The outgoing and incoming administrations are battling over pending regulations and appointments. The Obama administration wants to solidify its policies, and the transitional Trump team wants a free hand implementing new policies. Understandably, there is little room for agreement on many of these issues.
But there is one area where the president and the president-elect should be able to unite — protecting children globally against the horrors of institutional life, and enabling prospective parents to bring those children into their homes and hearts. The general public and politicians on both sides of the political aisle tend to agree that adoption is a good option for the world’s orphaned, abandoned and relinquished children. Yet, a small number of officials in the current Department of State have hijacked U.S. adoption policy, promoting positions never authorized by Congress and positions that it is unlikely President Obama would endorse were they brought to his attention.
In 2008, Congress named the U.S. Department of State as Central Authority under The Hague Convention on Intercountry Adoption and delegated to it the responsibility of providing oversight for adoption. Without question, the State Department has failed miserably in carrying out the fullness of their responsibilities to implement policies and practices that allow the United States to serve this very vulnerable population of children through intercountry adoption. The policies enacted by the State Department have helped create a human rights crisis of historic proportions.
Since 2004, the numbers of children adopted from other countries into U.S. families has plummeted — down now by a total of two-thirds. The result is a disaster for children, most of whom have no alternative but to live, and die, in institutions. The social and brain science has conclusively demonstrated that institutions destroy human potential, imposing lifelong mental and emotional harm on those who survive physically. Adoption, whether domestic or international, is the only hope for some of these children and enables them to overcome much of the damage suffered and, when adopted early enough, to thrive in their new families.
But the current State Department has spent the last eight years creating new barriers to international adoption, joining with anti-adoption forces that equate such adoption with child trafficking, First World imperialism and cultural genocide. Seemingly owning up to their failed policies, the State Department pledged to Congress and the adoption community a renewed focus on intercountry adoption, promising a “new era” of serving children everywhere in need of a family, and asked for our support and patience as they embarked on developing a new and better way.
Believing that they were sincere, many of us in the adoption community waited with expectant hope that positive change was finally coming — and committed ourselves to working collaboratively with the State Department to address intercountry adoption’s most urgent needs. Much to our collective disappointment, on Sept. 8, the State Department announced what the new era of intercountry adoption would look like (Search Docket No. DOS — 2016—0056 at Regulations.gov to view). Instead of solutions, their plan is to impose new burdensome regulations on intercountry adoption — and to write for themselves within these regulations additional regulatory powers not currently available to them. Particularly distressing is that many of the proposed regulations are not new, but old ideas previously rejected by the State Department as impractical when the current regulations went into effect in 2008.
The State Department received nearly 500 public comments from adoptive families, adoption professionals, members of Congress and other private or public agencies to their proposed regulatory changes, almost all expressing opposition and grave concern over the harmful impact these regulations would have on children should they be implemented as drafted. The proposed regulations were so controversial that more than 27,000 concerned supporters of intercountry adoption signed a petition asking the State Department to withdraw the proposed regulations and start anew; this time working with the full community of people impacted by adoption.
With a new administration taking office in a few weeks, the State Department is now trying to rush through these regulations. Meanwhile, almost the entire adoption community has opposed the regulations, as they will likely further the shutdown of international adoption and further limit the U.S. from helping vulnerable children. Moreover, these regulations are inconsistent with existing law. They have been opposed by the Congressional Coalition on Adoption leadership and the Small Business Administration, which called for their retraction.
The State Department is also trying to force through an appointment for the key position in charge of adoption policy, the special adviser to the secretary on adoption and abduction, a position that serves at the will of the secretary. The person now holding that position has been principally responsible for the department’s current adoption policies, and has made known her plans to retire in the spring of 2017. Instead of allowing the incoming secretary of state to select his own adviser, Secretary of State John Kerry has already selected her replacement, and there is every reason to expect that this person would continue the disastrous policies initiated by the current special adviser.
President Obama and President-elect Donald Trump should be able to unite on stopping these regulations and this appointment.
• Elizabeth Bartholet is a professor at Harvard Law School and Chuck Johnson is president and CEO of the National Council for Adoption.
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