Haitian child trafficking scheme
Fri, 04 Nov 2016 03:23
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 1 8-MAY-12 13:09Owning Laura Silsby's Shame:How the Haitian Child Trafficking SchemeEmbodies the Western Disregard forthe Integrity of Poor FamiliesShani M. King*INTRODUCTIONIn January 2010, an earthquake in Haiti left hundreds of thousands ofpeople dead, injured, and displaced, and over a million homeless.1 Threeweeks after the earthquake, Haitian authorities arrested a group of Idahomissionaries for attempting to cross the border into the Dominican Repub-lic with 33 children, without papers or proper authorization.2 The mission-aries claimed they had the good intentions to set up an orphanage,3 butinvestigations showed that none of the children were orphans and that themissionaries may have been attempting to smuggle the children out of Ha-iti to be adopted internationally.4 Despite evidence of association with child* Associate Professor of Law and Co-Director, Center on Children and Families, University ofFlorida Levin College of Law; J.D., Harvard Law School (1999); B.A., Brown University (1995); Mst.,University of Oxford (2012). I would like to thank Adriana Camarena and Laquesha Sanders for out-standing research assistance. I would also like to thank the AALS Children and the Law Section Execu-tive Committee for choosing this Article to be presented at the 2011 AALS Annual Meeting and theInternational Society of Family Law for accepting this Article for presentation. I continue to be gratefulto Martha Minow for her kindness and unwavering support and to Elizabeth Rowe, Dorothy Roberts,Barbara Woodhouse, Nancy Dowd, Claudia Fonseca and Gabriela Ruiz for their helpful comments onearlier drafts of this article. I would also like to thank Benadieu Augustin, a National Human RightsOfficer at the UN Mission in Haiti, for his valuable insights.1.R´EPUBLIQUE D'HA¨ITI, S´EISME 2010, BULLETIN D'INFORMATION DU GOUVERNEMENT HA¨ITIEN2(2010), http://haiti.org/files/BULLETIN%20du%2021%20au%2023.pdf (noting the devastating im-pact of the earthquake on the Haitian population).2. Anthony L. Hall, Missionaries Charged with Kidnapping Haitian Babies, CARIBBEAN NET NEWS,Feb. 5, 2010; Ten U.S. Missionaries Charged over Attempt to Kidnap and Smuggle Haiti 'Orphans', MAILONLINE (U.K.) (Feb. 5, 2010), http://www.dailymail.co.uk/news/worldnews/article-1248671/Ten-U-S-missionaries-charged-attempt-kidnap-smuggle-Haiti-orphans.html [hereinafter Ten U.S. MissionariesCharged].3.NEW LIFE CHILDREN'S REFUGE, HAITIAN ORPHAN RESCUE MISSION, http://www.esbctwinfalls.com/clientimages/24453/pdffiles/haiti/nlcrhaitianorphanrescuemission.pdf; see also Ysabel Bilbao, Mis-sionaries' Plan for Rescued Haitian Children, IDAHO'S NEWSCHANNEL 7 (Feb. 4, 2010), http://www.ktvb.com/news/Missionaries-plan-for-orphanage-for-Haitian-children-83600197.html.4.See Bilbao, supra note 3 (stating that the children found with the missionaries were handed overRby parents who wanted them to have a better life); see also Haitian Judge Weighs New Charge for Silsby,BAPTIST PRESS (Mar. 15, 2010), http://www.bpnews.net/BPnews.asp?ID=32497 [hereinafter Judge
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 2 8-MAY-12 13:092Harvard Human Rights Journal / Vol. 25traffickers,5 the Haitian justice system'--prodded in part by President Clin-ton's diplomatic efforts on behalf of the missionaries6'--determined thatnone of the missionaries were guilty of illegal activities, except the leaderLaura Silsby, who faced a lesser charge of organizing illegal travel.7Along with the Haitian justice system, some observers excused the mis-sionaries' actions,8 even though they rose to the level of child trafficking.They did so essentially because we place such little value on the integrity ofpoor families; the idea that the missionaries were acting to ''save'' thesechildren justified the damage they would have caused to the children andtheir families.9 In this way, the Silsby case offers a window into interna-tional and domestic child placement schemes that disrupt poor families anddisregard traditional forms of child placement.10 In the international con-text, the demand for intercountry adoption (''ICA'') is driven by Westernerswho wish to have children and who desire to save poor children.11 Whilerelying on good intentions, ICA as it currently operates perpetuates a sys-tem of child placement that destroys the integrity of poor families and feedsWeighs New Charge] (explaining that missionaries were arrested for trying to take children out of Haitito a ''makeshift orphanage in the Dominican Republic'').5.Adviser to Missionaries in Haiti Kidnap Case is Arrested, CNN (Mar. 19, 2010), http://www.cnn.com/2010/CRIME/03/19/haiti.baptists.adviser/index.html.6. Tony Allen-Mills, Clinton Brokers Deal over Haiti Orphan Abductions, SUNDAY TIMES (U.K.), Feb.7, 2010, available at Factiva, Doc. No. ST00000020100207e627000xx.7. Jonathan M. Katz, Laura Silsby, U.S. Missionary Leader, Convicted in Haiti, but Free to Go, HUF-FINGTON POST (May 17, 2010), http://www.huffingtonpost.com/2010/05/17/laura-silsby-us-mis-sionar_n_579644.html; see also Evens Sanon, Haiti Frees U.S. Missionary; Group Leader Still Held, THEVIRGINIAN-PILOT, Mar. 9, 2010, at A5.8.Haiti Tosses Kidnapping Charges Against Americans, SYRACUSE POST-STANDARD (Apr. 26, 2010),http://www.syracuse.com/news/index.ssf/2010/04/haiti_tosses_kidnapping_charge.html (stating thatsupporters of Silsby's group argued that the group was trying to help the Haitian children and did notunderstand Haiti's adoption laws).9. Throughout this Article I use the term ''poor families.'' When I use this term in the context ofthe United States, I refer loosely to the terminology of the 2011 U.S. Department of Health andHuman Services (HHS) Poverty Guidelines. See Annual Update of the HHS Poverty Guidelines, 76 Fed.Reg. 3637''38 (Jan. 20, 2011). When I use this term regarding families in Haiti or other countriesbesides the United States, I refer to the international poverty threshold as defined by the World Bank.See The World Bank, Data: Poverty (Nov. 11, 2011), http://data.worldbank.org/topic/poverty (providingdata on poverty indicators).10.See Jacqueline Bhabha, Moving Babies: Globalization, Markets and Transnational Adoption, 28FLETCHER F. WORLD AFF. 181, 185 (2004) (citing poverty as a leading factor for parents who give uptheir children to be adopted internationally); see also Jodi Kim, An ''Orphan'' with Two Mothers: Transna-tional and Transracial Adoption, the Cold War, and Contemporary Asian American Cultural Politics, 61 AM.Q. 855, 856''57 (2009) (describing international adoptees as ''social orphans'' who are placed for adop-tions as orphans despite having living parents).11.See Robert A. Saunders, Transnational Reproduction and its Discontents: The Politics of IntercountryAdoption in a Global Society, 1 J. GLOB. CHANGE & GOVERNANCE 1, 8 (2007) (describing both humani-tarian and self-serving motives of Westerners seeking to adopt internationally); Nicole Bartner Graff,Intercountry Adoption and the Convention on the Rights of the Child: Can the Free Market in Children BeControlled?, 27 SYRACUSE J. INT'L L. & COM. 405, 407 (2000) (describing the effect on internationaladoption by Westerners' capitalistic demand for children).
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 3 8-MAY-12 13:092012 / Owning Laura Silsby's Shame3illicit child trafficking schemes like the one devised by Laura Silsby.12 Inthe domestic context, the American foster care system also disrupts poorfamilies.13 Children are funneled into a system that can be as harmful as thehomes from which they are removed;14 yet the system still appears to re-move the children with too little regard for the integrity of their families.The U.S. foster care system and ICA are both premised on rescuing chil-dren from unfortunate life circumstances, stemming mainly from poverty.15In both systems, instead of providing resources to enable families to takecare of their children, these resources are used to remove children from theirfamilies and communities.16 Inadequate family reunification planning andservices in the foster care system undermine parents' attempts to regaincustody of their children, and in ICA, adoptive parents pay substantial sumsto complete the ICA process, while birth families typically receive no assis-tance that would enable them to better provide for the children who will beadopted.17 Ultimately, both the domestic and international systems disruptthe lives of poor families, but not always because it is necessary for thechild's well-being.18This Article does not suggest that it is necessary to end foster care orICA. On the contrary, recognizing the need for systems that ensure childrenare raised in safe and loving homes, I seek to show that the current systemsneed to be improved so they do not continue to systemically and unnecessa-rily damage the integrity of poor families. Movement towards this type ofimprovement will not happen, however, without acknowledgment that theproblem exists.Commentators generally accept that poor families are more likely to beinvolved in, and thus disadvantaged by, both the intercountry adoption12. David M. Smolin, Child Laundering: How the Intercountry Adoption System Legitimizes and Incen-tivizes the Practices of Buying, Trafficking, Kidnapping, and Stealing Children, 52 WAYNE L. REV. 113,117''24 (2006) (linking intercountry adoption to child trafficking).13.See Sandra Bass, Margie K. Shields, & Richard E. Behrman, Children, Families, and Foster Care:Analysis and Recommendations, 14 FUT. CHILD. 4, 6, 14 (2004) (arguing that poor children are morelikely to enter the foster care system because poverty is associated with multiple life challenges).14.See Brenda Jones Harden, Safety and Stability for Foster Children: A Developmental Perspective, 14FUT. CHILD. 30, 40 (2004) (showing that some foster children suffer maltreatment in their fosterhomes).15.See Shani King, The Family Law Canon in a (Post?) Racial Era, 72 OHIO ST. L.J. 575, 610''11 &n.171 (2011) (discussing the U.S. child welfare system's historical roots in child rescuing); see also DavidM. Smolin, Child Laundering as Exploitation: Applying Anti-Trafficking Norms to Intercountry AdoptionUnder the Coming Hague Regime, 32 VT. L. REV. 1, 36''37 (2007) (discussing the argument that adoptingchildren internationally is justified because the children end up in better material circumstances).16.See King, supra note 15, at 612''14 & nn.179 & 182 (discussing the U.S. child welfare system'sRdiversion of funds away from family reunification towards foster care); see also Smolin, supra note 12, atR127 (discussing the significant amount of money spent to arrange an intercountry adoption).17.See King, supra note 15, at 612''14 (discussing the U.S. child welfare system's failure to pro-Rmote family reunification and preservation); see also Smolin, supra note 12, at 127 (discussing the in-Rtercountry adoption system's failure to provide birth families with aid that would preserve theirfamilies).18.See King, supra note 15, at 613; see also Smolin, supra note 12, at 127.R
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 4 8-MAY-12 13:094Harvard Human Rights Journal / Vol. 25system and the U.S. foster care system.19 In my previous work, I have ex-plored the scholarship in both contexts.20 The current Article makes threebroad contributions. First, it focuses on a gap in the existing literature byoffering a clear theoretical conception of the genesis of this disregard forpoor families. In my previous work, I have defined this genesis in the con-text of intercountry adoption as MonoHumanism.21MonoHumanism describes a process of ''Othering'' in the context of in-tercountry adoption.22 This term is a collective notion identifying ''us'' asWesterners and everyone else as ''the other.''23 The narrative of identity Ihave previously described that accompanies MonoHumanism subscribes bothuniversality and superiority to Western knowledge and discourse, whicheffectively results in the exclusion and displacement of the knowledge anddiscourse of historically oppressed peoples.24 In the context of ICA,MonoHumanism means that children are not seen in the context of theirfamily, community and culture, but rather, narrowly as the potential chil-dren of Western adults.25 In this Article, therefore, I argue thatMonoHumanism is an unstated theoretical justification for the disrespect thatsociety shows for the integrity of poor families. In this context, it is notonly the West vs. East juxtaposition that is important, but the poor vs. richjuxtaposition as well. In other words, it is the exclusion and displacementof knowledge and discourse about poor families'--the failure to see children19.See Twila L. Perry, Transracial and International Adoption: Mothers, Hierarchy, Race, and FeministLegal Theory, 10 YALE J.L. & FEMINISM 101, 133''34 (1998) (citing poverty as a reason for intercountryadoption to the detriment of mothers who relinquish their children); see also Annette R. Appell, Protect-ing Children or Punishing Mothers: Gender, Race, and Class in the Child Protection System, An Essay, 48 S.C.L. REV. 577, 578 (1997) (discussing the disproportionate involvement of poor mothers in the U.S. childwelfare system); Susan L. Brooks & Dorothy E. Roberts, Social Justice and Family Court Reform, 40 FAM.CT. REV. 453 (2002) (noting the class disparities in the U.S. child welfare system and the system's rootsin intervening into poor families); Naomi Cahn, Race, Poverty, History, Adoption, and Child Abuse: Connec-tions, 36 LAW & SOC'Y REV. 461, 462 (2002) (stating that class is a significant factor for intervention bythe U.S. child welfare system); Andrea Charlow, Race, Poverty, and Neglect, 28 WM. MITCHELL L. REV.763, 764''65 (2002) (discussing the disproportionate removal of poor children from their homes to beplaced into foster care); Marsha Garrison, Why Terminate Parental Rights?, 35 STAN. L. REV. 423,433''38 (1983) (tracing the development of the U.S. child welfare system to colonial laws that inter-vened into poor families); Johanna Oreskovic & Trish Maskew, Red Thread or Slender Reed: DeconstructingProf. Bartholet's Mythology of International Adoption, 14 BUFF. HUM. RTS. L. REV. 71, 107 (2008) (discuss-ing how dire poverty can drive the procurement of children for the intercountry adoption system);Dorothy E. Roberts, Child Welfare and Civil Rights, 2003 U. ILL. L. REV. 171, 172 (2003) (concludingthat the U.S. child welfare system is ''an institution designed primarily to monitor, regulate, andpunish poor black families''); David M. Smolin, Intercountry Adoption and Poverty: A Human Rights Analy-sis, 36 CAP. U. L. REV. 413, 413''14 (2007) (describing extreme poverty as an impetus for intercountryadoption); Smolin, supra note 12, at 127 (discussing poverty as a grounds for families to surrender theirRchildren to be adopted internationally).20.See Shani King, Challenging MonoHumanism: An Argument for Changing the Way We Think AboutIntercountry Adoption, 30 MICH. J. INT'L L. 413 (2009) (exploring scholarship on intercountry adoption);see also King, supra note 15 (critiquing family law scholarship on issues such as foster care).R21.See generally King, supra note 20.R22.Id. at 414.23.Id.24.Id. at 414''15.25.Id. at 415.
