHASA, 1958). Jeon, Lee, and Trenka (2019) argue that since three-fourths of these children were living with their families and actively recruited by the agencies for intercountry adoption, a more accurate description of Rhee’s efforts would be a government-led forced displacement of certain racial groups of children.
In South Korea, decades of colonial rule and war prevented the development of a modern legal system. During Japanese rule, minimum statutory legislation regulated public order, while customary laws inherited from the Joseon Dynasty governed private and family relations. The traditional family law of Korea prohibited non-relative full adoptions. Referred to as Jong-bup, it reflected the core principle of Korea’s patriarchal system where the first son inherits the privileges and obligations as the master of the extended family. With this position comes the name, assets, and ritual responsibilities to honor the family’s ancestors, protect the family, and, most importantly, produce an heir. A critical role of the Jong-bup system included yang-ja, which literally translates to “nursing son,” who served as an heir in cases where the master could not produce his own biological son. (Lee, 2017, 2021).
A set of reforms in immigration law of the United States (as a receiving country) and in the adoption law of South Korea (as a sending country) established the legal framework for orphan adoption. In 1961, the United States Immigration and Nationality Act (INA, Pub. L. No. 87-301, §§ 1-4, 75 Stat. 650) introduced the category “orphan” as a qualification for permanent status under which a U.S. citizen could bring a foreign child into the United States for adoption. While the original orphan clause from an earlier piece of legislation, the 1948 Displaced Persons Act of the United States (Pub. L. No. 774, 62 Stat, 1009), defined an orphan as a child whose parents were dead or disappeared and limited the state of origin to German, Austria, etc., the 1961 INA expanded the definition to such an extent that it included abandoned children and those from single parents (Lee, 2017, 2021).
The creation of the orphan status as an immigration qualification to enter the United States consequently led South Korea to develop a corresponding policy to provide the legal basis for fulfilling this qualification in the same year. Under the military dictatorship of Park Chung-hee, the Orphan Adoption Special Procedure Act (OASPA) was enacted in 1961 to establish two tiers of adoption legislation. The Civil Act governs general family law with the traditional Jong-bup providing the basic principles of the family system. The OASPA aimed at “ (promoting) the welfare of orphans by simplified procedures through which an alien may adopt an orphan who is a national of the Republic of Korea” (Art. 1). As South Korean family law neither legally permitted nor provided procedures for voluntary relinquishment by birth parent’s consent for adoption, South Korea circumvented this by issuing an official certificate that declared such children as abandoned, and therefore designated as orphans under OASPA; thereby qualifying them for intercountry adoption. During a 1965 National Assembly discussion, an official from the Ministry of Health and Social Affairs described OASPA, "…in the process of carrying out orphan adoption to receiving countries, we can acquire about 130 dollars per person when we send them overseas and save (welfare) costs on housing orphans at the same time. It is like killing two birds with one stone.” In other words, the Korean government regarded this program as a means to reduce the financial burden for child welfare. Orphan Adoption Special Procedure Act consisted of only seven articles. The brevity of the act reflects its primary purpose to serve as a legal basis for qualifying abandoned children as “orphans” and for facilitating the district offices of the Seoul City government in declaring the child as abandoned.
As these laws and policies became more entrenched, intercountry adoption carved its own space separate from general child welfare. It became the business of private adoption agencies, which were bolstered by laws that bestowed them with substantial independence and exclusive powers. Consequently, the predominance of intercountry adoption in welfare resulted in the exclusion of certain groups of children from society and national protection; instead, they were referred to adoption agencies for intercountry adoption. Most of these children, over 90%, came from unwed mothers (Ministry of Health and Welfare, 2007-2020).
Establishing adoptability through the recognition of orphan by abandonment
From the position of the country of origin, the formation of its adoption law will inevitably come under the sphere of influence of the receiving country’s national adoption legislation since the ultimate aim of such legislation is to facilitate the receiving country’s court to finalize the adoption. According to the Restatement (second) of Conflict of Laws of the United States, the state court should choose the applicable law for intercountry adoption, but concerning adoptability, the court may refer to the state of origin’s legislation. Thus, evidence of adoptability constitutes one of the critical elements provided by the laws of the state of origin.
