JURIST Guest Columnist Brittany Giusini, Widener University School of Law Class of 2014, discusses the negative impacts of the recent Russian ban on US-based adoptions…

On January 14, 2013, Russia denied a petition, effectively preventing US citizens from adopting Russian children. Several commentators submit the ban is a response to US President Barack Obama signing the Magnitsky Act into law in December 2012 — an act meant to punish Russians who were previously involved in human rights violations. One part of the Magnitsky Act prohibits Russians involved in human rights violations from traveling to the US and from owning assets and real property located on American soil. Irrespective of the reason underlying Russian’s denial of the adoption ban, prohibiting US citizens from adopting Russian children will undeniably have widespread societal, economic and legal implications. Most importantly, such a ban will stall ongoing cooperative efforts between Russia and the US regarding important international law issues.

I. Adoption Overview

The ability and manner in which to adopt children varies both within, and among countries, as there is no set international law regarding adoption procedures and rights. Even the US Constitution, according to federal case law, does not guarantee the right to adopt a child. The adoption process is a creature of state law and parental rights involving adoption have historically been governed by legislative enactment. Therefore, even in the US, a country which places great importance on familial rights — such as the fundamental right to control and direct the upbringing of one’s child — there remains a lack of formality regarding adoption procedures. These evident fragments are demonstrative of the difficulties faced by individuals seeking to adopt; fragments which are magnified when inter-country and international adoption is sought.

Notwithstanding this fragmented adoption process, international agreements have played a role in making adoption procedures safer and easier. Both Russia and the US have been active in these efforts. Notably, the Hague Adoption Convention, closing in 1993, was an international effort to safeguard inter-country adoptions. The agreement put in place various structural changes to ensure the safety of adoption across country lines. These changes include adoption certificates, documentation of fees and evaluation of agencies. Though Russia is not a party to the Convention, it did sign it, symbolizing an effort to work with other nations on this issue. Further, signing the Convention signifies intent to become a party to the Convention. Though Russia appears to be willing to cooperate with other nations on adoption issues, its recent banning of US citizens from adopting Russian children represents a huge step back in the international efforts to harmonize adoption procedures.

II. International Implications

Passage of the ban exemplifies the turbulent relationship between the US and Russia in international affairs. Political gaming on Russia’s part calls into question the strength of international conventions and the lack of enforcement that plagues them. What binds these countries when outside factors come into play, creating tension and a desire to act against the agreements once thought to be beneficial? International agreements, such as the Hague Convention, and the principles guiding them, seem to fall by the wayside in times of international tension. Unlike intra-national issues, where a nation depends on its own laws to rectify issues and prevent further harm, international disputes are more difficult to resolve because countries often ignore agreements during times of strife. I argue that lack of enforcement mechanisms often lead to an outright disregard for international agreements. For example, even prior to Russia’s ban on the adoption of Russian children, the US refused to comply with the convention on at least one occasion.

Technically, since Russia did not ratify, and is therefore not bound to any specific provision in the Convention, the recent ban on the adoption of Russian children does not violate it. Even though the Convention does not explicitly deal with the right to adopt children from Russia nor prohibit a ban such as the one put in place, it signifies Russia’s active efforts to safeguard adoption. Moreover, Russia’s recent behavior exemplifies countries’ constant disregard for progress made in the international realm. With no uniform international law system, countries can engage in this back-and- forth activity while trying to disadvantage another country. With some mechanism binding the cooperating nations, actions such as the Russian ban will be minimized. In the wake of weak enforcement mechanisms, countries have no incentive to prevent bans such as this. These countries have little incentive to refrain from passing a ban in retaliation of another country’s past action. As a result, this puts a hold on the progression of international affairs and is even more damaging to the status of Russian orphans.

III. Effect on Society and the Child

Statistically, the ban will have grave consequences for the Russian society as a whole:

About 1,000 Russian children were adopted in 2011 by parents from the United States, which leads in adoptions from Russia, and more than 45,000 such children have been adopted by American parents since 1999.

As one commentator has suggested, the ban eliminates the only chance for many children at having a family and a home. Most orphans with disabilities have no chance at finding a family other than through American adoption. In fact, orphans with disabilities, if left in Russia, will most likely not live past the age of 10. “More than 730,000 children in Russia either have no parents or have been abandoned by their parents” and most are living in conditions of “cruelty and neglect.” Though the number of orphans has been calculated to some degree, the number of children who remain homeless in Russia is unaccounted for. The ability of Americans to adopt Russian children has spared the lives of many. This is mainly due to the fact that Russia does not have a strong adoption process in place and many orphans stay in facilities until they reach adulthood. Russia, by implementing this ban, is not only hurting the well-being of children living within its borders but is making their social conditions worse off. This is because the Russian economy is experiencing low growth.

By disallowing US citizens from adopting Russian children, more orphans will be living in Russia, imposing a greater financial burden on a Russian government already witnessing lagging economic growth. Thus, there is no winner in light of this ban. Russia’s economy losses, US citizens lose, international relations lose, and most importantly, the Russian children lose.

Brittany Giusini is a member of Widener’s Law Review and the Delaware Journal of Corporate Law. She is an active member of the Military Law Society, International Law Society and Animal Lovers’ Society. She has worked as a research assistant, campaign assistant and summer legal intern.

Suggested citation: Brittany Giusini, Adoption Atrocity in Russia, JURIST – Dateline, Feb. 9, 2013, http://jurist.org/dateline/2013/02/brittany-giusini-russian-adoption.php