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 5 8-MAY-12 13:092012 / Owning Laura Silsby's Shame5in the context of their family, community and culture'--or a slightly broad-ened version of MonoHumanism, that explains our failure to respect the in-tegrity of poor families in the United States and abroad.26MonoHumanism may at first blush seem inclusive rather than ethnocentricor myopic.27 I have chosen this phrase purposefully due to the strength ofthe inversion of the inclusive ideal accompanying this language.28 Thephrase MonoHumanism was chosen because of the juxtaposition of ''Mono''with the word ''Humanism'' to underscore the ethnocentric and myopicfailure to include discourses that have their origins in the lives, cultures,and vocabulary of historically oppressed peoples, in areas that are often con-ceived of as a ''win-win'' for all parties involved and as the most humanita-rian of endeavors.29 Even more fundamentally, the term ''Mono'' seems toexclude other possibilities and is commonly used that way, for example,with the terms ''monotheistic'' and ''monolilthic.''30While there are terms from post-colonial theory such as ''ethnocentrism''and ''Self/Other'' that have informed my choice of this term,31 I offer thisnew label to specifically identify our approach towards poor children. Mysense is that having a specific target will make it much easier to hit thattarget. To use a slightly imperfect analogy, instead of dismantling discrimi-nation, we dismantle ''Jim Crow laws'' or the ''separate but equal'' doc-trine.32 Or, instead of stopping law enforcement officers fromdiscriminating against people of color, we have taken a stand against ''racialprofiling.''33 In part, because previous terms have not captured our collec-tive consciousness in a way that has resulted in the dismantling of our ap-proach to poor families, as I have argued before, I think it is time for a newand very specific term that captures that approach. The term I have chosenis MonoHumanism.34The second broad contribution is to show how this theoretical justifica-tion becomes a narrative that determines how we report on, read, think26.See id.27.Id. at 414.28.Id.29.Id.30.Id.31.See DIANA KENDALL, SOCIOLOGY IN OUR TIMES 90 (4th ed. 2003) (defining ''ethnocentrism'' asthe practice of using one's culture as the standard by which to judge other cultures and stating that''[e]thnocentrism is based on the assumption that one's way of life is superior to all others'');SANKARAN KRISHNA, GLOBALIZATION & POSTCOLONIALISM: HEGEMONY AND RESISTANCE IN THETWENTY-FIRST CENTURY 73''74 (2009) (describing Edward Said's seminal work Orientalism whichadvanced a postcolonialism framework of understanding how the Western ''self'' developed as a binaryopposite to the Oriental ''other'').32.See Lee Epstein & C.K. Rowland, Interest Groups in the Courts: Do Groups Fare Better?, in INTER-EST GROUP POLITICS 275, 278 (Allan J. Cigler & Burdett A. Loomis eds., 2nd ed. 1986) (stating that''[w]hen the NAACP was formed, one of its major goals was to eradicate 'separate but equal' policies'').33. Samuel R. Gross & Debra Livingston, Racial Profiling Under Attack, 102 COLUM. L. REV. 1413,1413 (2002) (describing a universal opposition to ''racial profiling'' prior to 9/11, and continued oppo-sition and ambivalence about the practice afterward).34.See King, supra note 20, at 415, 470 (discussing the goal of dismantling MonoHumanism).R
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 6 8-MAY-12 13:096Harvard Human Rights Journal / Vol. 25about, and interact with poor families both in the United States and abroad.I do this using the Silsby case,35 through which I explore how the ideas ofchild saving and rescuing poor Haitian children became the narrative thatultimately excused the U.S. missionaries' actions in a clear case of childtrafficking.The third broad contribution is to show how customary child placementschemes, typically used by poor families as a creative adaptation to poverty,are not only displaced by structures set in motion by MonoHumanism, butare, in certain circumstances, more protective of the integrity of poor fami-lies than systems which may reflect classism, racism, sexism, ethnocentrism,and basic fundamental unfairness that permeates both international andU.S. child care systems. I do this by exploring one customary system ofchild placement in Haiti, timoun, and analogous child placement systems bypoor families in the United States.Taking into consideration these three broad contributions, the ultimategoal of this Article is to call attention to the fact that we continue, on abasic conceptual and theoretical level, to fail to respect the integrity of poorfamilies. As such, it is currently unrealistic to expect the United States tocreate structures that protect these families. Frankly, creating structuresthat protect poor families would be fundamentally incongruous with whowe are as a society (whether we admit it to ourselves or not) as it would befundamentally at odds with the concept of MonoHumanism. It will only bewhen we turn a critical eye on U.S. society and interrogate our conceptualand theoretical understandings of the poor that we will develop the will toprotect all families' integrity. This Article hopes to be a spark that does justthat.Using the Silsby case as a window into the MonoHumanistic child place-ment schemes that affect poor families, this Article proceeds in severalparts. Part I tells the story of the Silsby case and shows how the idea ofrescuing poor Haitian children became the narrative that ultimately ex-cused the missionaries' actions. As I will explain, this is a rescue narrativethat has its genesis in MonoHumanism. Part II describes the development ofICA as a means of ''saving'' poor children and explains how the strength ofthis rescue narrative feeds illicit child trafficking schemes. Part II also ex-plores the international community's response to ICA and its focus on pro-tecting the birth family's unity. Part III describes one customary system ofchild placement in Haiti, timoun or restav`ek, and explains how this system,unlike ICA, does not permanently sever the child's relationship with his orher parents and may sometimes be preferable to ICA. This part also consid-ers the problems with timoun, including its potential for exploitation. PartIV exposes the current U.S. child welfare system as one that disrupts tradi-tional forms of child placement in the United States, much like ICA dis-35.See supra notes 2''8 and accompanying text.R
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 7 8-MAY-12 13:092012 / Owning Laura Silsby's Shame7rupts the customary systems of child placement in other countries. In PartsV and VI, the Article concludes that ICA markets and U.S. foster caresystems reflect a theoretical and conceptual approach, one I refer to asMonoHumanism, that too often disserves the interests of children who maybe better served by systems that respect their familial and cultural ties. TheArticle further concludes that the answer is not necessarily to outlaw ICA ordismantle the domestic foster care system. But by acknowledging and even-tually overcoming our failure to respect the integrity of poor families, andthe fact that both systems suffer from unfounded biases that feed illicitschemes or unnecessarily disrupt poor families, both systems can function asthey should'--by minimizing the disruption of family unity and traditionalcaregiving patterns, while fostering the well-being of every child who isimpacted by the system.I. THE SILSBY CHILD ABDUCTION SCANDALOn January 12, 2010, a magnitude 7.0 earthquake struck 15 miles westof Port-au-Prince, Haiti.36 The earthquake was the strongest to hit the Car-ibbean in 200 years.37 Before the earthquake, Haiti was already consideredthe poorest country in the Western hemisphere.38 After the earthquake, theHaitian government estimated that 217,366 people died and 300,572 wereinjured.39 The earthquake damaged or destroyed 285,677 homes, leaving1,237,032 people homeless, and 511,405 displaced.40 The United Nationsestimated that about 2 million people required food aid in the aftermath ofthe earthquake.41 In response to the disaster, the U.N. issued an unprece-dented call for 1.5 billion dollars in emergency and reconstruction aid to besent to Haiti.42In the first week of February, former President Bill Clinton accepted anexpanded role as special envoy for Haiti, on behalf of the United Nations, tolead the coordination of international earthquake recovery and reconstruc-36.Magnitude 7.0 '' Haiti Region, U.S. GEOLOGICAL SURV. (Jan. 12, 2010, 9:53 PM), http://earth-quake.usgs.gov/earthquakes/recenteqsww/Quakes/us2010rja6.php.37. Ker Than, Haiti Earthquake ''Strange,'' Strongest in 200 Years, NAT'L GEOGRAPHIC, Jan. 13, 2010,available at http://news.nationalgeographic.com/news/2010/01/100113-haiti-earthquake-red-cross/.38.Haiti, Background, CIA WORLD FACTBOOK, https://www.cia.gov/library/publications/the-world-factbook/geos/ha.html (last visited Mar. 4, 2010) [hereinafter CIA FACTBOOK]. In 2007, theaverage person in Haiti had an income of less than $1.25 a day. At a Glance: Haiti - Statistics, UNICEF,http://www.unicef.org/infobycountry/haiti_statistics.html (last visited Apr. 21, 2010).39.R´EPUBLIQUE D'HA¨ITI, supra note 1, at 2.R40.Id.41.Haiti: UN Launches Largest-ever Appeal for Natural Disaster, U.N. NEWS CENTRE (Feb. 18,2010), http://www.un.org/apps/news/story.asp?NewsID=33815&Cr=haiti&Cr1=&Kw1=haiti&Kw2=clinton&Kw3.42.Id.