As mentioned earlier, OASPA established two tiers of adoption legislation, essentially introducing a dual-track adoption system. On the one hand, it secured the traditional yang-ja system in general family law. On the other hand, it introduced a special procedure for facilitating the adoption of orphans by foreigners by eliminating the obstacles of adoptability erected by the Civil Act, which prohibited the adoption of the first son. OASPA prescribed “that the orphan under (this act) shall include a person who is to succeed the linage of his parent or as head of the family” (Art. 2).
Under the 1961 INA of the United States, an abandoned child qualified as an orphan. While receiving countries‘ adoption laws might recognize birth parents’ consent for adoption as severing their parental authority, this was not the case in South Korea as the law did not permit voluntary relinquishment. Consequently, South Korea developed a procedure that recognized abandoned children as orphans and authorized local district offices to issue an orphan certificate (Van Loon, 1990; Lee, 2017, 2021).
In response to these legal maneuvers, U.S. social welfare professionals and state court judges argued that the immigration office undermined the state court’s jurisdiction by essentially deciding adoptability through the issuance of visas for intercountry adoption before the state court could decide on the adoption. Carlson (1988) described one solution proposed to settle the dispute, which involved adoptive parents and the adoption agencies designating a guardian to provide consent in the relevant U.S. state court. The court could then verify the adoptability based on the consent furnished by this person. South Korean orphan adoption law did precisely this.
The typical South Korean orphan adoption process entailed the following steps. (Social Welfare Services, 2004; Lee, 2021) The adoption agency in South Korea acquired children from a variety of sources, including orphanages, birth parents, hospitals, and even police officers. The head of the adoption agency then reported the children as abandoned to the district office of Seoul. Although child abandonment should be reported to the police first, the heads of the adoption agencies were authorized to report directly to the district offices. The Administrative Office of the Supreme Court (AOSC), which is responsible for birth registration, issued an orphan certificate referred to as a ko-a-ho-juk. This certificate represents the only birth registration document provided to children who are registered without any record of their parents or family. With the orphan certificate, the head of the adoption agency assumes guardianship of the child without any case-by-case assessment or determination procedure. Under the Adoption Special Procedure Act (ASPA), the process was nearly automatic.
Upon registering the child as an orphan, the adoption agency subsequently applied for a passport with the Ministry of Foreign Affairs and permission to emigrate with the Ministry of Health and Welfare on behalf of the child. With these documents issued from the ministries, the adoption agency applied for an immigration visa, an IR-4 in the case of the United States, to the receiving country’s embassy on behalf of the prospective adoptive parents.
With the visa and passport, a volunteer escort transferred the child to an airport nearest to the prospective adoptive parents in the receiving country. After the child arrived, the guardianship of the child was transferred from the Korean adoption agency to its counterpart in the receiving country. Based on this guardianship, the adoption agency in the receiving country provided consent in the U.S. state court to establish the adoptability of the child.
With the court’s full and final adoption decree, a family relation was created between the child and adoptive parents. At this point, the naturalization process should be finalized based on the child’s family relationship with the U.S. adoptive parents. If the child acquired the nationality of the receiving country, then the adoption agency should report this to the Korean Ministry of Justice, and the Ministry would then cancel the child’s Korean nationality in accordance with the prohibition of dual nationality under the Nationality Act of Korea.
Commenting on the adoptability decision of an orphan from Korea, Kim Chin, a U.S. law scholar who had worked as a law professor in Korea in the 1960s, said, “…American policy encourages and facilitates international adoption through the application of the preferential visa system. Korean law is designed to complement American law by providing children of adoptable status who qualify for the preference…Furthermore, the special law was promulgated by South Korea at the urging of United States agencies, which saw the need to facilitate the international adoption system” (Kim and Carroll, 1975).
