Principle of Subsidiarity

The United Nations Convention on the Rights of the Child (CRC) significantly informed the language and formulas of the Hague Adoption Convention. A closer look at some of the shared principles, however, reveals important differences between the Convention and the CRC. One of the Convention's core principles, for instance, is the principle of subsidiarity. Subsidiarity means that, at all times, preference should be given to local solutions for a child's care before resorting to international adoption. Articulated in Article 21, the CRC understands subsidiarity as the following:

For the Hague Adoption Convention, subsidiarity, as articulated through the preamble, means the following:

At first glance, the subsidiarity principle in the Hague Adoption Convention seems to align with the CRC. But the precise wording of the principle reveals that it contains a crucial difference: while the Hague Convention emphasizes “family,” the CRC stresses “care.” In the latter, the CRC widens the opportunities for children to be cared for in local arrangements before international adoption (which can be interpreted as including foster care, group homes, and institutional care), defined by the CRC as a transnational alternative form of care. By focusing on “family,” however, the Convention limits this opportunity. Although the principle of subsidiarity is not clearly defined in the Convention itself, the guides are more explicit in their language and, as I will demonstrate later in the article, strongly suggest that permanent placements in families are privileged over alternative forms of care. In practice, this means that children can be put up for intercountry adoption as soon as it is established that they cannot be placed through domestic adoption.

Reference TurnerChad Turner (2016) describes the discussions on subsidiarity among member states preceding the drafting of the document. Drafters made a fundamental shift from the CRC's emphasis of adoption as “care” to the Hague Convention's final emphasis on permanent families. Although consensus was reached on the wording, member states from the non-Western and developing countries had suggested different wordings and had criticized the drafters for not adequately adhering to the CRC. Egypt, for instance, was especially critical to the direction that the drafters were taking the document. The delegate insisted that Kefala—an Islamic form of fostering—be included in the document as an alternative form of care (Reference TurnerTurner 2016:105). Moreover, this delegate accused the drafters of disregarding the CRC by not providing provisions that would consider the children's nationality, culture, or religion. Such clauses of cultural diversity are encompassed by the CRC and are central to the African Charter on the Rights and Welfare of the Child.Footnote ⁶

The practice of international adoption today still engages with these very same discrepancies around subsidiarity. Studies on child circulation in South America (Reference FonsecaFonseca 2002; Reference LeinaweaverLeinaweaver 2008), practices of kefala in Islamic countries (Reference BargachBargach 2002; Reference MalingreauMalingreau 2014), and fosterage systems in Africa (Reference BowieBowie 2004; Reference Notermans and BowieNotermans 2004) illustrate the myriad forms of alternative child care practices in local settings, revealing the difficulties of streamlining the system according to some supposedly shared idea of child adoption. Local practices in sending countries more often than not practice different forms of care that do not align with requirements of permanency set out by the Convention. What often happens in adoption practice is that the principles of subsidiarity are met according to the Hague Adoption Convention when they would not have been met according to the requirements of the CRC.

Making Adoption Compatible

The debate on subsidiarity has been entangled with the discussions on what are known as “simple” and “full” adoptions. Simple adoptions do not terminate the original parent–child relationship; instead, a new parent–child relationship is established on top of it. Full adoptions, by contrast, completely terminate the preexisting filial relationship.

During negotiations for the Hague Convention, the drafters considered simple adoptions to be problematic and sought ways to address them in order to make adoption compatible across borders. In his discussion paper, Van Loon describes how developing countries in Latin America, Asia, and Africa mostly facilitate simple adoptions rather than full adoptions (this is pertaining to incountry adoption). Citing anthropological research, he writes that “in many small scale societies adoption is between relatives; it is not always permanent although this may be the intention at the time of adoption; it does not involve cutting of ties with the birth parents; and may involve continuing or additional inheritance and Reference Van Loonsuccessional rights” (1990:34).Footnote ⁷ He acknowledges the challenges that these situations can bring to receiving states when a child is adopted by a person or couple in a state that may only have the capacity to accept full adoption (like the United States). In other words, the relativity of adoption in the Global South can pose a problem to the narrower idea of full adoption in the Global North.