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 8 8-MAY-12 13:098Harvard Human Rights Journal / Vol. 25tion efforts.43 One of Clinton's first tasks in Haiti, however, was to put outthe fire of a child abduction scandal involving American citizens.44On January 29, 2010, less than three weeks after the earthquake, Haitianauthorities arrested ten U.S. Baptist missionaries for attempting to take 33children by bus across the border into the Dominican Republic withoutproper documentation.45 A week later, the missionaries were charged withchild kidnapping and criminal association.46 While the missionariesclaimed good intentions and ignorance of Haitian laws, Haitian prosecutorsargued that there had been intentional wrongdoing.47 In the course of amonth, President Clinton brokered the release of all the missionaries, ex-cept for the group leader, Laura Silsby.48While Laura Silsby awaited trial, the press brought to light several factsthat raised serious suspicions about her intent to traffic or smuggle thechildren as part of a grey adoption scheme.49 In 2009, Silsby visited Haitiwith the stated intent to establish an orphanage.50 At the time, Silsby facednumerous court cases in the U.S. for bad debt and unpaid wages.51 In No-vember 2009, she registered her New Life Children's Refuge charity at anaddress in Boise, Idaho, and a month later the house was repossessed forlack of payment.52In the midst of her personal debt crisis, the January earthquake struckHaiti, and Silsby organized a mission to ''gather 100 orphans from the43.Former President Clinton to Lead International Haiti Coordination, U.S. FED. NEWS, Feb. 5, 2010,available at 2010 WLNR 2490284. Former U.S. President Bill Clinton was the acting U.N. envoy forHaiti since May 2009. Id.44. Allen-Mills, supra note 6.R45. Hall, supra note 2; Ten U.S. Missionaries Charged, supra note 2.R46.US Missionaries Charged with Child Kidnapping in Haiti, GUARDIAN (U.K.), Feb. 4, 2010, availa-ble at Factiva, Doc. No. GRULTD0020100204e625006sh.47.US Missionaries 'Knew They Were Doing Wrong' in Haiti, BBC NEWS (Feb. 2, 2010), http://news.bbc.co.uk/2/hi/8491996.stm.48.See Allen-Mills, supra note 6 (describing Clinton's expected intervention); see also Sanon, supraRnote 7 (stating that all of the missionaries except Silsby were released).R49. In the context of international adoption, the grey adoption market has been defined as ''anetwork of 'baby brokers' and orphanage practices of contested legitimacy'' that facilitates ''the legaland government-sanctioned transnational shuttling of children.'' J.M. Weimer, Media and Migration:International Adoption, Globalization, and the Internet, GLOBALIZATION AND MEDIA, New School Univer-sity, http://homepage.newschool.edu/~chakravs/Media_migration.html. A journalist described onegrey adoption scheme discovered in Vietnam by the U.S. State Department as ''a network of adoptionagency representatives, village officials, orphanage directors, nurses, hospital administrators, police of-ficers, and government officials who were profiting by paying for, defrauding, coercing, or even simplystealing Vietnamese children from their families to sell them to unsuspecting Americans.'' E.J. Graff,Anatomy of an Adoption Crisis, FOREIGN POL'Y (Sept. 12, 2010), http://www.foreignpolicy.com/articles/2010/09/07/anatomy_of_an_adoption_crisis?page=full.50.See James Leasure, Eight of Ten Baptist Missionaries Back from Haitian Detention, EXAMINER.COM(Feb. 18, 2010), http://www.examiner.com/evangelical-in-richmond/eight-of-ten-baptist-missionaries-back-from-haitian-detention-video.51. Guy Adams, Baptist Laura Silsby Who Set Off to 'Rescue' Orphans Left Behind Debts and Bad Wages,THE INDEPENDENT (U.K.), Feb. 6, 2010, at 28; see also Katy Moeller, Eviction Hearing Scheduled for LauraSilsby's Company, Personal Shopper Inc., IDAHO STATESMAN, Mar. 10, 2010, available at 2010 WL5015921 (discussing specific amounts owed).52. Adams, supra note 51; Moeller, supra note 51.R
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 9 8-MAY-12 13:092012 / Owning Laura Silsby's Shame9streets'' of Haiti and take them to a shelter in the Dominican Republic.53The children would be housed in a leased hotel because Silsby's purportedcharity did not yet manage an orphanage or own any property in the Do-minican Republic.54 U.S. authorities later stated that New Life Children'sRefuge was not listed as a U.S. nonprofit or as a U.S. international adoptionagency.55In March, after her arrest, evidence was introduced in Silsby's case show-ing that on January 26, 2010, she had previously attempted to take a differ-ent group of 40 children across the border.56 Haitian and Dominicanauthorities turned her away for lack of authorizing documents.57 Three dayslater she attempted to cross over with the second group'--the 33 children'--again without proper documentation.58After the earthquake, the Haitian government tried to crack down onunauthorized adoptions to avoid child trafficking.59 In addition, the Do-minican consul in Haiti had personally warned Silsby that she lacked thenecessary paperwork to take children out of the country and risked arrest.60On March 17, 2010, after careful verification of identities by the SocialWelfare Ministry of Haiti, 32 out of the 33 children were returned to theirfamilies (the last one being returned shortly thereafter),61 thus confirmingthat none of the children were orphans.Previously, Silsby had told an Associated Press reporter that the childrenwere delivered to the missionaries by ''distant relatives'' or ''orphanagesthat had collapsed in the quake,'' adding that '''[t]hey are very preciouskids that have lost their homes and families and are so deeply in need of,most of all, God's love and his compassion.'''62 But an AP reporter revealedthat Silsby had engaged an Atlanta-based Haitian minister, Reverend Jean53.HAITIAN ORPHAN RESCUE MISSION, supra note 3.R54.Id.; Bilbao, supra note 3.R55. Bilbao, supra note 3.R56.Judge Weighs New Charge, supra note 4; see also New Kidnapping Charge Added to Jailed U.S.RMissionary's Case, DESERET NEWS (Mar. 13, 2010), http://www.deseretnews.com/article/700016208/New-kidnapping-charge-added-to-jailed-US-missionarys-case.html.57. Karl Penhaul, Americans Jailed in Haiti Tried Taking Other Kids, Officer Says, CNN (Feb. 8,2010), http://articles.cnn.com/2010-02-08/justice/haiti.border.arrests_1_dominican-republic-haitian-missionaries?_s=PM:CRIME.58.Judge Weighs New Charge, supra note 4; New Kidnapping Charge Added to Jailed U.S. Missionary'sRCase, supra note 56.R59.Ninth U.S. Missionary Freed in Haiti: Charisa Coulter Returns Home as Group Leader Remains inJail, N.Y. DAILY NEWS (Mar. 9, 2010), http://www.nydailynews.com/news/world/2010/03/09/2010-03-09_ninth_us_missionary_freed_in_haiti_charisa_coulter_returns_home_with_group_leade.html.60.Id.61. The identity of the last child was undergoing verification, which is why he was not released atthe time. Michelle Faul, Haiti Parents Take Back Kids Given to Missionaries, DESERET NEWS, Mar. 18,2010, at A04, available at Factiva, Doc. No. DN00000020100318e63i0001v.62.Americans Charged with Haiti Child Kidnap, CBS NEWS (Feb. 5, 2010), http://www.cbsnews.com/stories/2010/02/04/world/main6174535.shtml.
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 10 8-MAY-12 13:0910Harvard Human Rights Journal / Vol. 25Sainvil, and a local orphanage worker, Isaac Adrien, to find ''homeless''children for her shelter.63Parents of some of the children confirmed to the press and testified incourt that they gave up their children to the missionaries after being prom-ised by the recruiters and the group of Baptists that ''the kids would beeducated and relatives could visit them.''64 Reverend Sainvil convinced oneparent to hand over his children to the missionaries for their better care,pointing out ''that dead bodies buried under rubble in his El Citron neigh-borhood would breed disease.''65 Reverend Sainvil told reporters that:Everybody agreed that they knew where the children were going.The parents were told, and we confirmed they would be allowedto see the children and even take them back if need be.66Adrien'--the orphanage worker'--stated that parents jumped at the offer,while a mother who handed over her daughter observed that it was ''onlybecause the bus was full that more children didn't go.''67The parents gave their consent to the missionaries to take their childrenunder the impression that Silsby and her group were providing shelter andeducation; the parents' understanding was not that they were permanentlyparting with their children.68 Contrary to the parents' expectations, Silsby'sexpress intent'--according to her online action plan'--was to place the chil-dren for adoption.69Suspicions about Silsby's intent to smuggle or traffic the children to theDominican Republic further increased, when on March 19, 2010, Silsby'slegal advisor'--Jorge Torres-Puello, an American-Dominican living in theDominican Republic as a fugitive'--was arrested and accused of human traf-ficking.70 U.S. authorities revealed that Torres-Puello was ''linked to a net-work that trafficked in Haitian and Central American children and [was]wanted in the United States, El Salvador and Costa Rica.''71 His wife was63.Parents Willingly Gave Children to U.S. Baptists, Who Are Mostly from Idaho, OREGONLIVE.COM(Feb. 3, 2010), http://www.oregonlive.com/news/index.ssf/2010/02/parents_willingly_gave_childre.html [hereinafter Parents Willingly Gave Children]; see also Faul, supra note 61; Americans Charged withRHaiti Child Kidnap, supra note 62.R64. Kirsten Johnson, Haiti Parents Testify They Gave Kids to Americans, ASSOCIATED PRESS, Feb. 9,2010, available at Factiva, Doc. No. APRS000020100209e6290005l.65. Faul, supra note 61.R66.Americans Charged with Haiti Child Kidnap, supra note 62.R67.Parents Willingly Gave Children, supra note 63; see also Americans Charged with Haiti Child Kid-Rnap, supra note 62.R68.Parents Willingly Gave Children, supra note 63.R69.''We will strive to also equip each child with a solid education and vocational skills as well asopportunities for adoption into a loving Christian family.''HAITIAN ORPHAN RESCUE MISSION, supranote 3, at 3.R70.Adviser to Missionaries in Haiti Kidnap Case is Arrested, supra note 5.R71.Id.