The oligopolistic structure of specialized adoption agencies in the sending country
The international network of large-scale adoption agencies that operated in a systemized manner as private entities served as the crucial determinant that brought about such a massive cross-border movement of children. Kane (1993) underlined several conspicuous features of Korean intercountry adoption in the 1980s by noting that it comprised over half of the intercountry adoptions worldwide (60% of all intercountry adoptions in the world), and the ratio of adoption and total national births stood at more than 1%. She concluded that the existence of adoption agencies in the country largely accounted for this phenomenon. Lee (2017) adds that it was not only the existence of these agencies but also the private nature of adoptions, which included the intake of infants into the adoption system through agencies and orphanages. These matters were private affairs arranged by the birth families, orphanages, or adoption agencies. Once children entered this system, their adoptions were overseen by independent agencies that determined all decisions related to their placement. These practices persisted until 2012, when adoption court orders were introduced.
The other critical element in achieving the figures is that adoption agencies used proxy adoptions. Under the 1953 U.S. Refugee Relief Act (Public Law No. 203, 67 Stat. 400), adoptive parents applied for the child they intended to adopt without physically presenting themselves in the state of origin. This practice met intense criticism from U.S. social welfare professionals, and the 1961 INA abolished this practice when it introduced the orphan provision (Winslow, 2012). However, this did not end proxy adoptions; instead, they escalated under the 1961 OSAPA, which stipulated that “an alien may designate an organization authorized by the ordinance to be his proxy for a certain part of the procedure of the adoption” (Art. 6). Despite several revisions over the decades, the two-tier adoption system persists and still grants the adoption agencies the power to perform adoptions while remaining independent from the general child welfare system (Lee, 2017, 2021).
The costs of being a sending country: harms done to the national child protection system
Smolin (2013) compares the acts of intercountry adoption agents and intermediaries representing adoptive parents to slash and burn agriculture practices. Just as the land once used for agriculture is left barren and deteriorates, so too do major sending countries in Asia, Latin America, Eastern Europe, and Africa, which sent babies for intercountry adoption. They have witnessed not only the deterioration of their adoption laws but also the decline of their overall child protection system. South Korea serves as a representative example.
False birth registration and systemized child Laundering through abandonment recognition
In 2012, South Korea finally revised its adoption law to prescribe the family court to finalize adoptions. However, the most fundamental legal effects came not from the introduction of the courts but the birth registration. Since court procedures demanded “legally” certified documents on the birth of the child, adoption agencies undertook significant changes to their adoption practices (Lee, 2021). Before the law revisions, adoptive parents in South Korea commonly registered their adopted child as their own (Byon et al., 1999).
The Korean birth registration law (Article 46 of the Family Relations Registration Act) imposes an obligation on parents to report the birth of their child. The AOSC serves as the birth registration authority, but in this capacity, it does little more than restrict public intervention and acts as a mere depository. As a remnant of the Japanese colonial era, the customary “neighbors guarantee system” was a procedure that enabled a person to register a child as his/her birth child at the register office of the AOSC without any certificate from a hospital or a medical professional. Instead, the person only needed to secure the testimony of two people to attest that the child belonged to that person. As of 30 November 2016, this system was abolished, but prior to this, the procedure allowed Korean adoptive parents to register their adopted child as a birth child (Lee, 2021). Unlike domestic adoption, intercountry adoption procedures require a passport, visa application, and judicial procedure in the receiving country’s court, which served to prevent potential adoptive parents from fraudulent registrations. Instead, to circumvent this obstacle, infants were registered as “found abandoned” and issued an orphan certificate.
The adverse influence of these abusive birth registration practices emanated beyond the adoption sphere. Han (2010) revealed that these practices affected South Korea’s vital statistics, specifically its infant mortality rate. She found that due to failures to accurately report the birth and death of newborn infants that actual infant mortality was underestimated by 20%. Besides being a fundamental human right, these violations of birth registration deprived children of permanent legal recognition (U.N. Human Rights Council, 2013). Consequently, it left children vulnerable to trafficking and illegal adoption while hindering access to health and education services (UNICEF, 2013, 2019).