Van Loon also acknowledges that legal arrangements around adoptive parenthood are changing in the Global North, leading to more openness and the involvement of birthparents and the original biological families in children's lives after adoption. Indeed, during the 1990s—and even more so in the decades thereafter—the increase of stepparent families due to rising divorces, the growing practice around reproductive technologies, and the emergence of LGBTIQ families have all led to the expanding formation of blended and “recombinant” (Strathern 2005:26) families. Some of these arrangements are legally recognized through existing and new adoption laws. France, for instance, revived an existing law in “simple adoption” from its Civil Code of 1804 to address contemporary legal provisions in stepparent arrangements. While relatively unknown to the general community (including scholars), simple adoptions are now the most common form in France, having surpassed full adoptions since the 1990s (Reference Mignot and HamiltonMignot and Hamilton 2015: 525; Reference PerreauPerreau 2014), though this applies only to domestic adoptions. In addition, the expanding emphasis on open adoptions within more and more countries (including the United States, Australia, and the European states) is challenging the closed nature of full adoptions that hitherto have been the norm in the Global North (Reference Smolin, Ballard, Cochran, Goodno and MilbrandtSmolin 2015: 29). While discussions are ongoing on how to implement these changes in law, institutions in some countries have already adopted multifaceted forms of open adoption in their daily practice.

Despite alternative forms of adoption in the Global South and the Global North, the 1993 Hague Adoption Convention works toward the achievement of permanent and full adoptions in cross-border arrangements. As worded in Article 2, line 2 of the Convention, “The Convention covers only adoptions which create a permanent parent–child relationship.” Drafters of the convention marshaled evidence from research in psychology and child development that claimed that permanent adoptions achieve more stability for the child and were hence in the child's best interest. Nonetheless, as Van Loon predicted, “The general ‘relativity’ of adoption in the Third World may pose special problems of a transcultural nature in the context of Reference Van Loonintercountry adoptions” (1990:209). This meant that concrete steps were necessary in practice to make adoption compatible with the proposed system.

The subsequent publication of the two volumes of the Guide to Good Practice indicates how this problem has been handled since the establishment of the Convention. These guides, drawn up in 2008 and 2013, were published by the Permanent Bureau of the HCCH with the aim of assisting the central authorities and contracting states that are responsible for applying the conventions, and to assist practitioners (judges, lawyers, notaries, social workers, etc.) working with the Convention.Footnote ⁸ The first guide explains, for instance, how the Convention includes a nondiscrimination clause in which “the child's rights resulting from the adoption should be equivalent to those resulting from a similar adoption made under national law in the receiving State”.Footnote ⁹ Although formally the Convention applies to both simple and full adoptions, the guides give room to transform them into full adoptions:

On the surface, like many documents of this genre, the language is slippery. The Convention is cautiously expressed (using terms such as “permissions” or “possibilities”), which seems intended to cover earlier concerns expressed by Van Loon and others, but also to foil a clear reading.Footnote ¹¹ The guide's suggestion of an “upgrade” hints at the opportunity to transform simple into full adoptions. In practice, this is exactly what is happening. The transformation of simple adoptions to full ones is an attempt to make adoption compatible in a global regulatory system. Such conversions are not entirely innocent. Active conversions contribute to facilitating a distinct form of legal adoption.

Anthropological research from different contexts throughout the world demonstrates that there are many ways of organizing family and alternative forms of adoption (Bargach 2002; Reference BowieBowie 2004; Reference FonsecaFonseca 2002; Reference Fonseca, Diana, San Román, Ballard, Goodno, Cochran and MilbrandtFonseca, Marre & San Román 2015; Reference LeinaweaverLeinaweaver 2008; Reference MalingreauMalingreau 2014; Reference Notermans and BowieNotermans 2004). In her research on family practices and values among Brazilian favelas, Reference FonsecaClaudia Fonseca (2004), for instance, demonstrates how since colonial times, a form of informal fosterage was common among working-class populations in Brazil. Here, children lived with extended family chosen by their birth mothers and rarely involved cutting off the original ties with birthparents. Following ideologies that deemed pitiful the kinds of kin arrangements existing among these communities, the state and its adoption laws intervened in these practices and followed the dynamic of what Shellee Colen has termed Reference Colen, Ginsburg and Rapp“stratified reproduction” (1995). Favela residents are on the bottom side of this stratification process, surrendering their children without fully realizing the legalities implicated by adoption, while middle-class Spanish parents and adoptive parents from the Global North are enabled in their reproductive desires.