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 11 8-MAY-12 13:092012 / Owning Laura Silsby's Shame11already imprisoned in El Salvador and ''faced charges of presumed sexualexploitation of minors and women.''72Despite Silsby's stated intent to take the children over the border to anunauthorized orphanage and her connections to human traffickers such asTorres-Puello, the courts eventually dropped the kidnapping and criminalassociation charges against her.73 Silsby was instead convicted under theadditional charge of organizing illegal travel, sentenced to time served (3months and 8 days), and released on May 17, 2010.74 In the end, her sen-tence was based on the least polemic charge against her. The pressing is-sue'--whether Silsby intended to deliver the children into trafficking ringsor grey adoption markets'--was not addressed or resolved.Rather than turning on Silsby's actions, the decision in her case appearedto turn on the actions of the parents. Judge Bernard Saint-Vil explainedthat his decision was based on the Haitian parents' testimony that they had''[given] their kids away voluntarily.''75 Similarly, defense lawyer JorgePuello stated that the missionaries ''willingly accepted kids they knew werenot orphans because the parents said they would starve otherwise.''76 An-other trial attorney for the missionaries, Aviol Fleurant, argued that ''[t]heparents' testimony means no law was broken and 'we can't talk any moreabout trafficking of human beings.'''77 Essentially, the Haitian children aredescribed as victims of the incapacity and poverty of their parents and coun-try; their parents are portrayed as childlike because they are incapable oftaking care of themselves or their children. In other words, the Baptistmissionaries were justified in their actions because they were ''rescuing'' thechildren from incapacitated parents.II. THE DEVELOPMENT OF ICA AS A MEANS OF''SAVING'' POOR CHILDRENA. A Brief History of ICASince the mid-20th century, adoption rates in the U.S. have increaseddramatically.78 The increase is generally attributed to ''an increased inci-dence of infertility among married couples and an absolute decrease in the72.Id.73. Katz, supra note 7. As of the date of this writing, the status of the case against Jean Sainvil, whoRfaced the same charges as Silsby, was not clear.74.Id.75. David Fischer & Frank Bajak, Missionaries Freed by Haitian Judge Land in U.S., NEWS J. (Wil-mington, D.E.), Feb. 18, 2010.76.Parents Willingly Gave Children, supra note 63.R77. Johnson, supra note 64; cf. infra note 197 (UNICEF's definition of ''trafficking''). TraffickingRimplies the movement of children across borders with the intent of labor exploitation. The fact that theparents gave their consent does not mean that Silsby did not intend to traffic the children.78. The number of adoptions has increased[. . .f]rom less than 20 per 1,000 births in the early 1950s to over 45 per 1,000 births in1968-1973. Adoption rates then declined sharply in the 1970s and possibly in the 1980s. As
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 12 8-MAY-12 13:0912Harvard Human Rights Journal / Vol. 25numbers of infants placed for adoption.''79 The decrease in the numbers ofinfants placed for adoption does not mean that children are not available foradoption in the United States. On the contrary, as of September 30, 2009,there were approximately 115,000 children waiting for adoption from fos-ter care.80 There has been a decrease in infants placed for adoption, in largepart, because the population of ''preferred'' adoptable infants (white andnon-special needs) has decreased since the 1950s.81 Several factors have con-tributed to the decrease in preferred adoptable infants in the U.S. since the1950s, including an increase in the use of contraception and abortion, adecrease in the rate of relinquishment of children born to unwed mothers(particularly women who have greater resources), and more women enteringthe workforce and delaying having children.82During the same period, ICA has increasingly served as a ''substitute''for domestic adoptions.83 While it represented only 1% of all adoptions inthe United States in 1965, in 2002 ICA represented 13.9% of all adop-tions.84 Scholars offer several reasons for the increase in ICA, including aperceived lack of adoptable children in the United States (manifested as apreference for healthy light skinned infants),85 the ineligibility of adoptivea result, adoption rates in 2002 (32.4 to 37.6 per 1,000 births) are still substantially lowerthan the historical peak reached in 1971 (47.5 per 1,000 births).Raquel Bernal et al., Child Adoption in the United States: Historical Trends and the Determinants ofAdoption Demand and Supply, 1951-2002, at 7 (Dec. 2007) (unpublished paper), available at http://faculty.wcas.northwestern.edu/~cmo938/adoptAEA.pdf.79. Burton Z. Sokoloff, Antecedents of American Adoption, 3 FUT. CHILD. 17, 23 (1993).80. U.S. DEP'TOF HEALTH & HUMAN SERVS., ADMIN. FOR CHILD. & FAMILIES, THE AFCARSREPORT: PRELIMINARY FY 2009 ESTIMATES 5 (July 17, 2009), available at http://www.acf.hhs.gov/programs/cb/stats_research/afcars/tar/report17.pdf.81. Sokoloff, supra note 79, at 23 (describing the decrease in infants placed for adoption and theRtrends which may have contributed); see also Twila L. Perry, Transracial Adoption and Gentrification: AnEssay on Race, Power, Family and Community, 26 B.C. THIRD WORLD L.J. 25, 28''29 (2006) (citing the''shortage of adoptable white infants result[ing] from, among other factors, the increased availability ofabortion and contraception and from a growing tendency of unmarried white mothers to keep theirbabies'' beginning in the 1960s).82. Sokoloff, supra note 79, at 23; Bernal et al., supra note 78, at 9''13, 20''21; see also Richard A.RPosner, The Regulation of the Market in Adoptions, 67 B.U. L. REV. 59, 61''64 (1987) (discussing theimpact of societal trends on supply and demand in adoption markets).83. Bernal et al., supra note 78, at 15.R84.Id. at 35 tbl.1. The authors also point out that domestic private agency adoptions, foster careadoptions, and intercountry adoptions need to be better understood in terms of the very different popu-lations of adoptive and relinquishing parents that they serve.85. The complex reasons for adoption preferences around race are discussed in the section below onfoster care. Remarkably the United States was the third largest sending country of children to Canadain 2005, with the majority of such children being African American. Galit Avitan, Protecting OurChildren or Our Pride? Regulating the Intercountry Adoption of American Children, 40 CORNELL INT'L L.J.489, 499 (2007). The following authors discuss the preference for white babies: Kirsten Lovelock,Intercountry Adoption as a Migratory Practice: A Comparative Analysis of Intercountry Adoption and Immigra-tion Policy and Practice in the United States, Canada and New Zealand in the Post W.W. II Period, 34 INT'LMIGRATION REV. 907, 933 (2000); Amy Grillo Kales, The Intercountry Adoption Act of 2000: Are ItsLaudable Goals Worth Its Potential Impact on Small Adoption Agencies, Independent Intercountry Adoptions, andEthical Independent Adoption Professionals?, 36 GEO. WASH. INT'L L. REV. 477, 479''80 (2004). Forty-fourpercent of unrelated adoptions in the United States are from foster care, and most of these adoptions are
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 13 8-MAY-12 13:092012 / Owning Laura Silsby's Shame13parents in their own countries (age, marriage status, etc.),86 and the rise ofopen adoptions in the United States.87 Humanitarian concerns88 and lowercosts have also been cited as reasons for the rise of ICA.89Today, the United States is the country with the largest absolute numberof intercountry adoptions per year, though that number has decreased to12,753 in 2009 from an all-time high of 22,990 in 2004.90 Several Euro-pean countries surpass the U.S. demand for children from abroad withgreater per capita ICA than the United States, specifically Norway, Sweden,Denmark, Switzerland, France, and the Netherlands.91 Together theseWestern nations are spending billions of dollars to form families.92 In theUnited States, domestic adoption costs range from $0 to $2,500 for fostercare adoptions and $5,000 to over $40,000 for domestic private adoptionswhile intercountry adoptions range between $7,000 and $30,000.93 Thetotal number of children that were moved through ICA to developed na-of older children, children with disabilities, a sibling group, or children of color. Bernal et al., supranote 78, at 8''9.R86. Saunders, supra note 11, at 4.R87. An ''open adoption'' is an arrangement in which birth parents select their child's adoptiveparents and ''can negotiate a mutually agreeable level of involvement in the child's life after his or herbirth, not unlike visitation arrangements of a divorce.'' Jack Darcher, Market Forces in Domestic Adoptions:Advocating a Quantitative Limit on Private Agency Adoption Fees, 8 SEATTLE J. SOC. JUST. 729, 739 (2010).There have been high-profile cases in the United States of birth parents reclaiming their children suc-cessfully in courts. Saunders, supra note 11, at 8.R88. Humanitarian concern is the historical reason given for the start of intercountry adoption in theUnited States with the first waves of children arriving to the country after World War II, followed bywar orphans from the Korean and Vietnam Wars. The problematic narrative of humanitarian concernfor the start of U.S. intercountry adoption is discussed in King, supra note 20, at 429''35.R89. For a discussion on costs (monetary and non-monetary) of adoption from foster care that act asincentives to seek a ''substitute'' (either traditional conception, private domestic or intercountry agencyadoption, foster care, etc.), see Mary Eschelbach Hansen & Bradley A. Hansen, The Economics of Adoptionof Children from Foster Care (Am. Univ., Dep't of Econ., Working Paper Series, No. 2005-10, 2005).90. In the United States, ''the number of immigrant-orphans soared from 6,000 (or 1.6 per 1,000births) in 1992 to over 20,000 (or 5.6 per 1,000 births) in 2004.'' Bernal et al., supra note 78, at 7. TheRlatest figures show that during the last years of economic recession the number of annual intercountryadoptions dropped from an all-time high of 22,991 in 2004 to 19,608 in 2007, 17,456 in 2008, and12,744 in 2009. U.S. DEP'TOF STATE, BUREAU OF CONSULAR AFFAIRS, INTERCOUNTRY ADOPTION:STATISTICS, http://adoption.state.gov/about_us/statistics.php (click on ''Adoptions by Year'').91. Saunders notes that:Although the US is the largest receiving country in total adoptions, on average accounting forhalf of all ICA, Norway is the leader in per capita intercountry adoptions with 11.2 interna-tional adoptions for every 1,000 births. Other European countries with a higher ratio of percapita intercountry adoptions than the US include Sweden, Denmark, Switzerland, France,and the Netherlands.Saunders, supra note 11, at 5.R92.See id. at 8 (stating that the United States' market alone for intercountry adoption is over onebillion dollars).93. Bernal et al., supra note 78, at 4; see also CHILD WELFARE INFO. GATEWAY, COSTS OF ADOPTINGR2 (2011), http://www.childwelfare.gov/pubs/s_cost/s_costs.pdf (estimating ranges for the cost of differ-ent types of adoption).
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 14 8-MAY-12 13:0914Harvard Human Rights Journal / Vol. 25tions was approximately 30,000 in the late 1990s.94 And, in 2004, over45,000 children were moved through ICA worldwide.95On the opposite end of the ICA market are the sending countries. For2009, the top twenty sending countries to the U.S. (in descending order)were China, Ethiopia, Russia, South Korea, Guatemala, Ukraine, Vietnam,Haiti, India, Kazakhstan, Philippines, China-Taiwan, Colombia, Nigeria,Ghana, Mexico, Uganda, Thailand, Jamaica, and Poland.96 Countries oftenemerge as ''sending countries'' in the wake of political, economic, social,military, or natural upheaval.97 The first wave of ICA en masse to theUnited States came after World War II from countries affected by war suchas Germany, Greece, Italy, Poland, Czechoslovakia, and Hungary, and con-tinued from Korea and Vietnam after the respective wars in which theUnited States participated.98 After the 1970s, in the years of economic col-lapse and political regime transformation, Latin American and Asian coun-tries became the focus of ICA.99 Successive regulatory changes at aninternational level during this period also facilitated ICA to the UnitedStates.100 A third wave of adoptions followed after the fall of the Iron Cur-tain in the 1990s, with countries such as Romania, Russia, and China be-coming major sending countries.10194.See Peter Selman, Intercountry Adoption in the New Millennium; The ''Quiet Migration'' Revisited, 21POPULATION RES. & POL'Y REV. 205, 209''10 (2002).95. Peter Selman, The Rise and Fall of Intercountry Adoption in the 21st Century, 52 INT'L SOC. WORK575, 575 (2009).96. U.S. DEP'TOF STATE, FISCAL YEAR 2009 ANNUAL REPORT ON INTERCOUNTRY ADOPTIONS(Nov. 2009), http://adoption.state.gov/content/pdf/fy2009_annual_report.pdf.97. Ethan B. Kapstein, The Baby Trade, 82 FOREIGN AFF. 115, 116 (2003). Selman mentions thatsending countries decrease the number of adoptees sent abroad as countries move away from crisis, orchange policies towards internal adoption to counter ICA, or suspend ICA in order to control traffick-ing, as has been the case in the past of Romania, Vietnam and Guatemala. Selman, supra note 94, atR216; see also Laura Briggs & Diana Marre, Defining Reproduction: Law, Strangers, Family, Kin, inINTERNA-TIONAL ADOPTION: GLOBAL INEQUALITIES AND THE CIRCULATION OF CHILDREN 29 (Diana Marre &Laura Briggs eds., 2009) (stating that the ''advent [of intercountry adoption] is intimately related toconflicts that arose from colonialism, international warfare, and civil conflicts, and its current patternsare profoundly shaped by global, racial-ethnic, and class inequalities within and between nation-states'').98. Selman, supra note 94, at 212; see also Lovelock, supra note 85, at 911''26.R99. Lovelock, supra note 85, at 927''30; Selman, supra note 94, at 212''13 (mentioning Colombia,RIndia, and Korea as major sending countries in the early 1980s).100.See Mary E. Hansen & Daniel Pollack, The Regulation of Intercountry Adoption 7''8 (BerkeleyElectronic Press, Working Paper No. 1385, 2006), available at http://law.bepress.com/cgi/viewcon-tent.cgi?article=6337&context=expresso&sei-redir=1#search=%22intercounty%20adoption%20regulations%201980s%22 (describing the genesis ofinternational regulation of intercountry adoption in the late 1980s through the adoption provisions ofthe 1989 U.N. Convention on the Rights of the Child and the work of the 1988 Hague Conference onPrivate International Law).101. Lovelock, supra note 85, at 930''37. Selman mentions that in the early 1990s, Romania be-Rcame the largest single source of ICA children, with as many as 10,000 ICA adoptees between March1990 and June 1991, after which the adoptions were halted. By 1995, China and Russia had taken overas major sending nations. Selman, supra note 94, at 213''14.R
