Chicago Journal of International Law


This Development argues that the international community should focus its energy on finding ways in which to support African families. Birth parents need this support so that they are not forced to place their children into orphanages when the child has family members who are willing but unable to care for them. African children who are placed in orphanages are often adopted by individuals living outside of Africa, thereby leaving them without connections to their countries of origin. This Development further supports the goals laid out in the African Charter on the Rights and Welfare of the Child ("African Charter"), which include restricting intercountry adoption to an option of last resort. Although this Development seeks to encourage the international community to help improve the situations of citizens in African countries, it does not argue that intercountry adoption is wrong or that intercountry adoptions should be discontinued. Instead it attempts to show that intercountry adoption should not be seen as a solution to a much greater problem. If and when intercountry adoption is allowed, it should be properly implemented, monitored, and enforced, while conclusively evaluating the possible effects, both negative and positive, of intercountry adoption on the child. Part I introduces a brief history of Africa, which is followed in Part II by an investigation into the roles played by the different treaties that address intercountry adoption. These treaties have different requirements and preferences and play an important role in determining what ensures that an intercountry adoption is in fact "legal." Part II also discusses the growing popularity of international adoptions within the US. This Development next investigates whether intercountry adoption is in the best interest of the child. Part III analyzes a South African court's decision in Minister for Welfare and Population Development v Fitzpatrick where the court found a provision of South Africa's constitution unconstitutional. The provision had restricted adoption to South African citizens, therefore disallowing non-citizens from adopting children from South Africa. The restriction was found to be inconsistent with another section of the constitution which enumerated the rights of the child. Part IV then discusses some of the pitfalls associated with allowing intercountry adoption, including issues regarding: the rights of the birth parents, the implications of trans-racial adoptions, gender preferences, child trafficking, and mechanisms for enforcement. Part V concludes by attempting to determine how the international community and implicated authorities should define "best interests of the child." [CONT]