In the context of Brazil, full adoptions were introduced to eradicate “direct adoptions,” (adoptions arranged directly between adoptive parents and birth mothers), which were considered by the elite to be prone to abuse. According to Reference FonsecaFonseca (2009), however, full adoptions brought benefits to middle-class adoptive parents in and outside of Brazil at the expense of poor birthparents. Moreover, in its combat against abuse and commodification, the Hague Adoption Convention allowed no contact between birthparents and adoptive parents before adoption, which was contrary to the practices of child circulation.Footnote ¹² Here, transnational institutional rules aligned the “best interest of the child” with “no contact,” which in the Brazilian context led to the suppression of the already restricted forms of agency that birth mothers have had in the past (Fonseca 2009:28–30). Such practices raise the troubling prospect that the Convention and its guidelines, although intended to offer safeguards and protection against abuse, also obscure local dimensions of adoption and transform the meaning of child adoption as it moves into the international sphere.

It is the “multidimensional” aspect of the Convention that generates friction and imbalance in its attempt to making compatible dissenting understandings of adoption. As an enabling instrument, it cannot avoid overriding some of its protective measures. The shift to “permanent family” from “care” and the preference of full over simple adoptions reveal the implicit predilection of Euro-American kinship knowledge in the restructuring of legalities around cross-border adoption. It holds the naturalized assumption that the family unit is made up of the nuclear unit, encompassing a maximum of two legal parents.

Double Movements: Enabling and Restricting Adoption

The 1993 Hague Adoption Convention has often been regarded as a response to the challenges that the global situation has brought to adoption practice. The solutions that worked for the cross-border adoptions of children orphaned by World War II were tailored to deal primarily with adoptions within Europe.Footnote ¹³ However, from the 1960s onward, such solutions could not cope with the steady increase in cross-border adoptions of children mainly from developing countries brought to welfare states in Europe, North America, and the Antipodes.Footnote ¹⁴ Complex legal situations emerged from these transnational child migrations, prompting questions about which laws should be followed and what rules should be put in place for the process to be more orderly. The situation represented a pressing “conflict of law” that required transnational legal measures. Furthermore, public debate in the 1970s and 1980s raised concerns over the expanding practices of child trafficking. Discussions during the drafting of the 1993 Hague Adoption Convention held these views in tension. While efforts to formulate a working treaty were intended to facilitate and enable the practice of intercountry adoption, they also sought to implant safeguards to protect child from trafficking and being bought and sold as if they were commodities.

In The Great Transformation, Karl Polanyi (2001[1944]) proposed the model of a “double movement” to designate the ways in which capitalism treats all exchange as commodity exchange (the first movement), and the ensuing ways in which society responds to such an unparalleled process of “marketization” (the second movement). It does so, not in a grand movement and countermovement, but in a series of successive waves, informed by a cyclicality of actions. However, not all forms of exchange can be successfully transformed to commodities. Polanyi refers to land, labor, and capital as being forms of “fictitious commodities,” since they are not intended to be traded in the marketplace. Children, commodified as either labor or capital, fall directly into this category. From a Polanyian perspective, an adoption “market,” left to its own devices, distorts the idea of humanity in profound ways, leading to the exploitation and harm of children. Unregulated, the circulation of children across borders has been prone to abuse that commodifies them. The Hague Adoption Convention may be viewed as a response to the chaotic expansion of adoption markets, the type of countermovement that Polanyi refers to as the “self-protection of society.” By signing and ratifying the conventions, states enforce transnational regulation to protect themselves against the instabilities of the market (Reference BurawoyBurawoy 2003; Reference GuthmanGuthman 2007). However, what I will argue in the next sections is that Polanyi's model is insufficient for explaining the kind of transnational treaty that the Hague Adoption Convention is.

