Tuesday, December 11, 2007

Markets in Infants: The Hague Convention on Intercountry Adoptions, National Reform Efforts in Guatemala and Consumerism in the United States

Everything has always been for sale in the global entrepots that serve the master classes of global society--whether they be Western matrons or high ranking members of a nomenclatura, or the scions of plantation cultures in search of new amusements. The difference between this and earlier ages, perhaps, is the ease with with such transactions may occur. As the cost of production and distribution has gone down, the propensity of culture to elaborate and act on its morals increases. Technology, innovation, and the growth of markets (whether or not regulated by the state or some suitable alternative mechanism) has made it possible to indulge the moral senses in ways unimaginable a century ago.

With the exception of the abolition of formal slavery and the emancipation of women, the moral sense of the status and condition of children has undergone a singularly dramatic change.

A century ago children where important elements of the labor market. They were valuable for the labor output one could extract from them--parents, siblings, employers, and the state. Producing children could be a burden, but it could also help produce wealth--enough at least for the family or other base economic unit to survive. This has tended to be true in the agricultural sector but became even more important in the industrialization of Europe and the Americas. Yet, the industrialization that made child labor first vital also contributed to its growing irrelevance, as the cost of production in important sectors of the economy decreased. As important, perhaps, the value of children as commodities became greater than the value of children as elements of the labor market.

The sentimental value of children grew as their economic value decreased. By the 1930s in the United States, child labor had been substantially restricted (at least as a formal matter) and baby farming had become an important element of political culture at the national level, producing Congressional inquiries and thunderous calls for regulation. See Viviana A. Zelizer, Pricing the Priceless Child: The Changing Social Value of Children 199-202 (Princeton NJ: Princeton University Press, 1994). National markets in child selling became more and more regulated. The price of babies in the black market in the United States, about $10,000 at the upper ranges in the early 1950s rose to about $25,000 in the mid 1970s. Id. The age of the trophy child had begun in earnest.

There was, of course, a race and ethnic element to this change. Not all children were adoptable. Dark skinned and male children tended to be seen still as fit only for labor though Zelizer notes ethnic variations--Jewish adopters, for example appeared to prefer male to female children and might have adopted for other than sentimental or social status reasons (Id., at 194). But for most people able to afford adoption, pretty little blue eyed girls were prized in the first half of the 20th century. The sentimental cult of the trophy child as the ultimate consumable was well established in the United States well before the Second World War. And that cult depended on the female child, as both proof of the economic independence of the purchasing family and as insurance against the frailties of old age. Id. at 193-194. These trophy children provided a template that has carries over to this day.

By the time globalization became well established in the 1980s, the taste for adoption had changed. First the cost of production and the risk of liability skyrocketed. Second, the nature of status adoption changed as well. Second, there were far less prestige points associated with domestic adoption than of foreign adoption. What better way to show one's social consciousness, to make the world a better place, than to take an infant from some benighted part of the world to offer them the opportunities of the developed world. As one set of prospective adopting parents put it: "One of the reasons we picked Guatemala specifically is that the country has no social welfare system, there are no public orphanages, there is no other place for these babies to go." U.S. Mother Defends Guatemala Adoption, BBC News, Aug. 13, 2007. Given these changes in domestic tastes and expectations, it is not surprising that the infant market went global. Chinese, Eastern European, and then Central American infants became much in demand as the production of fashionable American babies became scarcer. "Almost 5,000 Guatemalan babies were adopted by foreigners in 2006. The UN says most of the children went to the United States, making Guatemala the second largest source of children adopted in the US, after China." Guatemala Tightens Adoption Rules, BBC News, Dec. 12, 2007. American infants that were not suitable for adoption--too old or too "difficult" continued to be passed over.