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 15 8-MAY-12 13:092012 / Owning Laura Silsby's Shame15B. ICA's Rescue Narrative: Saving Poor ChildrenThe rescue narrative surrounding the Silsby case is consistent with thatsurrounding ICA generally.102 This narrative places the Western ''rescuers''at a moral and normative center to justify foreign intervention as goodwilland can be very dangerous in the context of ICA because it encourages andfacilitates the adoption of children who are not orphans. In fact, very fewchildren who are adopted internationally are actual orphans.103 Instead, theymay be deemed ''social orphans'' because their parents or relatives are im-poverished and disempowered individuals who live in underdeveloped na-tions that do not have the social infrastructure to support economicallydisadvantaged families.104 By conceptualizing these children as victims ofpoverty, Westerners tend to justify paternalistic interventions, includingICA.Post-colonial theorists might describe the rescue justification as a processof ''Othering,''105 in which colonizers create narratives about the moral in-feriority or helplessness of the people they subjugate (the ''Others''106). Inmy previous work, I have described Othering in the context of ICA asMonoHumanism.107 In the context of ICA, MonoHumanism means that chil-dren are not viewed in the context of their family, community and culture,but instead as the potential children of Westerners.102.See King, supra note 20, at 432.R103.See Bhabha, supra note 10, at 185 (noting that ''[t]oday . . . parental destitution and social andRpolitical pressure, rather than death or disappearance, appear to be the prime factors motivating relin-quishment [for adoption]'').104.See Kim, supra note 10, at 856''57 (describing adoptees with ''at least one living birth parent''Ras '''social orphans,' who are legally produced and made available for adoption as such'').105. Edward Said's Orientalism is generally acknowledged as the founding work of postcolonialstudies. Said developed the argument that the Occident needed to create the Orient as the Other, todefine itself at the ''center.'' By accepting the self-referential framework of the West, the post-colonial''Other'' remains subordinated to Western paradigms. The West then feels morally validated'--if notobligated'--to exercise a dominant role in guiding the lesser ''Other.''See generally EDWARD W. SAID,ORIENTALISM (1978); EDWARD W. SAID, CULTURE AND IMPERIALISM (1993). Other theorists are alsopart of the postcolonial tradition, including Frantz Fanon, Ngugi wa Thiong'o, Chinua Achebe,Haunani-Kay Trask, Trinh Minh-Ha, and Albert Memmi. See generally FRANTZ FANON, A DYINGCOLONIALISM (1965); FRANTZ FANON, BLACK SKIN, WHITE MASKS (1967); FRANTZ FANON, THEWRETCHED OF THE EARTH (1963); FRANTZ FANON, TOWARD THE AFRICAN REVOLUTION (1967);Ngugi wa Thiong'o, Moving the Center: An Interview with Charles Cantalupo, inTHE WORLD OF NGUGIWA THIONG'O 219''20 (Charles Cantalupo ed., 1993); NGUGI WA THIONG'O, DECOLONISING THEMIND: THE POLITICS OF LANGUAGE IN AFRICAN LITERATURE4 (1986); CHINUA ACHEBE, THINGS FALLAPART (1952); CHINUA ACHEBE, ANTHILLS OF THE SAVANNAH (1987); HAUNANI-KAY TRASK, FROM ANATIVE DAUGHTER: COLONIALISM AND SOVEREIGNTY IN HAWAII 3, 21 (1993); TRINH T. MINH-HA,WOMAN, NATIVE, OTHER 47''76 (1989); ALBERT MEMMI, THE COLONIZER AND THE COLONIZED(1965).106. The salient features of ''Otherness'' as summarized by Kenneth B. Nunn are:(1) the other is a means of defining the self; (2) the other is an abstraction; (3) the othercannot define itself; and (4) the other is to be feared and controlled.Kenneth B. Nunn, The Child as Other: Race and Differential Treatment in the Juvenile Justice System, 51DEPAUL L. REV. 679, 698 (2002).107. King, supra note 20, at 414.R
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 16 8-MAY-12 13:0916Harvard Human Rights Journal / Vol. 25Ratna Kapur identified a similar process involving women; she hasshown how women in developing countries are portrayed as victims of theirculture, thereby reinforcing stereotypical representations and subordinatingthose cultures to the presumably enlightened or more civilized culture ofthe West. Kapur explains how this process not only reinforces the notionthat women in developing countries are perpetually marginalized and un-derprivileged, but encourages interventions into their lives that are ''remi-niscent of imperial interventions in the lives of the native subjects andwhich represent the 'Eastern' woman as a victim of a 'backward' and 'unciv-ilized' culture.'' Kapur's work provides a useful framework for understand-ing how conceptualizing children as victims of poverty invites paternalisticinterventions under the banner of aid, when in reality, such interventionsmay cause more harm than good by disrupting local social networks of self-aid.108Along these lines, Smolin questions the moral underpinning of child res-cue narratives, noting that the cost of one intercountry adoption could sup-port an entire family in an impoverished country, instead of separating achild from his or her family.109 Moreover, Saunders explains that while hu-108. Ratna Kapur writes:Women in the Third World are portrayed as victims of their culture, which reinforces stereo-typed and racist representations of that culture and privileges the culture of the West. In theend, the focus on the victim subject reinforces the depiction of women in the Third World asperpetually marginalized and underprivileged, and has serious implications for the strategiessubsequently adopted to remedy the harms that women experience. It encourages some femi-nists in the international arena to propose strategies which are reminiscent of imperial inter-ventions in the lives of the native subject and which represent the ''Eastern'' woman as avictim of a ''backward'' and ''uncivilized'' culture.Finally, the victim subject and the focus on violence invite remedies and responses from statesthat have little to do with promoting women's rights. Thus, a related concern is that thevictim subject position has invited protectionist, and even conservative, responses from states.The construction of women exclusively through the lens of violence has triggered a spate ofdomestic and international reforms focused on the criminal law, which are used to justifystate restrictions on women's rights '' for the protection of women. The anti-trafficking cam-paign, with its focus on violence and victimization, is but one example.Ratna Kapur, The Tragedy of Victimization Rhetoric: Resurrecting the ''Native'' Subject in International/Post-Colonial Feminist Legal Politics, 15 HARV. HUM. RTS. J. 1, 6 (2002).109. Smolin notes that:Americans who are overwhelmed by the poverty and apparent degradation experienced bymasses of people in India somehow seem to feel it a noble response to spend between $10,000and $20,000 adopting an individual child, while leaving behind, in the orphanages, on thestreets, and in the villages, tens of millions of similarly situated children. The arbitrariness ofselecting an individual child for such rescue, while doing little or nothing for those leftbehind, does not seem to bother most. The odd effect might be compared to responding to amassive famine by selecting one starving individual for a donated diet of caviar and cham-pagne. Obviously, the cost-effective, rational response to a famine is to erect a feeding stationfor the masses with low-cost, basic nutrition, not helicopter a few individuals out of thecountry so they can dine in ethnic restaurants in America.David M. Smolin, The Two Faces of Intercountry Adoption: The Significance of the Indian Adoption Scandals,35 SETON HALL L. REV. 403, 484''85 (2005); see also Briggs & Marre, supra note 97, at 1 (stating thatRthe contemporary form of intercountry adoption ''has been marked by the geographies of unequalpower, as children move from poorer countries and families to wealthier ones'').
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 17 8-MAY-12 13:092012 / Owning Laura Silsby's Shame17manitarian narratives are often used to explain demand for ICA, self-servingand personalized motivations are driving a profitable market.110 For themost part, humanitarian or rescue narratives serve as a cover for the intensedemand for adoptable children from developing nations to counter Westerninfertility. Western parents seeking to adopt can ultimately overcome ob-stacles to acquiring a child with their wealth, and the combination of theirdemand and resources makes for an inevitable capitalist dynamic.111 As Ni-cole Bartner Graff states:Any area with such large amounts of capital flowing into it,when guided by a free market economy, such as the one in placein the U.S., will be driven by the demands and expectations ofthat market. International adoption has, in effect, become a mar-ket driven avenue to child acquisition.112These market demands, justified in part by the rescue narrative, continuenot only to drive lawful ICA but also, as in the Silsby case, to temper theresponse to potential trafficking cases.C. The Link Between ICA and Child TraffickingUNICEF defines ''child trafficking'' as ''the act of recruitment, transpor-tation, transfer, harbouring or receipt of a child for the purpose of exploita-tion regardless of the use of illicit means, either within or outside acountry.''113''Illicit means'' include ''coercion, abduction, fraud, deception,the abuse of power or of a position of vulnerability, or the giving or receiv-ing of payments or benefits to achieve the consent of a person having con-trol over another person.''114 And ''exploitation'' includes illicitadoption.115 Thus, the Silsby case, apparently involving illicit means to fa-cilitate ICA'--namely fraud, deception, and the abuse of the families' posi-tion of vulnerability after the earthquake'--would fit the definition of childtrafficking.110. Saunders, supra note 11, at 8.R111.See supra note 93 and accompanying text (referring to the costs of adoption).R112. Graff, supra note 11, at 407.R113. UNICEF, GUIDELINES ON THE PROTECTION OF CHILD VICTIMS OF TRAFFICKING 9 (2006),http://www.unicef.org/ceecis/0610-Unicef_Victims_Guidelines_en.pdf (citing Protocol to Prevent,Suppress and Punish Trafficking in Persons, Especially Women and Children, art. 3., Dec. 15, 2000,T.I.A.S. No. 13127 and Council of Europe Convention on Action against Trafficking in Human Beings,art. 4, Feb. 2, 2008, C.E.T.S. No. 197).114.Id. (citing Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Womenand Children, supra note 113, at art. 3).R115.Id. (citing Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Womenand Children, supra note 113, at art. 3; Convention on the Rights of the Child, art. 34. Nov. 20, 1989,R1577 U.N.T.S. 3.; Convention Concerning the Prohibition and Immediate Action for the Eliminationof the Worst Forms of Child Labor, art. 3, Nov. 19, 2000, 2133 U.N.T.S. 161; and Hague Conventionon Protection of Children and Co-operation in Respect of Intercountry Adoption, art. 1, May 29, 1993,32 I.L.M. 1134).
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 18 8-MAY-12 13:0918Harvard Human Rights Journal / Vol. 25But is the logical conclusion that ICA is generally linked to child traf-ficking? After all, the vast majority of parents who adopt internationally donot have nefarious intentions, and the vast majority of ICA does not involveabduction, fraud, or deception. But what of the abuse of power and vulnera-bility? Even in cases where good intentions drive ICA, the transaction over-whelmingly occurs between families that are at opposite ends of the powerspectrum'--the birth families are undeniably vulnerable, and the adoptivefamilies are undeniably powerful.Because of this power imbalance, the needs of the adoptive families arepredisposed to drive ICA. And, because of a conceptual and theoretical dis-placement of the lives of poor people and concomitant failure to see chil-dren in the context of their society, family, and culture, the needs andworldview of Western families drive ICA. As early as 1978, in ''The Eco-nomics of the Baby Shortage,'' Richard Posner and Dr. Elisabeth Landes116discuss ''the pros and cons of using the market to equilibrate the demandfor and supply of babies for adoption.''117 Posner argues for partial deregula-tion of the baby market so that the supply of babies will meet demand. Healso states that, ''some unknown fraction of adoptions is of babies bought inthe black market, and the part of the demand for a good that is satisfied ina black market reflects the shortage in the lawful market.''118Although Posner was writing decades before the surge in ICA, his analy-sis can be used to show how supply and demand drive ICA today and openthe door to illicit trafficking. As the demand for children has increased,child traffickers who operate in the black or grey adoption markets haveinfiltrated some sending countries.119 In particular, child trafficking hasplagued countries that were unprepared to handle a sharp rise in the de-mand for children and unable to effectively regulate ICA.120The reality is that even countries that have handled ICA well thus far aresusceptible to child trafficking. China, for example, is known for its tightlycontrolled adoption market.121 Even so, recent accounts of child traffickingin China's adoption system suggest that high demand has led to the exhaus-tion of ''babies and toddlers who are legally available for adoption,[thereby] causing the temptation to illicitly launder and traffic children forpurposes of [ICA].''122Western demand for children may even drive the development of childtrafficking in the adoption markets of countries already plagued by child116. Elisabeth M. Landes & Richard A. Posner, The Economics of the Baby Shortage, 7 J. LEGAL STUD.323 (1978).117. Posner, supra note 82, at 59, 59''60.R118.Id. at 69.119.See Smolin, supra note 12, at 127''45.R120.See id. at 127''31, 135''45 (suggesting that poor sending countries begin to face child launder-ing issues as their intercountry adoption markets grow and citing as an example the child trafficking inCambodia's adoption market).121.Id. at 131.122.Id. at 128.