Following the nature of the Convention as a private international law instrument, which objectives have always been on the enabling rather disciplining capacities (Reference WattMuir Watt 2011: 354) but coupled with the more normative dimensions from human rights discourse, I propose approaching the Hague Adoption Convention as a double movement within a countermovement. On the one hand, the Hague Adoption Convention has facilitated adoption markets, and legitimated adoption's place in a global reproductive economy.Footnote ¹⁵ On the other hand, it has also functioned as a protective instrument, one that safeguards children from abuses such as trafficking and buying.

Figures indicate that the number of cross-border adoptions worldwide increased by 42 percent between 1998 and 2004 (Reference SelmanSelman 2009:578). For the United States, the rise in adoptions of children from other countries between 1993 and 2004 was due almost exclusively to children coming from China, Russia, and Guatemala. According to Smolin, the rise of these three countries cannot be credited to the Convention, since the rise in China predated the ratification of the Convention in 2005, Russia never ratified the Convention, and Guatemala experienced a dubious accession process in 2002 and only started to enforce implementation in 2008. While I am not in disagreement with Smolin, my focus is not on sending countries or their formal adherence to the Convention. Rather, I concentrate on the receiving states and examine how the Hague Adoption Convention—as a legal instrument of governance—has contributed to the rise and fall of intercountry adoption by legitimating or delegitimating international adoption practices.

The Hague as Transparency Device

When I would ask adoption professionals in the United States and the Netherlands what “complying with the Hague” meant to them, they often said it referred to making their daily operations as transparent as possible. Transparency was a term mentioned for a variety of matters, ranging from costs and fees to communication and legal processes. The first Guide to Good Practice (2008) said the following about transparency:

The most obvious application of the principle of transparency lies in the clarity and openness in the communication of costs involved in the adoption process. This can refer to agency costs, including application fees, expenses for mediation, documentation, and legal matters, costs for home studies and screenings, translation, and travel. Transparency of costs also refers to the rules and ethical guidelines involving donations to an orphanage, financial relations between aid and adoption services, and the distribution and rationalization of monetary assistance to humanitarian and child welfare projects in sending countries. In the field of adoption, the imperative of transparency also applies to the disclosure of information, including data about the past and present practices of agencies, orphanages, and their facilitators.

I would argue that the Hague Adoption Convention functions as seal of ethical approval and can be approached as what Reference Harvey, Reeves and RuppertHarvey, Reeves, and Ruppert (2013) term a “transparency device.” Such devices are complex assemblages working in pursuit of global—in this case reproductive—governance. Transparency works as a reactive apparatus. By making visible “laws, regulations, policies, fees, and processes,” transparency devices are “purposeful apparatuses devised to enact transparency and provide a space of moral certainty about what constitutes good governance or harmonious social relations” (Harvey, Reeves, & Reference Harvey, Reeves and RuppertRuppert 2013:295, 299). In the case of international adoption, transparency represents a promise to deliver some form of certainty to the adoption process and to combat corruption and abuse in the system.

In adoption, people, such as social workers, adoptive parents, representatives of central authorities, orphanage directors, lawyers, translators, mediators, medical practitioners, as well as artifacts, such as legal documents, referral photos, video material, data systems, and software, all facilitate matching and thus become implicated by and constitutive of the transparency device. As Harvey and colleagues argue, these devices are vital for negotiating state–subject relations, although the state is often absent in enactments of transparency:

In receiving states, accountability at the level of transparency differs among agencies and depends on a variety of factors. One such factor I heard during fieldwork was whether or not an agency was sufficiently funded, either by the state or, in the United States, through private means, in order to fulfill its financial reporting requirements. The well-funded and well-endowed agencies were able to put in place enough professional people and administrative infrastructures, which, they asserted, made them more professionalized and led to more efficient practices of transparency, including financial transparency and expedient reporting. Smaller and volunteer-run agencies, meanwhile, struggled to meet the administrative requirements of the Convention.