The Korean system has categorized births into three types: within wedlock, out of wedlock, and “found abandoned.” Where the district office of the local governments receives a report on an abandoned child, the AOSC issues a birth registration without family relations, as described earlier. The ASPA and Child Welfare Act authorize the head of the orphanage or adoption agency to report an abandoned child to the district office and apply for an orphan birth registration at the registry office of the AOSC.
While the figures from the AOSC and MOHAW closely correspond, they represent cases governed by different laws and different government bodies and collected through two separate procedures and systems. Thus, this table illustrates that despite claiming to constitute an instrument of the child protection system, the abandonment reporting system created distortions and fictions to establish a legal basis for adoptability for intercountry adoption.
A closer examination of the annual judicial statistics reveals that the districts receiving the most reports of abandoned children were the same districts in which major adoption agencies were based. The 2012 adoption law reforms that introduced a court procedure severed this connection, and adoption agencies may no longer use false birth registration. However, the problems of the birth registration system reach beyond intercountry adoption procedures to impact the entire child protection system. Despite being legal, these problematic practices have comprised the principal means of perpetuating intercountry adoption abuses. Law neither equates to ethics nor does it guarantee justice. On the contrary, in this case, laws justified and excused the continued abuse and human rights violation.
A nullified guardianship system for child protection
International child rights norms dictate that where a child loses parental care, then a legal guardian should be appointed in their place to protect the child. This process of selection should ensure procedural safeguards, such as an assessment and determination on a case-by-case basis and guided by the best interests of the child (EU, 2015; UNGA, 2010; UN CRC, 2013).
In South Korea, guardianship for minors is divided into two categories: In the first category, the court may designate a guardian under the Civil Act for general cases or under the Child Welfare Act for children in need of protection. The second type of guardianship is dedicated to children under the care of adoption agencies or welfare facilities. In such cases, guardianship is automatically appointed to the heads of these facilities (Adoption Special Procedure Act, Guardianship Duty for the Minors in the Welfare Facilities; Lee, 2021).
As described earlier, the guardianship exercised by the adoption agencies for adopted children empowers them to provide consent in the courts of the receiving countries. However, whether the scope of guardianship duties for the agencies includes the power to consent for adoption remains unclear. Notably, the ASPA provides the adoption agency with guardianship of the child under its protection but falls short of specifying the scope of these duties. The Civil Act stipulates that the role of the court-appointed guardian consists of exercising parental responsibilities. In 1991, the revised Civil Act required that where a guardian consents to the adoption of a minor, it must obtain permission from the family court. In 2003, the AOSC officially articulated that regarding the adoption of a child found abandoned; consent should be provided under the court’s supervision (Lee 2017).
Shortcomings of the guardianship system for minors in South Korea are twofold. First, since 1961, Korean legislation has contained provisions that provide court procedures for appointing guardians for children out of the care and protection of their parents. However, research has found only a few cases in which these procedures have ever been used. Until 2008, researchers identified only one or two instances where a public authority appointed a guardian, which demonstrates the nominal nature of such provisions (Oh, et al., 2008). It also reveals that children were placed in welfare facilities without an alternative care assessment or decisions on legal guardianship.
The cursory nature of this process embodies the second shortcoming. The intake process of children precludes any judicial or administrative assessment or decision; thereby, omitting any intervention on parental responsibilities. In essence, the guardianship system amounts to little more than a nominal practice that exists on paper. In effect, the law and child protection system aims to facilitate intake procedures. The absence of public authorities providing procedural protection nullifies the guardian system, thwarting it from functioning for child protection (Lee, 2021).
Although a crippled guardianship system negates its value within South Korea, it remains beneficial for intercountry adoption since the mere existence of the system serves to satisfy receiving countries' courts' demand for evidence of an adoptability determination. Thus, for the purpose of facilitating adoptions, it earned praise. Epstein (1982) commends Korean adoption agencies' guardianship, including their authority to consent to adoption as unique from other sending countries, and endorses its use in intercountry adoption.
