A CRITICAL ASSESSMENT OF THE REGULATION OF INTERNATIONAL ADOPTION IN IRELAND AND THE US Introduction
The purpose of this essay is to conduct a critical analysis between regulations governing intercountry Adoption in Ireland and the U.S. The key treaty governing intercountry adoption in these countries is the Hague Convention of 1993 as both Ireland and U.S are signatories of this treaty. Prior to the 1993 convention there had been attempts to harmonise international adoption laws between countries, beginning with the 1965 Hague Convention. In which the member States met to establish the first international uniform procedures for intercountry adoption1. This Convention, titled the "Hague Convention on Jurisdiction, Applicable Law and Recognition of Decrees Relating to Adoption" was an attempt to regulate laws regarding adoption between different countries and indeed it addressed numerous important issues surrounding intercountry adoption, confronting issues such as jurisdiction, choice of law, and mutual recognition of adoptions, it also introduced a child centred approach stating that contracting countries must ensure that it is the best interests of the child’2 to adopt. However though the 1965 convention held laudable ideals ultimately it proved to be fruitless due to its narrowness of scope. For instance Art.1 stated that the convention will only apply where;
‘’Adoptive Parent or Parents … qualify as a national and habitual resident of one of the contracting states’’’3.
However significantly and ultimately most damaging to the enforceability of the conventions objectives is that it permitted contracting states to disregard any provisions deemed to be against their public policy. Essentially inserting an escape clause into the convention that ensured contracting states could basically continue regulating their intercountry adoption laws as they saw fit4.
A Second attempt to introduce a harmonised Intercountry adoption process across states came with the European Convention on the Adoption of Children5. The objectives of this convention was to set a base line for minimum standards of adoption in each contracting member state and sought to create a legal balance between the interests of birth parents, adoptive parents and adoptee’s. This convention also advocated the ‘’clean break’’ or ‘’full adoption’’ model as the most efficient model of adoption6. However it should be noted that this convention was not solely focused upon the issue of Intercountry Adoption and though in attempting to harmonise the substantive law in each individual contracting state it went some way towards avoiding conflicting issues of law arising it fell short in others. Mainly in that it failed to establish uniform procedures in Intercountry Adoption, for example the Convention does not require states to respect adoption laws and institutions of other states7 and without this there was never a guarantee that an Intercountry adoption in one state would be recognised in another.
Hague Convention 1993
The Hague Convention on Intercountry Adoption, adopted on May 29, 1993, was a breakthrough in international law. As one author comments,
"this agreement signifies the beginning of a global community approach to international adoption concerns and cooperation, and recognizes that private, partisan competition, and unregulated adoption work cannot continue without establishing proper international childcare principles and practices’’8
Perhaps the most significant aspect of this convention is that it represented the first formal recognition of Multinational Intercountry adoption. The Convention improved upon preceding international instruments, and added new safeguards to the intercountry adoption process by regulating both the sending and receiving countries9. Article 1 of the 1993 Hague Convention states that its objectives are threefold: To establish safeguards to ensure that...
Bibliography: Kerry O’halloran ‘Adoption Law and Practice’ (Thomson Reuters Roundall 2nd ed 2010)
Gates, Crystal J ‘’ China 's Newly Enacted Intercountry Adoption Law: Friend or Foe’ (7 Ind. J. Global Legal Stud. 1999-2000)
Sinead Kearney ‘’ Recent Developments in Adoption Law’’ ( Trinity College Dublin 2008)
Martin, Jena ‘’ Intercountry Adoptions: Laws and Perspectives of sending Countries’’ (U.C. Davis Journal of International Law & Policy 1995)
Troy, Colin Joseph ‘’Members Only: The Need for Reform in U.S
McCaughren,& Parkes ‘’ Ireland and the Global Landscape of Adoption: The Adoption Act 2010—A Missed Opportunity?’’ (Irish Journal of Family Law 2012)
Wechsler, Rachel J
Nigel Cantwell ‘’Having it both ways on adoption policy’’ (IrishExaminer, Thurs, Sept 5, 2013)
Rosita Boland ‘‘Changes to adoption law have shattered my hopes of becoming a parent’’ ( IrishTimes, Sat, Mar 8, 2014,)
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