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 19 8-MAY-12 13:092012 / Owning Laura Silsby's Shame19trafficking for other purposes.123 The prospect of Western money invitescorrupt actors who ''develop systems that can deliver'' children ''as quicklyand as young as possible'' to meet the desires of Western adoptive par-ents.124 As Smolin has found, ''[s]ocieties in which children can be boughtand sold for sex and labor for a few hundred dollars or less, with police andpublic officials bought off, easily transition into the business of supplyingpaper-adoptable 'orphans.'''125Ultimately, for child traffickers involved in ICA markets, Western de-mand means Western money. Child traffickers exploit the demand for chil-dren for financial gain. Smolin and others have highlighted the corruptinginfluence of the large amounts of wealth from Western countries pouringinto the adoption markets of sending countries.126 In short, ''[l]argeamounts of money, relative to the economy of the sending country, create atemptation to launder children.''127Thus, Smolin suggests that ICA can provide cover for illegal practicesbecause it is a mechanism for ''laundering'' (legitimizing) children who aremade available for adoption through trafficking, kidnapping, buying, andselling, but shuffled through licensed agencies for placement.128 In a case ofhistory repeating itself, solutions to these problems are mostly brought upas questions of regulatory ''design.''129 However, as Smolin points out, theproblem is money:Money is the primary motivation in most cases of child launder-ing in the intercountry adoption system. The transfer of Westernwealth into sending nations is the primary vulnerability of theintercountry adoption system. Western funds provide an incen-tive to engage in child laundering which attracts unscrupulouspersons into the system while tempting even charitable childwelfare institutions into unscrupulous conduct.130123.''Many poor nations also suffer from a high incidence of child trafficking, generally conductedfor purposes of sex or labor. Thus, the commodification of children may already be endemic in some ofthese societies, making it easier for the adoption system to be utilized for such purposes.''Id. at 130(footnote omitted).124.See id. at 134''35.125.Id. at 135.126.See id. at 175.127.Id. at 128.128. Smolin mentions several scenarios of illegality in the acquisition of children that are laterlegitimized by intercountry adoption, including (a) intermediaries buying children from poor familiesfor amounts ranging from $2,000 to $20,000, (b) citizens directly buying children in poor countries, (c)luring parents into delivering their children under false pretenses to orphanages, hostels or schools(presumptively for their shelter) and processing the children as orphans available for adoption, (d) fun-neling lost children into trafficking rings instead of reunifying them with their families, and (e) diverseforms of kidnapping where a child is forcibly taken away from their family. Id. at 117''24.129. As discussed in more detail in Part IV below, in the early 20th century, Western liberalgovernments adopted a new approach to governance, based on rationalization and research, to addresssocial problems. ''Design'' or ''purposeful social planning and management'' became the ethos of Pro-gressive and New Deal reformers and professionals.130. Smolin, supra note 12, at 175.R
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 20 8-MAY-12 13:0920Harvard Human Rights Journal / Vol. 25Some have suggested eliminating and diminishing money transfers in allICA transactions to reduce the profit-seeking motives of intermediaries, re-forming international and domestic legislation towards accountability andtransparency of parties involved in ICA, and criminalizing trafficking.131However, as most law and economics experts would agree, the creation ofregulatory obstacles to transactions in a profitable market simply heightensthe positive incentives for black markets.132 Furthermore, the only means tocounter black markets is to lower the profit or increase the cost of illegalitythrough enforcement, which in a world of porous borders and laws hasproven impossible with respect to nearly every illegal trade.133The instability of countries that suddenly become supply countries forICA further invites the possibility of deplorable practices involving thebuying, selling, ''baby farming,'' and abuse of children. Countries such asRomania, Cambodia, and Guatemala that were socially, politically, eco-nomically, and legally unprepared to receive the onslaught of adults seekingchildren, have had to cease ICA altogether for long periods at a time due tocorruption and the trafficking, selling, and abuse of children.134 These odi-ous practices are repeated on a global scale as a consequence of a globalmarket in children.135D. The International Community's Response to ICAThe international community has responded to ICA by seeking to pro-tect the internationally recognized human rights of children and the birthfamily's right to unity, while facilitating the adoption of children for whominternational adoption is the best solution. The international community asa whole, of course, is not tethered to the theoretical and conceptual con-struct of MonoHumanism. The first effort to address the surge in ICA andprotect children's rights was the 1989 United Nations Convention on theRights of the Child (''CRC'').136 The CRC ''establishes a set of globallydefined children's rights and provides that in all actions concerning chil-131.Id. at 174''200.132.See Margaret Jane Radin, What, If Anything, Is Wrong with Baby Selling?, 26 PAC. L.J. 135, 139(1995).133. For a general discussion of booming illegal trade and its consequence to legal trade in the lastdecades, see MOISES NAIM, ILLICIT: HOW SMUGGLERS, TRAFFICKERS AND COPYCATS ARE HIJACKINGTHE GLOBAL ECONOMY (2007).134.See Smolin, supra note 12, at 124''35.R135. Maskew comments on the rampant trafficking that has accompanied intercountry adoptionfrom Cambodia. Trafficking rings usually involved baby recruiters, baby buyers (intermediaries such asorphanages or others), and false documentation for the child. Scandal in Cambodia led to a moratoriumon adoptions from the country. Trish Maskew, Child Trafficking and Intercountry Adoption: The CambodianExperience, 35 CUMB. L. REV. 619, 633''35 (2005). Smolin comments on the Masha Allen case in whicha girl was adopted from Russia for the purposes of sexual exploitation. Smolin, supra note 15, at 18''27.RSmolin also covers trafficking scandals in Cambodia, India, and Guatemala related to the selling, buy-ing, ''baby farming,'' and kidnapping of children. Smolin, supra note 12, at 135''70.R136. Convention on the Rights of the Child, art. 21(d), Nov. 20, 1989, 1577 U.N.T.S. 3 [hereinaf-ter CRC].
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 21 8-MAY-12 13:092012 / Owning Laura Silsby's Shame21dren, the best interests of the child shall be a primary consideration.''137Although the CRC is one of the most widely adopted conventions, it re-sulted in controversy because its final language excluded an obligation forcountries to take ''appropriate measures to facilitate permanent adoption ofthe child.''138 The language was left out because of the idea that adoptionwas not the only way to provide children with stable homes and that itcould sometimes work in opposition to the best interests of the child.139The exclusion of this language is one of the reasons the United States hasrefused to ratify the CRC.140In partial response to conflict over the terms of the CRC, the 1993Hague Convention on Protection of Children and Co-operation in Respectof Intercountry Adoption (''Hague Convention'') was produced by theHague Conference on Private International Law in May 1993.141 The pur-pose of the Hague Convention was to establish standards for ICA and asystem of enforcement, as well as the means to address the worst ICA prac-tices, such as corruption, kidnapping, sale of children, and falsification ofdocuments.142 The United States ratified the Hague Convention in 2000and enacted the Intercountry Adoption Act of 2000 (''IAA'')143 to complywith the Hague Convention's mandate to create a Central Authority tooversee the implementation of the Hague Convention, among otherobligations.UNICEF is guided by the spirit of the CRC. As such, UNICEF believes''every child has the right to know and be cared for by his or her ownparents,'' and that ''families should receive support to care for their chil-dren.''144 In this sense, UNICEF supports ICA only if it facilitates the ''bestinterests of the child,'' and thus considers the Hague Convention a positive137. Linda J. Olsen, Live or Let Die: Could Intercountry Adoption Make The Difference?, 22 PENN. ST.INT'L L. REV. 483, 507''08 (2004).138. Kate O'Keeffe, The Intercountry Adoption Act of 2000: The United States' Ratification of the HagueConvention on the Protection of Children, and its Meager Effect on International Adoption, 40 VAND. J. TRANS-NAT'L L. 1611, 1626 (2007).139.Id.140.Id.141. Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption,May 29, 1993, 32 I.L.M. 1139; see also O'Keeffe, supra note 138, at 1626.R142. O'Keeffe, supra note 138, at 1626''28.R143. Intercountry Adoption Act of 2000, 42 U.S.C. §§ 14901''54 (2006).144. UNICEF states:The Convention on the Rights of the Child, which guides UNICEF's work, clearly states thatevery child has the right to know and be cared for by his or her own parents, wheneverpossible. Recognising this, and the value and importance of families in children's lives,UNICEF believes that families needing support to care for their children should receive it,and that alternative means of caring for a child should only be considered when, despite thisassistance, a child's family is unavailable, unable or unwilling to care for him or her.For children who cannot be raised by their own families, an appropriate alternative familyenvironment should be sought in preference to institutional care which should be used onlyas a last resort and as a temporary measure. Inter-country adoption is one of a range of careoptions which may be open to children, and for individual children who cannot be placed in apermanent family setting in their countries of origin, it may indeed be the best solution. In
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 22 8-MAY-12 13:0922Harvard Human Rights Journal / Vol. 25achievement towards improving conditions of ICA.145 UNICEF also callsfor more stringent protocols to be applied in the case of disasters and war toprotect children without parental care, who may be temporarily separatedfrom their parents or other family caregivers.146International organizations including UNICEF, UNHCR, the Interna-tional Confederation of the Red Cross, and international NGOs such as theSave the Children Alliance reject ICA in cases of disaster or war, and insteadplace priority on ''family tracing.''147 Creating a national registry of chil-dren in disasters is a critical instrument for family tracing and reunifica-tion.148 Ultimately, these efforts to regulate ICA may mitigate some of theharm that can come of ICA markets. But since ICA is tethered toMonoHumanism and driven by market forces, and because the interests ofWestern prospective adoptive parents drive the demand side of the market,ICA will continue to separate children from their birth families, communi-each case, the best interests of the individual child must be the guiding principle in making adecision regarding adoption.UNICEF, Statement: UNICEF's Position on Inter-country Adoption, http://www.unicef.org/media/me-dia_41118.html (last visited Mar. 12, 2012). Similarly, Article 7 of the CRC provides that ''[t]he childshall be registered immediately after birth and shall have the right from birth to a name, the right toacquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.'' CRC,supra note 136, at art. 7 (emphasis added). Article 18 provides, ''[f]or the purpose of guaranteeing andRpromoting the rights set forth in the present Convention, States Parties shall render appropriate assistanceto parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure thedevelopment of institutions, facilities and services for the care of children.''Id. at art. 18 (emphasisadded).145. UNICEF, supra note 144. Interestingly, UNICEF's clear recognition of the importance ofRmaintaining the connection between children and their biological family is also reflected in local Hai-tian law, which provides a legal obligation to keep all adopted children in connection with their biolog-ical family. See Patrice Brizard, Entretien avec Marlene Hofstetter [Interview with Marlene Hofstetter],UNICEF HAITI, http://www.unicef.org/haiti/french/protection_10388.htm (last visited Nov. 2, 2011)(noting that in Haiti ''simple adoption,'' in which a child's ties to her biological parents and family arepreserved, is in effect for domestic adoptions and national and international adoptions by Haitiansliving abroad).146.See UNICEF, supra note 144 (calling for a prohibition on the inter-country adoption of and forRfamily-tracing efforts for children separated from their families during times of disaster and war).147. UNICEF states:The case of children separated from their parents and communities during war or naturaldisasters merits special mention. It cannot be assumed that such children have neither livingparents nor relatives. Even if both their parents are dead, the chances of finding living rela-tives, a community and home to return to after the conflict subsides exist. Thus, such chil-dren should not be considered for inter-country adoption, and family tracing should be thepriority. This position is shared by UNICEF, UNHCR, the International Confederation ofthe Red Cross, and international NGOs such as the Save the Children Alliance.Id. Without tracing efforts, children can be permanently separated from their family.148. In the case of baby Jenny, she was found severely injured under the rubble of a house, and''assumed to be an orphan,'' even renamed by the paramedics and doctors as Patricia. She was immedi-ately taken out of country to Miami for medical attention. Her parents, Nadine Devilme and JuniorAlexis, were informed of her removal because she was placed in a registry system. Although her parentshad lost all paperwork to prove their parenthood, with the help of pro bono attorneys in the U.S., theywere able to provide DNA to show that they were her parents, and were ultimately reunited. HaitianCouple Await Baby's Return, CNN (Mar. 8, 2010), http://www.cnn.com/2010/HEALTH/03/08/haiti.baby.couple.patricia/index.html?hpt=C1 Annie Butterworth Jones, Attorneys Help Reunite 'Baby Jenny'with Her Haitian Family, FLA. BAR NEWS, May 15, 2010.