Evading treaty obligations
From the 1980s, intergovernmental bodies and states began forming international legal norms for intercountry adoption procedures. From the view of a sending country such as South Korea, the core Conventions are the United Nations Convention on the Rights of the Child (CRC), 1993 Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoption (Hague Convention on Intercountry Adoption), and the 2000 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (OPSC).
Coincidentally, South Korea’s legal system for adoption deviates far from the international standard. Despite this divergence, it has continually sought to establish a place for itself in the international community by joining the U.N. in 1991, then the OECD in 1996, and the Hague Conference on International Private Law in 1997. Its membership in these intergovernmental bodies has not discouraged it from evading its treaty obligations by exploiting every legal loophole available within the U.N. human rights treaty system.
The first example of evasion concerns South Korea’s reservation on Article 21(a) of the CRC. Article 21 establishes minimum international standards for adoption. When South Korea ratified the CRC on 20 November 1991, it declared a reservation on Article 21(a), which obliges only competent authorities to authorize adoption. This move is noteworthy as South Korea was the only state party, until it withdrew its reservation in 2017, with an adoption system that deemed itself free from this fundamental obligation. Such an attitude demonstrates that South Korea fully recognizes that its legal system lacks any judicial procedure for adoption and violates international child rights norms.
Furthermore, the fact that the U.N. human rights treaty system admits this kind of reservation, which violates core child rights norms, represents a severe flaw in upholding human rights. South Korea’s evasion of its human rights duties is not a one-off event but consistent and continuous. From 1996 to 2011, South Korea underwent three reporting sessions before the Committee for the Rights of the Child. At each session, the Committee expressed concern at the high number of intercountry adoptions from Korea, and it urged the country to withdraw its reservation on Article 21(a) (UN CRC, 1996, UN CRC, 2003, UN CRC, 2011, United Nations Treaty Collection, 2020). 3
Second, Article 3 of OPSC prescribes States Parities to ensure that “improperly inducing consent, as an intermediary, for the adoption of a child in violation of applicable international legal instruments on adoption” is fully covered in the criminal or penal law, whether such offenses are committed domestically or transnationally or on an individual or organized basis. Like the CRC, South Korea ratified OPSC on 24 September 2004, with a declaration; “The Government of the Republic of Korea understands that Article 3 (1)(a)(ii) of the aforementioned Protocol is applicable only to States Parties to the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption, done at The Hague on 29 May 1993.” When read alone, the purpose and meaning of this declaration remain ambiguous, but when connected with the reservations declared by the United States for OPSC, then the true intention emerges. The U.S. reservation states that until it became a party of the Hague Convention, which it did in 2008, “it understands that it is not obligated to criminalize conduct prescribed by Article 3 (1)(a)(ii) of the Protocol or take all appropriate legal and administrative measures required by Article 3 (5) of the Protocol.” Since South Korea understands and acknowledges its connection with the United States in intercountry adoption, its declaration reiterates part of the U.S. reservation (Lee 2021).
Third, the 1993 Hague Convention on Intercountry Adoption operationalized Article 21 of the CRC to enable its implementation by regulating the stages of the adoption procedure. As of December 2019, the Convention counts 102 contracting parties with three signatories: South Korea, Nepal, and Russia. Even though South Korea participated in the drafting discussions and was included as an anticipated signatory three decades ago, it was not until 2013 that the country signed with a promise to ratify within 5 years. Yet to this day, it remains unclear when South Korea will ratify this Convention.