But transparency issues were even more deeply related to the unpredictability of processes in sending countries. Transparency represented a means for receiving states to manage this unpredictability according to the Convention's principles. One of the core issues in transparency involved the management of privately arranged adoptions. Here, U.S. and European perspectives differed significantly, which I will discuss next.

American Worries: Transparency Means Bureaucracy

Although the Hague Adoption Convention is critical of privately arranged adoptions—namely, arrangements made directly between biological parents in one state and prospective adoptive parents in another—such arrangements are not forbidden. Private adoptions fall within the scope of the Convention, although they are subjected to requirements resembling those for agency-led adoptions. These requirements range from due consideration to the possibilities of local placements, the counseling of biological parents, the explicit consent of the birth mother (after giving birth), and the suitability of adoptive parents. As such, they lose their private character. The first Guide to Good Practice from 2008 states that:

The Guide makes a distinction between “purely private adoptions” and “independent adoptions,” with the latter used to refer to those cases where adoption arrangements made privately by prospective adopters are approved by their Central Authority or accredited body.

Although “independent adoptions” occurred in many countries, the United States is particularly known to facilitate them, since privately arranged adoptions were legal in some U.S. states. Until recently, anyone in the United States could start an adoption agency specializing in international adoption without accreditation or licensing from the federal administration. This changed in 2008, when the United States ratified the Hague Adoption Convention.Footnote ¹⁹ For agencies, ratification meant that they had to become accredited by the central authority, in this case, the Office of Children's Issues of the Bureau of Consular Affairs, part of the Department of State. And while privately arranged adoptions were commonplace before the implementation of the Convention, such arrangements became subject to international legal control that brought them under public scrutiny.

Members of denominational and other smaller volunteer-run agencies in the United States saw the implementation of the Convention as blocking the adoption process with more “red tape.” They understood the necessity of recording and documenting their actions but felt it hampered the expedient placement of children with families. As one case worker explained to me,

From this perspective, the bureaucratic paperwork accompanying the Hague Adoption Convention was arduous labor that seriously slowed down the bureaucratic process. They longed back to a looser system in which personal contact and trust were the tools of communication between countries and organizations. As one American informant explained:

Most of these organizations had their own contacts within their religious or charitable networks. Before the implementation of the Hague Convention, they placed their trust in these individual contacts in the countries of origin. Transparency regimes stimulated by the Convention slowed down the adoption process, since it meant relying on other mechanisms besides trust. Documentation, legal authorization, and medical reports were now the centerpiece of communication between organizations in the country of origin and those in the receiving countries.

The implementation of the Convention in the United States commenced in a turbulent time, one in which controversy over intercountry adoption dominated, marked by declining numbers, and publicized adoption scandals (Reference SmolinSmolin 2010: 441). One well-known advocate of adoption in the American adoption world was of the opinion that, to a considerable extent, the Hague Convention was responsible for the demise of adoptable children. When the United States implemented the Convention in 2008, many local institutions facilitating adoption in sending countries folded:

What my informant was alluding to was the interaction of transparency with the subsidiarity principle. As discussed earlier, the subsidiarity principle in the Convention states that intercountry adoption can only be carried out after due considerations have been made for placing the child within the home country. The implementation of the Hague Convention in states of origin that lack sufficient capacity or bureaucratic infrastructure to follow the subsidiarity principle has caused these countries to be passed over, since they could not meet the criteria of “due considerations.” In my informant's view, if there were more investment to strengthen administrative and legal capacities, these considerations could be met and more children would become available for intercountry adoption.

The United States signed the Convention in 1994, but did not bring the Convention into effect until 2008. While some argue that this was due to technical reasons (as a result of the large number of states in the United States with different rules and regulations around adoption), others argue that this tardiness was due to the perceived threat that the Convention would impede adoptions rather than facilitate them. However, the steady decrease in adoptions after 2004 preceded the implementation of the Convention, and many other factors contributed to the dwindling numbers of adoptions worldwide.Footnote ²² Indeed, as scholars have indicated, the Hague Convention might at best be only one of the reasons why intercountry adoptions continue to decrease dramatically (Reference SelmanSelman 2009; Reference Smolin, Ballard, Cochran, Goodno and MilbrandtSmolin 2015). As an ethnographic exercise, nevertheless, my fieldwork sought to understand the perspectives of people involved in international adoptions. Focusing intensively on the Convention, it may have been the case that social workers excluded other factors, because it was the reality they had to deal with most closely in their daily work.