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 23 8-MAY-12 13:092012 / Owning Laura Silsby's Shame23ties, and countries. By contrast, poor communities in places like Haiti havedeveloped their own systems of child placement, which do not sever theseties. The next section specifically focuses on the timoun or restav`ek childplacement system in Haiti.III.TIMOUN (RESTAV`EK): HAITIAN CUSTOMS OF CHILD PLACEMENTIn a country such as Haiti where 80% of the population lives below theinternational poverty line and 54% lives in abject poverty,149 periods ofconditioned monetary aid do not address the institutionalized poverty andextreme class stratification of the country. Instead, in the day-to-day, mostHaitian people manage for themselves without foreign assistance. This sec-tion discusses a long-standing custom of child care arrangement used bypoor parents in the poorest nation of the Western hemisphere'--known astimoun or restav`ek.Some Haitian parents customarily place their children into boarding ar-rangements with wealthier extended family or acquaintances in cities,where a child earns his or her keep by providing unpaid domestic work.These children are known in Haitian Creole as ''restav `eks,'' meaning chil-dren who ''stay with'' or ''reste avec'' others.150 The term ''restav `ek'' is alsoused colloquially in a pejorative way to denote servile dependence.151 Toavoid humiliating a child who provides domestic services, Haitians usemore socially acceptable terms such as ''children who live with others'' (timoun ki rete kay moun) or ''children who render services'' (timoun rann s`evis),where timoun in Creole simply means ''little one.''152Like ICA, the timoun system has also been abused, raising widespreadconcern about the exploitation of children, including forced labor. But thefact that some actors exploit this custom should not completely overshadowthe benefits it provides poor families and poor children, when it works asintended. The point of this section is to recognize that some of the benefitsof timoun'--such as maintaining family relationships'--must inform childplacement schemes.149.CIA FACTBOOK, supra note 38, at Haiti Economy section; see alsoGLENN R. SMUCKER &RGERALD F. MURRAY, USAID/HAITI MISSION, THE USES OF CHILDREN: A STUDY OF TRAFFICKING INHAITIAN CHILDREN 14 (2004), available at http://pdf.usaid.gov/pdf_docs/PNADF061.pdf.150. For a thorough analysis of restav`ek/timoun in the context of child trafficking and smuggling, seeSMUCKER & MURRAY, supra note 149.R151.Id. at 22.152.Id. Many studies about Haitian children who live with others and render domestic servicesuse the word ''restav `ek.'' George Eaton Simpson in his early sociological studies of Haiti likewise usedthe term ''Ti Moune.'' George Eaton Simpson, Haiti's Social Structure, 6 AM. SOC. REV. 640, 648 n.11(1941) (''A Ti-moune is a peasant child who goes to live with a family in the elite and who performsvarious kinds of work in return for his meals, clothing, and a place to sleep.''); Roc´Ä±o G. Sumillera,Postcolonialism and Translation, 4 NEW VOICES IN TRANSLATION STUD. 26 (2008).
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 24 8-MAY-12 13:0924Harvard Human Rights Journal / Vol. 25A. Understanding TimounBecause of the informal nature of the practice, it has been difficult todetermine precisely how many children in Haiti are affected by the timounsystem. A 2010 U.S. Department of State report estimates that approxi-mately 200,000 children in Haiti work in the restav`ek system.153 However,many statistics confuse the number of children living outside the unitaryfamily model with restav`ek.154 According to anthropologists Smucker andMurray, a more reliable statistic is that one-fifth of children in Haiti areliving away from both of their biological parents (over 650,000 children).155Perhaps 60% of such children, or maybe only 4%, are restav`ek, as a recent2000 article suggests.156 Researchers know that most restav`eks are in the agerange of 5 to 14 (with a majority in the age range of 12 to 14), girls aretwice as likely to be restav`eks, and there is a higher incidence of this form ofchild placement in urban settings.157 Yet, the true overall numbers remainunknown.158Not all host household arrangements qualify as restav`ek. For example, aparent might place a child in another's house during a crisis or as a tempo-rary means to send a child to school.159 Or a child might be sent to livewith extended family, and though the child might help around the housewithout payment, the child very much remains a child of the house, not aservant.160 Orphanages in Haiti are also places were a parent might send achild for a brief time as a means to make ends meet and provide temporarychild care.161 Many orphanages are not officially licensed, and thoughtermed orphanages, function primarily as child boarding or group homes.162The institution of timoun is old. In a 1942 article, Simpson claims that''Ti-moune . . . has been followed since the founding of the Republic ofHaiti.''163 In a 1941 article, Simpson observes two primary classes in Haiti:''the members of the small privileged elite and the immense mass of barelysubsisting peasants.''164 Explaining that they were ''almost separate socie-153.BUREAU OF DEMOCRACY, HUMAN RIGHTS, & LABOR, U.S. DEP'TOF STATE, 2010 HUMANRIGHTS REPORT: HAITI 22, available at http://www.state.gov/g/drl/rls/hrrpt/2010/wha/154509.htm.154.SMUCKER & MURRAY, supra note 149, at 16''17.R155.Id. at 17.156.Id.157.Id. For a discussion of the more precarious condition of girl restav`eks and their higher vulnera-bility to sexual violence, see Benedetta Faedi, The Double Weakness of Girls: Discrimination and SexualViolence in Haiti, 44 STAN. J. INT'L L. 147, 169''70 (2008).158.SMUCKER & MURRAY, supra note 149, at 17''18.R159.Id. at 22.160.Id. at 23.161.Id. at 33.162.See David Gauthier-Villars et al., Earthquake Exposes Haiti's Faulty Adoption System, WALL ST.J., (Feb. 27, 2010), http://online.wsj.com/article/SB10001424052748704625004575089521195349384.html.163. George Eaton Simpson, Sexual and Familial Institutions in Northern Haiti, 44 AM. ANTHROPOL-OGIST 655, 666 (1942).164. Simpson, supra note 152, at 640.R
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 25 8-MAY-12 13:092012 / Owning Laura Silsby's Shame25ties,''165 Simpson points out ways in which the two classes integratedthrough ''[p]atterns of dominance and deference inherited from the colonialperiod.''166One such pattern was the institution of timoun, which supported the rela-tively infrequent vertical mobility and integration of a child from themasses into the elite class.167 In his 1942 article, Simpson explains that thecustom of sending peasant children to live several years with well-landedestates was a means for ''a peasant to have an influential [military or other-wise prominent] protector,'' or a means by which a poorer family gainedfavor and connection to a more influential family.168 A child might be sentto live in another estate as a ''token of friendship,'' and as such, timoun wasalso an established adoption practice.169In a later 1952 article on affiliations through work in a rural region ofHaiti, Metraux likewise notes that the transfer of people from poor house-holds to wealthier households was common.170 Both Simpson and Metrauxsee timoun as a form of familial and estate affiliation used to establish net-works of support among landed or military estates, within an agriculture-based economy with extreme class stratification.In a similar fashion, a 2004 article by Smucker and Murray confirms that''[r]elationships in Haiti often have a transactional character. Negotiationsover the giving and taking of children are no exception. Decision making inchild placement is based on a calculus of costs, benefits, and householdneeds.''171 The relationship between the sending and receiving family re-mains a fundamental part of the transaction:[P]lacement of a restav `ek child has a long-term connotationwhereby the receiving household assumes primary responsibilityfor 'taking care of the child' or rearing the child in return for thechild's domestic services. The traditional arrangement for suchrestav `ek children also assumes that the caretaker household will165.Id. at 645.166.Id. at 647.167.Id. at 648.168. Simpson, supra note 163, at 667; see also Chantal Collard, Triste terrain de jeu: `A propos deRl'adoption internationale [A Sad Playground: On International Adoptions], 1 GRADHIVA 209, ¶ 14 (2005),available at http://gradhiva.revues.org/367#tocto1n1 (noting that historically the relationships formedthrough timoun have been key to the survival of poor families).169.''Professor Herskovits bases his conclusion upon extensive field research in West Africa, DutchGuiana, Haiti, and the United States, and is no doubt correct in maintaining that the tradition ofadoption is an important part of the Ti-moune system.'' Simpson, supra note 163, at 666''67.R170. Rhoda Metraux, Affiliations Through Work in Marbial, Haiti, 25 PRIMITIVE MAN 1, 6 (1952).In well-to-do families [. . .] there is more work than the family, however large, can manage oris willing to undertake. In these households one finds collected younger and poorer kin,servants, assistants and hangers-on who contribute work for their keep; some work seasonally,some all year round. It is the heads of such households who are the notables of the neighbor-hood and who are the employers of larger groups of workers outside the family.Id.171.SMUCKER & MURRAY, supra note 149, at 26.R
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 26 8-MAY-12 13:0926Harvard Human Rights Journal / Vol. 25send restav `ek children to school and cover the costs for doingso.172Employers of restav`ek children generally wish to show sending parents that,true to the expectations, their children are being treated well and receivecare and education in exchange for their labor.173 From the point of view ofHaitian parents, sending children to live with others is a means of instillingvalues, such as responsiveness to family needs, generosity, a good workethic, and a fierce pride in schooled education.174The practice of timoun also transfers children from poor rural families topoor urban families, to assist in daily survival activities such as carryingwater to the home.175 From this point of view, the practice of timoun is ameans by which the poor support the poor in an extremely stratified soci-ety. The custom of timoun is a creative adaptation to poverty, which allowspoor parents to provide alternative care for their children, includingeducation.B. Benefits of TimounDespite its vulnerability to exploitation, the practice of timoun can bemutually beneficial to Haitian parents, children, and host families. For ex-ample, parents benefit by ''loan[ing] children to gain sociopolitical andcommercial contacts in village and urban areas and to attain educationalopportunities for their children.''176 Generally, timoun placements are a solu-tion to difficult circumstances faced by the child's family.177 It is a responseto parents' inability to support a child, whereby the host family provides172.Id. at 22.173.Id. at 26''27.174.See id. at 13 (noting the importance of these values). One of the primary reasons to sendchildren to cities is the lack of adequate schools in rural areas.Id. at 13''14, 26, 31.175. The practice is mostly rejected as outdated and inhumane by the country's elite.Id. at 29''30.The need for household labor among the poor is hardly frivolous. Less than 30 percent ofhouseholds in the Port-au-Prince metropolitan area have running water. In the city's teemingslums, water is sold by the bucket, and the unit cost of water is far higher in poor neighbor-hoods than more affluent areas. Throughout Haiti the traditional carriers of water are womenand children, especially children. In Haiti's urban slums, water from public fountains orbroken pipes is supplied by a veritable army of young children, including large numbers oftimoun servant children.Id. at 29.176. Timothy T. Schwartz, Subsistence Songs: Haitian T´eat Performances, Gendered Capital, and Liveli-hood Strategies in Jean Makout, Haiti, 81 NEW W. INDIAN GUIDE 6, 25 (2007); see also Collard, supra note168, ¶ 14 (noting the formation of alliances between the wealthier families that sponsor restav`ek chil-Rdren and the poor families who provide those children).177.See TONE SOMMERFELT ET AL., FAFO INST. FOR APPLIED INT'L STUDIES, CHILD DOMESTIC LA-BOUR IN HAITI: CHARACTERISTICS, CONTEXTS AND ORGANISATION OF CHILDREN'S RESIDENCE, RELO-CATION AND WORK 64, 75, 88 (Tone Sommerfelt ed., 2002), available at http://www.fafo.no/ais/other/haiti/childlabour/EEDH_Report_draft_english.pdf.
