Take Off the [Color] Blinders: How Ignoring the Hague Convention’s Subsidiarity Principle Furthers Structural Racism Against Black American Children

Abstract

The Hague Convention on Intercountry Adoption, to which the United States subscribes, was established to stem the tide of corruption in international adoption. It sets adoption practice standards for member countries and, through its subsidiarity principle, provides for international adoption as a child’s best interest only when intra-country adoption is not available. However, the United States currently allows its citizens to adopt from countries that refuse to adhere to the Hague Convention, creating a two-system approach to international adoption, and intra-country adoption avenues are not being exhausted prior to U.S. international adoptions. The United States is currently the largest “receiving country” in international adoption, but even as the globalization of the adoption industry has led to a more culturally diverse American population, the United States is certainly not colorblind in its approach to adoption. Despite adherence to post-racial thought, the children aging out of foster care unadopted are disproportionately black, and race still negatively influences industry standards. What is more, the United States has become known as a “sending country,” as it ships many of its black and biracial foster care children abroad to find homes, leading some to call the practice of international adoption “covert racism.” This Article suggests, just as Derrick Bell’s Interest Convergence Theory argued that colorblindness was co-opted through Brown v. Board of Education to serve the interests of white elites, that the best interests of the child standard has been co-opted in adoption merely to satisfy predominantly white demands for children. The Children in Families First Act has even been introduced to circumvent the Hague’s subsidiarity principle and to provide more children for international adoption. However, the Article concludes that the United States should not allow international adoptions – whether to or from the United States – until all domestic placement efforts have been exhausted, in line with the Hague’s subsidiarity principle. The Article ultimately calls for abolishment of the current U.S. two-system approach to international adoption that circumvents Hague protocols and protections and contributes to the structural racism against black American children.