European Counterparts: Not Transparent Enough

As mentioned earlier, “independently” arranged adoptions occur in many countries, including in many U.S. states. European states, however, tend to frown upon the phenomenon and see it as a legalized form of private adoption. While the move by the Permanent Bureau to replace private adoptions with independent adoptions through the Guide to Good Practice was seen by many in the United States as taking unnecessary control over privately arranged adoptions (as described above), other professionals, especially in Europe, saw the move as a necessary step to fulfill the safeguards of protection for the child and the birth mother.

In practice, however, the implementation of conditions surrounding “independent adoptions” remained ambiguous, and so such adoptions were seen as a cover term for privately arranged adoptions. In the Netherlands, an “independent adoption” was known as a “partial mediation” (deelbemiddeling). While some agencies there chose to facilitate these kinds of adoptions, others were opposed to them but were forced to review them by the Netherlands' central authority because of their expertise about particular sending countries. There was much debate about such arrangements and the time allotted to agencies for reviewing such cases. One case worker told me that, “for the allocated time and money that we get to review them, I can barely open the dossier.”Footnote ²³ Agencies were expected to review whether the arrangement was conducted in an orderly fashion and in compliance with the Hague Adoption Convention; while such work could take months and even years in their general practice, professionals were expected to review independent adoptions in a few days' time. These agencies clearly indicated that, with few resources and even less time to conduct the review, they were not able to ethically account for the process. Advising government to do something about independent adoptions has therefore been high on the agenda for many agencies and adoption reformers in the Netherlands.Footnote ²⁴

In contrast to U.S. agency staff, who viewed the transparency regime of the Convention as promoting overbureaucratization and thus slowing down or halting adoptions, agency staff in the Netherlands viewed the Convention as not transparent enough and states as not correctly implementing the Convention. Moreover, they felt that the Convention relied too much on the goodwill of other nations, which was especially problematic in the case of major sending countries, such as Russia and Korea that had not signed or ratified the Convention. In the opinion of these adoption professionals, thus, the source of bad practices was the insufficient implementation of the Convention. The solutions these critics offered remained within the realm of law and advocated a more rigorous adherence to the Convention through state control, assessment, and intervention. The resulting two volumes of the Guide for Good Practice published in 2008 and 2013 are good examples of how the reformers believed that “gaps” in legal practice could be resolved through more legality.

Although most professionals in the Netherlands critiqued the Convention for not sufficiently facilitating practices of transparency, some were skeptical of the idea that more rules could improve such transparency:

These professionals believed that ratification of the Convention did not necessarily mean that the adoptions were performed ethically in member countries, or, conversely, that nonmember countries, which had not ratified it, automatically implied they used unethical procedures. They pointed out that some “non-Hague” countries, for instance, South Africa, followed the Convention's principles much better in comparison with some countries that had ratified it. In the opinion of these professionals, the multiplication of rules and procedures, rather than fostering transparency, often led to opaqueness and false securities.

Capacities for Transparency

A recurring and contested discussion in both U.S. and European agencies was how to build so-called “adoption capacity,” in other words, how to promote a bureaucratic environment in sending countries so that more of their children who need to be adopted could become available for international adoptions. This was a complicated and fraught debate at a time when the availability of adoptable children had decreased dramatically, particularly when China restricted adoptions to married couples and when placements primarily encompassed older and special needs children. Agencies in North American and Europe turned to counterparts in Africa, such as those in Ethiopia. As large numbers of Western agencies rushed to Ethiopia to set up international adoption programs, some made attempts to do this according to the Convention and its principle of transparency. This required proper documentation to assess subsidiarity. As one director of a respected American adoption agency explained to me,

The degree of unpredictability in a country, especially “non-Hague” countries, is something that agencies and prospective adoptive parents find hard to grapple with. Clients were often well-educated middle-class individuals who expected professional accountability and believed that the agencies they selected would be able to exercise some form of security and control of the adoption process (Reference Van Wichelensee Van Wichelen 2014). However, the process became even more unpredictable as the number of children available internationally for adoption declined and as agencies had to search for and adapt their practices to new countries.

