States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:
(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary;
(b) Recognize that inter-country adoption may be considered as an alternative means of child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin;
(c) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption;
(d) Take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it;
(e) Promote, where appropriate, the objectives of the present article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs.
-UN Convention on the Rights of the Child
Overview of Article 21
Article 21 constitutes the first introduction into international human rights law of a provision relating to adoption, although a UN Declaration in 1986 made provision for its recognition and regulation [1], and influenced the drafting of Article 21 [2]. The initial draft of the CRC from Poland contained no reference to adoption but early proposals were submitted from Barbados on domestic adoption and Colombia on inter-country adoption, providing a framework for regulation and standards in respect of both [2]. Building on the preamble that affirms the centrality of the family as the fundamental group of society, the drafting committee took the view that adoption should be recognised as a permanent solution for children unable to have their needs met within their birth families. However, a proposal that States should actively facilitate adoption was rejected in favour of a position that it should be neither promoted nor advocated. Rather, the text defines the contexts in which it can be authorised and stipulates the regulatory framework that must be present to avoid harm or exploitation [3]. The best interests principle was recognised, not simply as a legal reference to prevail in all aspects of adoption, but as an overarching principle governing the issue [4]. Representations from Islamic countries, where adoption is not permitted, led to the introductory paragraph clarifying that Article 21 only applies to those countries where adoption is recognised or permitted [5].
The final text places emphasis on the imperative for adoption to be undertaken only through competent and authorised authorities with rigorous consent procedures involving birth parents, and where appropriate, the child. It demands equivalent safeguards and standards between national and inter-country adoption, with a prohibition on improper financial gain in respect of inter-country adoption. It embodies recognition of the principle of subsidiarity – inter-country adoption must only be pursued when all domestic options have been considered, consistent with the best interests of the child.[1] Finally, it encourages the development of bi-lateral and multi-lateral arrangements to ensure the effective protection of children.
[1] See, for example, United Nations Committee on the Rights of the Child. (2005). Concluding Observations: Russian Federation (para. 4) (CRC/C/15/Add.274); Vite, S. & Boechat, H. (2008). Article 21: Adoption. In A. Alen, J. Vande Lanotte, E. Verhellen, F. Ang, E. Berghmans, & M. Verheyde (Eds.), A Commentary on the United Nations Convention on the Rights of the Child (p.45). Leiden Netherlands: Martinus Nijhoff Publishers.
Core attributes of Article 21
The core attributes of Article 21 are:
- Authorisation and regulation
- Permissibility of adoption
- Safeguards for inter-country adoption
Each of these attributes can be measured in terms of structural or process implementation or in terms of outcomes achieved through implementation as outlined in the table below. Some indicators, for instance the structural ones, may be common to all attributes. Others are common to two or more attributes, while some indicators may be relevant to one attribute only. An attempt has been made to balance the use of objective and subjective data indicators as well as qualitative and quantitative ones.
What did children say?
These are some ideas that children from around the world shared with us during the Global Child Rights Dialogue (GCRD) project:
Relevant provisions within the SDGs
No relevant SDG provisions has been identified for this article.
Potential sources of data for users of the indicators sets
- Data from relevant statutory or authorized adoption agencies
- Education Management Information Systems
- Government laws and regulations
- Law enforcement agencies
- Qualitative research with children
References used for the overview
- United Nations General Assembly. (1986). Declaration on Social and Legal Principles relating to the Protection and Welfare of Children with special reference to Foster Placement and Adoption Nationally and Internationally (A/RES/41/85). Retrieved from https://www.refworld.org/docid/3ae6b370c.html
- Office of the United Nations High Commissioner for Human Rights (OHCHR). (2007). Legislative History of the Convention on the Rights of the Child. (Vol. 2, pp. 537-538). New York, United States of America and Geneva, Switzerland: United Nations. Retrieved from https://www.ohchr.org/Documents/Publications/LegislativeHistorycrc2en.pdf
- United Nations Children’s Fund (UNICEF). (2007). Implementation handbook for the Convention on the Rights of the Child (Fully rev. 3rd ed., pp.294). Geneva, Switzerland: UNICEF.
- Vite, S. & Boechat, H. (2008). Article 21 : Adoption. In A. Alen, J. Vande Lanotte, E. Verhellen, F. Ang, E. Berghmans, & M. Verheyde (Eds.), A Commentary on the United Nations Convention on the Rights of the Child (p.22). Leiden, The Netherlands: Martinus Nijhoff Publishers.
- Office of the United Nations High Commissioner for Human Rights (OHCHR). (2007). Legislative History of the Convention on the Rights of the Child. (Vol. 2, p. 547). New York, United States of America and Geneva, Switzerland: United Nations. Retrieved from https://www.ohchr.org/Documents/Publications/LegislativeHistorycrc2en.pdf
References used to create indicators
- Better Care Network, & United Nations Children’s Fund (UNICEF). (2009). Manual for the measurement of indicators for children in formal care. Retrieved from http://resourcecentre.savethechildren.se/sites/default/files/documents/5016.pdf
- Fundamental Rights Agency, European Union Agency For Fundamental Rights. (2010). Developing indicators for the protection, respect and promotion of the rights of the child in the European Union (Conference Edition). Retrieved from https://fra.europa.eu/en/publication/2012/developing-indicators-protection-respect-and-promotion-rights-child-european-union
- The Hague Conference on Private International Law. (1993). The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption. Retrieved from https://www.hcch.net/en/instruments/conventions/specialised-sections/intercountry-adoption
- United Nations General Assembly. (2019). Sustainable Development Goal 4: Ensure inclusive and equitable quality education and promote lifelong learning opportunities for all. Retrieved from https://sustainabledevelopment.un.org/sdg4
- United Nations Children’s Fund (UNICEF). (2007). Implementation handbook for the Convention on the Rights of the Child (Fully rev. 3rd ed., pp.186). Geneva, Switzerland: UNICEF.
- United Nations Office of High Commissioner of Human Rights (OHCHR) (2012). Human Rights Indicators: A Guide to Measurement and Implementation (HR/PUB/12/5). Retrieved from http://www.ohchr.org/Documents/Publications/Human_rights_indicators_en.pdf
- Vaghri, Z., Zermatten, J., Lansdown, G. & Ruggiero, R. (Eds.). “Article 2: Adoption,” in Attributes of the United Nations Convention on the Rights of the Child: Analysis for state compliance. Geneva, Switzerland: Springer Nature. (Forthcoming).
Glossary/key words
Competent authorities
A ‘competent authority’ in the context of adoption is an adoption agency that is a properly licensed by the law of the State, complies with minimum standards and is established, authorised and supervised by the State to undertake the role of approving applications to adopt (Hague Convention, 1993).
Financial inducement
A financial inducement represents a payment that a person is able to make in order to ‘purchase’ a child, or influence an adoption proceeding, thus reducing the child to the status of a commodity. The Convention is explicit that “no one shall derive improper financial or other gain from an activity related to intercountry adoption and that Central Authorities must take all appropriate measures to prevent this practice” (Hague Convention, 1993).
Informed consent
Informed consent by either the parent or the child means that they have been provided with full and appropriate information about the nature of the adoption process, fully understand the implications of the adoption, and are not giving consent under any form of inducement or coercion.
Inter-country adoption
“Adoption which involves a parent or parents adopting a child from a different country” (Save the Children, 2007).
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