And, of course, demand affected supply. In a global system in which demand vectors of developed states set the terms for the focus of production, it stood to reason that as demand for babies increased, and the price went up (at least in relative terms), supply would rise to meet demand. In some places, where child limitation policies were in place, it became useful to sell off excess children to permit families to comply with legal restriction on birth production in a way that suited taste. That meant a vast oversupply of orphaned or abandoned female children. In other places, where industrial development was limited, a woman might find that the highest and best use of her body was in the production of babies for export. In many cases, selling children was the only means to raise sufficient finds to survive. One Western adopting family noted that they "don't know the specifics, but I think most mothers relinquish their children because of the extreme poverty and the lack of access to and cultural unacceptability of contraception." U.S. Mother Defends Guatemala Adoption, supra. In some cases developing states either relaxed legislation on restrictions on transnational baby selling, or turned a blind eye. Corruption was never too far from the scene.

There was a lot of money to be made. Sadly, most of did not go to the women producing infants for sale. Instead, repeating an old pattern evident in the United States from the early 20th century (Zelizer, supra) market facilitators tended to take the lion's share of the profit. And the possibilities for exploitation, baby stealing and the like rose as the value of babies increased. But there WAS a lot of money to be made, and virtually all stakeholders--from intermediaries, to lawyers to the state were being cut in. In Guatemala intermediaries were said to earn upwards of $40,000 per infant. See Guatemala Tightens Adoption Rules, BBC News, Dec. 12, 2007.

In this context, political reaction was sure to follow. There are several possible approaches to responding to the commodification of children, and the ethics of feeding the demand of Western families for children from exotic locales. Some states, like Malawi, have made sought to foster national markets in babies at the expense of international markets. See Raphael Tenthani, Courtney Rubin and KC Baker, Human Rights Group Tries to Halt Madonna's Adoption, People Magazine, Oct. 15, 2006. Guatemala has chosen an interesting to reform: cut out the middleman (who extracts the largest value added in the chain of purchases and sales producing an adoption) and eliminate direct profit to the birth parent. "The new law will eliminate mediators, create a federal adoption agency and prohibit birth parents from receiving financial compensation." Guatemala Tightens Adoption Rules, supra. The point, it seems, was to eliminate a certain sort of profiteering. ""We hope to bring an end to these criminal mafias of lawyers and illegal foster homes that have run adoptions in the country," Congresswoman Nineth Montenegro told reporters after the vote." Id. Guatemala, then will substitute one form of profiteering for another. In place of the private system, a state controlled system of adoption, with its set of fees and the like, will serve as the centralized mechanism for markets in infants in Guatemala. And that may increase the transaction costs of foreign adoption.

This was a curious choice. While it is true that the reforms might effectively shift power over the internal market in babies from the private to the public sector, it is not clear that this will solve the problem of the market itself. Women have no financial incentive to produce babies, but neither do they have any incentives to keep them either. Moreover, the Guatemalan state may itself have exposed itself to greater liability abroad--especially in the United States. It is possible that under current interpretations of the federal Foreign Sovereign Immunities Act of 1976 (28 U.S.C. §§1602-1611 (2000)), Guatemala may find itself without sovereign immunity in cases involving the sale of babies that go bad in the United States. Under the FSIA states, like Guatemala, may not seek the protection of sovereign immunity from its commercial activities. The meaning of commercial activities has been subject to administrative interpretation. The U.S. Department of State has provided a measure of non binding information about the Act in its Foreign Sovereign Immunities Act circular. More importantly, the Supreme Court has developed a standard of interpretation under the Act that may be broad enough to deem the activities of the Guatemalan government as commercial for purposes of immunity. This is especially the case where, as here, the state has merely privatized what had been a private sector industry. See Argentina v. Weltover 504 U.S. 607 (1992); but see Kingdom of Saudi Arabia v. Nelson 507 U.S. 349 (1993). Indeed, the concern of the Guatemalans ought to be greater given some recent activity in the appellate courts that suggest a willingness to interpret the commercial exception to sovereign immunity quite broadly. See, e.g., Guevara v. Peru (11th Cir., 2006 (reward for capture of fugitive). Because the reforms may place Guatemala in the position of market participant rather than market regulator, it may face exposure in U.S. courts. It is not clear that Guatemalan legislators understood this risk as they moved to make points with the media, internal constituencies, demand side states (especially the United States) and that amorphous but powerful global civil society sector with a particular agenda on this issue.