The extent of receiving countries’ responsibility for cooperation
Article 4 obligation
A core principle of the 1993 Hague Convention of Intercountry Adoption maintains that in the process of intercountry adoption, the receiving countries and states of origin share responsibility for protecting the rights of the child. However, this cooperation encounters limitations to Article 4 obligations, which explicitly stipulates the sending countries' duties. Under the provisions, the competent authority of the sending country should decide on two crucial decisions: one is the adoptability of the child, and the other is whether intercountry adoption satisfies the best interests of the child as a measure of last resort after having given due consideration to domestic placement. The latter decision embodies the subsidiarity principle, which entails the incorporation of intercountry adoption within the national child protection system. Where a State Party practices intercountry adoption, this implies that it is doing so as an approved measure for the protection of the child.
The HCCH collects country profiles of the States Parties, and the 2014 questionnaire for receiving countries inquired as to whether they review or monitor the practices of sending countries to fulfill their Article 4 obligations. Many of the receiving countries answered “No,” but some claimed they examined whether procedures for adoptability determination and subsidiarity principle were carried out in the sending country. The lack of dedicated monitoring and communication by receiving countries with their counterparts in the sending countries provokes questions regarding the extent of cooperation that countries require to address intercountry adoption abuses and irregularities. Further, where such cooperation proves weak with little scrutiny, then do these legal frameworks and procedures serve to legitimize and disguise children’s rights violations? South Korea represents a clear example as its adoption program has been long regarded as professional and transparent by receiving countries, but as this article has shown, this is anything but the case (Lee, 2021).
In South Korea, the absence of a legal system in which competent authorities can determine adoptability and whether to send the child through intercountry adoption acts as a primary hurdle preventing it from ratifying the 1993 Hague Convention. Even after the revision of the ASPA, which introduced a court procedure at the end of the adoption process, the front end of the process, which includes the determination of adoptability, remains exclusively in the hands of private parties, such as birth parents and adoption agencies.
Adopted people’s right to know their origins
The problems previously described do not end with the child protection system but continue to impact the lives of those adopted. Interviews and articles on adopted people searching for their birth parents frequently color the pages of South Korean news media. A typical pattern among many of these stories describes a child found abandoned on the street or in front of an orphanage before being sent abroad. As their adoption documents lack information about their true birth circumstances, they contact their adoption agencies to retrieve their real documents. However, since these materials remain the private property of the agencies, adopted people have few, if any, recourse for action.
These issues only multiply and grow more pressing as more and more adopted people have their own families, especially those adopted during the height of South Korean intercountry adoption in the 1970s and 1980s. The children and grandchildren of these adopted people also seek to know their birth family and their origins. The search does not stop with adopted people.
However, tackling these problems requires acknowledging that South Korea deliberately violated adopted people’s right to know their origins by devising and leveraging laws, policies, and practices that encouraged the erasure, distortion, and fabrication of adopted children’s origins. Therefore, special measures should be prepared to redress these damages and compensate adopted people for the obstacles they endure to access their true birth information.
Conclusion
Historically, legal reform of adoption laws in South Korea concentrated on the role of agencies without including the responsibility of the government. To address the government’s systematic efforts to evade its duties, the participation of adopted people’s groups is critical. As nationals of the receiving countries, adopted people may exert pressure on their respective states to initiate change while also advocating for their rights in South Korea. Intercountry adoption represents the actions of more than a single country; therefore, efforts for reform must also entail engaging more than the sending country.
Intercountry adoption constitutes the close interplay of receiving and sending countries to construct a set of procedures and legislation to place children abroad. While sending countries, like South Korea, erected and altered legislation and policy to facilitate this transfer of children, the recent investigations by several European countries have exposed that receiving countries are also culpable in the illicit activities of intercountry adoption (Bergsten, 2021; Committee Investigating Intercountry Adoption, 2021; “Switzerland urged to pay reparations for illegal adoptions from Sri Lanka,” 2021). However, without scrutinizing the interrelations of the laws and policies of receiving and sending countries, as well as the involvement of adoption agencies and intermediaries, understanding the full depth and extent of adoption irregularities may remain elusive. If governments endeavor to uncover rights violations through intercountry adoption investigations, then they should dedicate greater effort to understanding the views of adopted people and listening to those people who were deprived of their voices years ago when they were sent to faraway lands.
Footnotes
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