As described earlier, the Convention's subsidiarity principle differs from the subsidiarity principle of the Convention on the Rights of the Child (CRC). The Hague Adoption Convention clearly prefers permanent placements and favors intercountry adoption over care that is legally less defined, such as institutional care, foster care, or simple adoptions. This difference becomes acutely visible in the efforts by agencies to advocate and help shape in-country adoption capacities in states of origin. One of the Dutch organizations, for instance, was working on a two-pronged approach to Ethiopia (a “non-Hague” country). They facilitated adoptions from the country to the Netherlands, but with the tacit knowledge that most of the process was not following Convention protocols, including the subsidiarity principle. To improve this situation, they cultivated diplomatic ties and fostered humanitarian projects that helped facilitate foster care and in-country adoption, as one professional explained,

What took place in cases like this was that Western agencies that came into new non-Hague countries took on a pedagogical role by instructing these countries on the rules of the Convention and good practices such as transparency. Nonetheless, as an organization with staff and running costs, adoption agencies could not afford to focus on efforts to have children placed in their home countries; their ultimate objective was to place children internationally. As the same professional further clarified to me,

Given the developments and debates on “adoption capacity,” the Hague Convention performed legitimation work that went beyond its formal structures. When agencies set up ties in new countries that have not signed or ratified the Convention, these countries come in contact with the norms and conditions of the Convention through the pedagogical work of Western agencies that come in to train and develop in-country capacities. Such measures can be seen as strengthening child welfare protection measures in the countries of origin. However, the ultimate objective of Western agencies lies in placing children in permanent families through full adoptions. By going beyond the Convention as an abstract document and looking at how it gets translated into practice, I would argue that, in practice, concerns over children's welfare through in-country institutional or foster care or other forms of placement that may be acceptable in their country are brushed aside in favor of enabling international adoptions that conform to a particular Euro-American notion of adoption. In this regard, I would argue that the Convention—as both a protective as well as an enabling force—relies on the pedagogics of transparency. These pedagogics operate beyond its formal rules and principles. The protective aspect includes the ways in which Western agencies attempt to discipline regimes of transparency into the infrastructure of child welfare in such countries. But such measures are also intended to enable the legal means for international adoption that favor Euro-American practices. Hence, at the same time that transparency regimes aim to illuminate bad practices and prevent abuse, they also obscure the economics and politics behind good practices.

The Tyranny of Transparency

These problems with transparency in the Hague Convention raise broader questions about the contemporary creed of “transparency” that underpins a wide array of regulations. As Marilyn Strathern observes, “there is nothing innocent about making the Reference Stratherninvisible visible” (2000: 309). Transparency is often upheld as the epitome of accountability in our times. Seen as a moral and political principle, the value placed on transparency permeates numerous institutions in Western societies, such as legal institutions, political institutions such as national governments or local parties, and private and nongovernmental organizations that want to convey their commitment by making themselves accountable and “transparent.” However, recent studies on the turn to transparency call for a more critical scrutiny of the imperative (Davis, Kingsbury & Reference Davis, Kingsbury and MerryMerry 2012; Reference GuptaGupta 2008; Reference Jacob and RilesJacob & Riles 2007; Reference RilesRiles 2006; Reference StrathernStrathern 2000). The rhetoric of transparency seems to promise ethical conduct in the globalization of reproduction. However, when documents, figures, and statistics tell one story (the legal story of informed consent or relinquishment), other stories get lost (histories, cultures, economies, power dynamics). Transparency makes certain things visible while obfuscating others. At the same time that transparency devices set rules and norms about what gets included and what is made explicit or visible, they also displace rather than erase what is implicit (Reference StrathernStrathern 2000, 2005).