Still, it can be assumed that one hope that this reform will reduce the great ills identified under the old system--women using their bodies for profit by making babies for the export markets, intermediaries profiting from the functioning of an active market for infants, corruption of state officials required to turn a blind eye to aggressive interpretations of law and right. Still, there should be a sense that the reform was done more for show than in the real hope of controlling the infant market. The problem in infant markets is similar to that in the market for illicit drugs--it is driven by demand, And demand is not centered in Guatemala, it is centered in the homes of the middle and upper middle classes in the developed world. But nothing is being done to curb that demand--no substantial efforts are being made to provide adoption of "unsuitable" American babies (or their older siblings), for managing the liability for adoption, the rights of birth parents and the risks to intermediaries. Much of the demand problem is cultural--the value of trophy children are still high. And perhaps this is so for all of the "right" reasons. And the media and media leaders continue to set the example: "Angelina Jolie brought home her fourth child on Thursday from the Vietnam orphanage where he has lived since 2003." Inside Angelina's Adoption, US Magazine, March 15, 2007.

The necessary consequence points to standardization and control from the demand side. And it is in this context, that one can better understand the Hague Convention on Intercountry Adoptions, adopted December 12, 2007 by the United States in the Netherlands, makes sense. "The United States, the world leader in international adoptions, will join more than 70 nations committed to standardizing policies, procedures and safeguards to reduce corruption in the largely unregulated adoption marketplace." Jane Gross, U.S. Joins Overseas Adoption Overhaul Plan, The New York Times, Dec. 11, 2007. The Treaty will permit the United States to federalize intercountry adoptions in a more thoroughgoing fashion.
Each nation names a central authority — here, the State Department — to establish ethical practices, require accreditation for the agencies handling the adoptions, maintain a registry to track complaints and create a system for decertifying agencies that do not meet the standards. In addition, once the treaty is fully put in place in April, parents seeking a visa for an overseas adoption must demonstrate to the State Department that a child has been properly cleared for adoption, that a local placement had been considered, and that the birth parents were counseled on their decision and have signed consent forms. Prospective adoptive parents also must show they are properly trained for what could be a rocky transition.

Id. The focus was clearly on control of global markets in children by changing the practices of demand side stakeholders. “'Americans adopt more foreign-born children than all other countries in the world combined,” said Maura Harty, the assistant secretary of state for consular affairs. “As a Hague Convention country we can — we must — require reform and transparency in some countries or adoptions to the U.S. will stop.'” Id.

The Americans, then, are expected to use their power under the international treaty, to pressure other treaty signatories to comply in ways that would satisfy them. And one of the first targets was Guatemala. Quoting adoption agency employees, the report noted that "the worst problems for adoptions from Guatemala, which has ratified the treaty but has not developed legislation to enact it. The United States has threatened to suspend adoptions from there because of accusations of corruption. Agencies working in countries that have ratified the treaty must be accredited, a process under way in the United States."

Aha! The pieces thus come together nicely. Now it is possible to better understand the context in which Guatemalan reforms were undertaken. Guatemala had to meet its international treaty obligations, and did so in conformity with the requirements and sensibilities of the United States, as the representative of the largest market for Guatemalan children. Guatemala will continue to service the demand for babies for the America market, but now they will do so in conformity with the sensibilities of the United States, as written into their law. Economic realities are thus manifested in this framework. Reform in Guatemala appears to be sourced as much from the outside as from inside. And the shape of that reform may have as much to do with the requirements of the international market, and international market regulatory systems, than it has to do with the desires and choices of the people of Guatemala. See Larry Catá Backer, Economic Globalization Ascendant: Four Perspectives on the Emerging Ideology of the State in the New Global Order, 17 Berkeley La Raza L.J. 141 (2006).

The substantive norm choice has been made at the international level--the market in children is to be managed, not suppressed. Management power is to shift from private to public institutions. A new layer of oversight is instituted, and with it greater costs and new forms of protections, mismanagement and corruption will arise. Individual states with the desire and the ability to resist the pressure of global demand for premium babies, Malawi for example, may continue to do so. Others default to the international norm. The state, at once more powerful now, is at the same time less free to shape its own internal destiny. And the market in children remains

No comments: