A Right to Adoption?

Two significant developments in Russia’s approach to the adoption of Russian children to foreigners have taken place this year. In January, a Russian law prohibiting American citizens from adopting Russian children took effect, thereby bringing to an end, at least for now, the longstanding and generally robust history of Russia-U.S. adoptions (between 1995 and 2011, almost 60,000 Russian children were adopted by American citizens). And just this week, the Russian Parliament approved a bill banning adoptions of Russian children to foreign same-sex couples. These laws can be expected to have, in the short-term, a discernible impact on the adoption prospects for the 100,000 or so Russian children resident in institutions.

The ban on American adoptions is known colloquially in Russia as the Dima Yakovlev Bill, named for a 21-month-old Russian boy adopted to American parents in 2008 and re-named Chase Harrison. Less than six months after his adoption, Chase died of hyperthermia after unintentionally being left in a car by his adoptive father. In a case that became highly politicized in Russia, the father was acquitted of involuntary manslaughter by a Circuit Court judge in Fairfax County, Virginia, in December 2008. The Russian Ministry of Foreign Affairs shortly thereafter issued a statement on the acquittal, expressing deep anger at the “flagrantly unjust ruling,” and implying a connection between Chase Harrison’s status as a Russian adoptee, and the lack of adequate punishment for his death.

Russia’s decision to ban American adoptions is at first glance a policy response to Russia-U.S. adoptions, such as Chase’s, that have gone wrong – Russia claims that a total of twenty Russian adoptees have been killed, whether intentionally or otherwise, by American adoptive parents. However the law is more commonly referred to in the U.S. as the “Anti-Magnitsky Law.” The Magnitsky Act, passed by Congress in December of last year, targeted Russian human rights violators, and was named for a Russian auditor who died in custody after being held for almost a year without trial, apparently having been tortured and beaten.

Russia’s ban on adoptions to America has been variously defended as a proportionate response to deaths and other failed adoptions, and criticized as Magnitsky Act retaliation that uses children as “political pawns.”  On the one hand, Russia has expressed concern on many occasions over failed adoptions and the number of Russian adoptees to have died in America, and threatened moratoriums or bans on intercountry adoption in response. Some Russian politicians have also expressed discomfort with intercountry adoption generally, due to imperialist/national pride concerns. Russia of course has the prerogative to define its child welfare system as it pleases, in accordance with the international law principle of the best interests of the child. However on the other hand, it would be wrong to characterize the ban as a simple continuation of a movement away from intercountry adoption – it pertains only to American adoptions, and there are many non-child-centric political factors, both domestic and international, behind the adoption ban. Most obviously, the ban was clearly a “tit for tat” political response to the finger of blame the U.S. pointed at Russia by passing the Magnitsky Act, in which America objected to Russia’s failure to hold anyone accountable for Sergei Magnitsky’s death. Just as Senator John McCain, in introducing the Magnitsky Act, referred to a “culture of impunity” in Russia in relation to human rights, so Russia, by banning Americans from adopting Russian orphans, has pointed out what it sees as a culture of impunity in America in relation to the lack of justice for Russian adoptees.

The second major development, Russia’s decision to ban international adoptions to same-sex couples, has received far less attention in the U.S., given that Russia was already off the table as a “source” of adoptable children for Americans as of January. The law was apparently precipitated by the recent legalization of same-sex marriage in France (France is the third largest receiver of Russian adoptees after Italy and Spain).

The Russian move is somewhat anomalous in Europe, a region that has generally trended to expand recognition and rights of same-sex couples. Nine of the fifteen countries that currently allow same sex marriage are in Europe. In February, the European Court of Human Rights ruled that Austria, in denying unmarried same-sex couples the right to adopt one another’s children, but granting that right to opposite-sex couples, was in violation of the European Convention on Human Rights.

Russia, in contrast, does not recognize same-sex unions or allow gay and lesbian Russians to adopt children. Of late, a number of laws have been passed in Russia that evince a concern with entrenching “traditional” (anti-gay) values. In addition to the adoption law, earlier this month the State Duma (Russia’s lower house of parliament) passed a law making it “illegal to equate straight and gay relationships” and prohibiting the promotion of “non-traditional sexual relations towards minors.”

Interestingly, the law also prevents single people or unmarried couples, regardless of their sexual orientation, who live in a country that has legalized same sex marriage (currently fifteen) from adopting Russian children. Previously, there was no requirement that prospective foreign adopters be married; now this requirement does apply, but only in relation to the handful of countries that legalize same-sex marriage. The law thus seems designed to send a clear normative statement not only on the merits of same-sex couples as adoptive parents, but also of Russia’s disapproval of the legalization of same-sex marriage regardless of whether children are involved.

Is Russia justified in restricting intercountry adoption in these ways? From an international law perspective, probably. Intercountry adoption concerns a nation’s ability to care for its most vulnerable, and whether it is culturally, socially and economically appropriate to look to other (more advanced and powerful) nations for support in that task. This strikes at the heart of a nation’s self-presentation, and is a highly emotive issue. International law is accordingly deferential to state determinations of what is in the best interests of children without parents.

It is worth noting that in recent years, Russia has increasingly evinced a strong preference for looking after its parentless children domestically, ensuring that international adoption is a measure of last resort. However finding enough Russian families to foster or adopt the very large number of Russian children in institutions is a long-term objective. In the meantime, while it would be incorrect to say that Russian children without families have a right to be adopted internationally – there is no obligation to partake in intercountry adoption per se – Russia’s restrictions on intercountry adoption, which are arguably to a large extent politically motivated, are at least ethically, if not legally, problematic from the perspective of children presently in institutions who are unlikely to be moved to a family setting in the short-term.

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