In the case of transparency regimes such as in the implementation of the Hague Adoption Convention, rules proliferate on top of each other: local rules, state rules, national rules, and Convention rules create a multiplication of regulations (see also Reference MansfieldMansfield 2004). In the past, adoption practices used to evolve around intimate relationships and systems of experiential knowledge. Trust was a vital component in these dynamics. But transparency regimes seem to destabilize these expert systems (Reference TsoukasTsoukas 1997; Reference HanHan 2015). Rather than heighten responsibility, this situation can erode it. As we have seen, the uses of transparency as a device—the enactment of “complying with the Hague”—suggest ethical conduct whereby practitioners know very well what is concealed by the layers of bureaucracy. As Strathern, following Reference Tsoukas and TsoukasTsoukas (1994), explains,

At best, the realities that are knowingly eclipsed pertain to issues of inequality, locality, or culture. At worst, they refer to issues of coercion, abuse, and trafficking. In the case of the latter, despite the Convention's adherence to the CRC and its optional protocol that sets out to prohibit the sale of children, legal documents have often “white-washed” corruption and abuse, leading to what Smolin calls “child laundering” in global adoption Reference Smolinpractice (2006). Market mechanisms still played a major role in the international practices of adoption. However, with the Hague Adoption Convention, these mechanisms were harder to detect. Because transparency regimes seem to operate above politics, these issues are concealed once Convention rules are implemented and transparency is used as device.

What is more, in the practice of cross-border adoption, transparency regimes conceal the ways in which Euro-American notions of autonomy, ownership, and kinship are implicated and privileged. Here, the modern bureaucratic and administrative enactments of Euro-American knowledge practices through the implementation of the Hague Adoption Convention erase the intrinsic complexity of social and cultural life in the sending countries (see also Knox & Reference Knox, Harvey, Candea, Cook, Trundle and YarrowHarvey 2015). For instance, the “upgrade” of a simple to full adoption does not occur automatically. Consent needs to be sought from the birth parents to transfer rights of parentage, and therefore rights of disposition, to the adopting parties (Reference StrathernStrathern 2004). As many scholars have observed, the ethics behind informed consent are also based on Euro-American ideas of freedom, autonomy, and choice (Cooper & Reference Cooper and WaldbyWaldby 2014:223; Reference MillsMills 2011; Reference RappRapp 1999). These moral notions are central in legal thinking, particularly in human rights domains, and confers the legal status of personhood to the subject. Individuals are seen as “freestanding, information-processing, cognitively controlled executioners of rights and personal judgments” (Reference Hoeyer and HogleHoeyer and Hogle 2014, citing Lock & Reference Lock and FarquharFarquhar 2007:2). Informed consent epitomizes a legal technique that functions as a moral and ethical safeguard against coercion and exploitation.

However, as evidence indicates in the field of adoption practices, the primacy of choice often conceals the power dynamics underpinning decisionmaking for birth mothers or birth parents (Reference FonsecaFonseca 2011; Reference Johnson and VolkmanJohnson 2005; Reference Leifsen and BowieLeifsen 2004; Reference LeinaweaverLeinaweaver 2008). Moreover, knowledge on the legal consequences of adoption varies enormously across cultures. When transplanting legal techniques in other localities, differing accounts of autonomy and choice are not sufficiently considered. Such views were also underscored by my informants. In many countries, birth mothers are either not fully aware of legal issues such as the cutoff period for changing their minds or, if they were aware, they came to regret having relinquished their children. For birth mothers in the Global South, choices are very much informed by sociocultural and economic circumstances.Footnote ²⁸

Returning to the argument that the Hague Adoption Convention functions as a countermovement to the neoliberal and globalized reproductive market, it seems that the Convention is as much a countermovement as it is itself a neoliberal form of global governance, one that produces competition among agencies and states, and reproduces inequalities between Euro-American countries and developing countries, the global North and the global South, the wealthy and the poor (see also Reference GuthmanGuthman 2007). Private international law's upholding of “transparency,” “choice,” and “informed consent” ignore foundational inequalities informing reproductive exchangeability, thereby depoliticizing adoption and rendering invisible the politics of value.