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 27 8-MAY-12 13:092012 / Owning Laura Silsby's Shame27care when the child's family cannot.178 Consequently, parents no longer facethe burden of providing for the expenses of that child's care.179Timoun can also benefit children by allowing them to live in a more sta-ble environment. The host family provides for the child's basic needs, andthe boarding arrangement tends to offer an improved living environmentand better material conditions.180 The child receives ''better care, betterclothes, and better schooling.''181Timoun also fosters opportunities for up-ward social mobility for the child and her parents.182 A principal advantageof the practice is that it addresses Haitian parents' strong desire for theirchildren to obtain a formal education, since there are better schools intowns and cities.183 Parents have an expectation that the child will be sentto school under the boarding arrangement.184 Because parents believe thattheir child will encounter better life opportunities in cities and towns, theexpectation is that the child's placement with the host family will allow thechild to secure some advantage for the child or her parents.185 Similarly, theexpectation is that the child's school attendance will enable her to developcontacts that will lead to a good paying job, so the child will be able toassist her parents.186On a more fundamental level, in some circumstances, timoun facilitatesHaitian children's development by equipping them with life skills and aidstheir maturation by building character. It has been found that both parentsand children find that timoun placements make children more disciplinedand give them a sense of competence.187 School attendance leads to thechild's literacy, and having responsibilities cultivates in the child ''beingwell-mannered'' and developing ''new habits.''188 Similarly, parents also ap-preciate the informal training and guidance that the child obtains fromworking in another household.189 Perhaps most importantly, the child/par-ent relationship is not severed.190Claudia Fonseca describes similar local community-based practices of''child circulation and ado ¸cao `a brasileira [adoption Brazilian-style]'' in178.See id. at 58, 65.179.See id. at 69.180.See id. at 44, 58''62.181.TIMOTHY T. SCHWARTZ, FEWER MEN, MORE BABIES: SEX, FAMILY, AND FERTILITY IN HAITI165 (2009).182.See id.; SOMMERFELT ET AL.,supra note 177, at 88.R183.See SOMMERFELT ET AL., supra note 177, at 71''72.R184.Id. at 65; SCHWARTZ, supra note 181, at 165.R185.SOMMERFELT ET AL., supra note 177, at 68, 71''73, 75''76.R186.Id. at 63, 75''76.187.See id. at 60.188.See id. at 60, 62.189.Id. at 72.190.See id. at 46''47 (providing an account of a former Haitian child domestic who has maintainedties to her mother and other relatives); id. at 70''71 (relating the personal account of a Haitian motherwho placed her daughters into a timoun arrangement and visits them occasionally taking foodprovisions).
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 28 8-MAY-12 13:0928Harvard Human Rights Journal / Vol. 25poor favelas in Brazil.191 Fonseca argues that these local customs are func-tional for both temporary and permanent child placement, based on com-munity support and open relationships. But Cardarello cautions that today,these forms of child placement face pressure by legal authorities to placeBrazilian children for international adoption as a preference over local childplacement customs.192 Nevertheless, Fonseca believes that poor parentsfrom the favelas will continue to find creative ways to evade interventionistgovernment adoption policies, which increasingly reflect international andforeign standards of child rights, and which favela mothers are legally dis-empowered to contest in the grand scheme of inequalities between theSouth/Third World countries and the North/Western countries.193Like ''adoption Brazilian style,'' the practices of timoun or restav`ek do notfit the idealized model for Western child care or the idealized Western fam-ily, whereby parents raise their children in a self-sufficient nuclear family.These caregiving practices do not correspond with our unacknowledgedMonoHumanistic approach to the world. As I have said elsewhere, this West-ern definition of family ''fails to reflect the cultural diversity and realities ofmany children'' and negates other prevalent family configurations whichmake up functional families, such as single-parent households, grandparent-grandchild households, same-sex couples, and extended family arrange-ments, even within the United States.194C.Timoun's Vulnerability to ExploitationDespite the benefit and opportunity a child may derive from an arrange-ment of timoun, the practice has also long been questioned, due to abusesand denial of promised opportunities that children living in host house-holds may encounter.195 The debate has changed very little over time. Spe-cifically, timoun is highly criticized by many humanitarian aid and religiousorganizations as a form of child slavery.196191. Claudia Fonseca, Inequality Near and Far: Adoption as Seen from the Brazilian Favelas, 36 LAW &SOC'Y REV. 397, 404''12 (2002); see also Andr ´ea Cardarello, The Movement of the Mothers of the CourthouseSquare: ''Legal Child Trafficking,'' Adoption and Poverty in Brazil, 14 J. LATIN AM. & CARIBB. ANTHROP.140, 146 (2009) (describing child circulation customs among poor Brazilian communities).192. Cardarello, supra note 191, at 146''51.R193. Fonseca, supra note 191, at 423''27.R194. Shani M. King, U.S. Immigration Law and the Traditional Nuclear Conception of Family: Toward aFunctional Definition of Family That Protects Children's Fundamental Human Rights, 41 COLUM. HUM. RTS.L. REV. 509, 515 (2010). For a broader discussion, see id. at 515''25.195. Simpson, supra note 163, at 667. The author concludes that:RThe value or harm in the institution of the Ti-moune would seem to depend upon the charac-ter of the adopting families. Some of these persons treat the children who come to live withthem in an exemplary manner, others get the maximum profit from their Ti-mounes andhandle them as if they were beasts of burden.Id.196. References to restav`ek are merged into a general discussion of the worst forms of child labor,which also includes sex exploitation and indentured work.U.S. DEP'TOF LABOR, 2008 FINDINGS ONTHE WORST FORMS OF CHILD LABOR'' HAITI (2009), available at http://www.unhcr.org/refworld/docid/
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 29 8-MAY-12 13:092012 / Owning Laura Silsby's Shame29UNICEF is concerned about situations in which timoun becomes childlabor exploitation, and the ways in which it may become child traffick-ing.197 The organization also notes that there are worse forms of labor towhich children can be trafficked, such as physically hazardous work, sexualwork, and illicit (drug courier) labor that may affect the development of achild, including her physical and mental integrity.198 The practical concernaround timoun is the lack of means to supervise whether a child's rights arebeing respected. UNICEF reports that each year approximately 2,000 chil-dren are trafficked to the Dominican Republic from Haiti, often with theapparent support of their parents.199 The Silsby case is an example of howthis can happen.4aba3edac.html. For another interpretation of restav`ek as an exploitative form of child labor, see Cam-paign Against Child Slavery in Haiti, BEYOND BORDERS, http://www.beyondborders.net/WhatWeDo/EndingChildSlavery.aspx (last visited Oct. 29, 2011); see also Marian Wright Edelman, Haiti's Restav`ekChildren: The Child Servitude Crisis, CHANGE.ORG (Mar. 29, 2011), http://humantrafficking.change.org/blog/view/haitis_restavk_children_the_child_servitude_crisis; Carmen Russell & Dane Liu, 20/20:Restav`eks: Child Slaves of Haiti (ABC television broadcast Jan. 15, 2010), available at http://www.pu-litzercenter.org/video/restaveks-child-slaves-haiti; JEAN CADET RESTAV`EK FOUND., Mission Statement,http://www.restav `ekfreedom.org/index.cfm?fuseaction=cms.page&id=1026 (last visited Oct. 29, 2011)(characterizing the restav`ek system as ''child slavery'' in the organization's mission statement).197. The intention of exploitation need not be of the parent, but of the smuggler or trafficker.UNICEF acknowledges that children in the developing world work at home or in family businesses, oroutside the home as apprentices, which may imply a commercial benefit or exposure to hazards. Thegreatest concern is over situations in which children lack a protective social or legal network as workersin exploitative conditions. MIKE DOTTRIDGE & LIZ STUART, UNICEF, END CHILD EXPLOITATION:CHILD LABOUR TODAY 26''27 (2005). To that effect, UNICEF defines child trafficking in the followingway:Child trafficking happens when a child is moved from one place to another'--within a coun-try or across a border'--into a situation in which they are exploited, and this exploitation cantake many different forms.The movement part of the trafficking 'event' accompanied by the action of someone whointends to exploit the child for profit is essential to the difference between child traffickingand migration into child labour. The movement away from home, local community, supportand safety mechanisms into an environment where the child is isolated and manipulated byothers greatly increases the child's vulnerability and makes child trafficking a particularlydespicable crime and a violation of their rights.Where legal migration channels are closed, difficult to take or not known to people who wantto migrate for work, then illegal migration, people smuggling and human trafficking aremore likely to happen. Keeping migration channels open and helping people to use them in aregular, safe and easy way is an important step in preventing illegal migration, smugglingand trafficking.Exploitation is the other essential part of child trafficking. Trafficking is always made up ofboth movement and (the intention of) exploitation. If there is only movement and no (intentof) exploitation, then this is not trafficking. If there is exploitation but no movement, thenthis is not trafficking either.JUNE KANE & HANS VAN DE GLIND, UNICEF, TRAINING MANUAL TO FIGHT TRAFFICKING IN CHIL-DREN FOR LABOUR, SEXUAL AND OTHER FORMS OF EXPLOITATION: UNDERSTANDING CHILD TRAFFICK-ING 16''17 (2010).198.DOTTRIDGE & STUART, supra note 197, at 26''27.R199.See UNICEF, At a Glance: Haiti - Background, http://www.unicef.org/infobycountry/haiti_2014.html (last visited Oct. 29, 2011).
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 30 8-MAY-12 13:0930Harvard Human Rights Journal / Vol. 25In studying timoun, Smucker and Murray find no evidence of ''literal''child slaves in Haiti, but do find cases in which restav`ek children are abusedas unpaid domestic workers and other cases in which parents might bedeceived and their children diverted into trafficking circles for exploitativework or sexual purposes.200 The authors insist on the need to use operation-ally precise language to differentiate a culturally sanctioned practice of fos-ter care or even smuggling where there might not be any abuse involved,from child abuse and child trafficking.201Timoun and other forms of placement outside the home are generally in-stigated by necessity.202 However, UNICEF indicates that poverty alonedoes not often trigger the movement of a child towards a possible exploita-tive work condition. The organization identifies several additional points ofrisk and vulnerability that decrease the capacity of parents to take care oftheir children, and which result in sending children away to work or chil-dren themselves moving away from home to find work. The organizationrefers to these factors as ''poverty plus'' and notes that they may include''individual, family, community or institutional-level risk'' factors.203 Fac-tors may include domestic violence, illness of parents (e.g., AIDS), war,community violence (e.g., gangs), lack of institutional support for educa-tion or health services, unemployment, and the breakdown of systems oflivelihood due to disasters (e.g., ecological disaster that ruins fishing orfarming communities).204 Such factors aggravate the conditions of povertythat may trigger a child's movement away from home towards possibleexploitation.UNICEF's examples for why a child may become a victim of traffickingdo not apply to all timoun or other cases of placement outside the home,either because there is no work exploitation or there is no cross bordertravel. But UNICEF's analysis is very useful when contemplating whytimoun in Haiti has survived into the 21st century as an option for child200.SMUCKER & MURRAY, supra note 149, at 5, 24. Specifically, Smucker and Murray foundR[N]o literal evidence of child enslavement, defined in terms of buying and selling children asprivate property; however, there is ample evidence of systematic child abuse in the recruit-ment and use of restav `ek children as domestic servants. Some reports angrily label thesearrangements as slavery. Those who describe the restav `ek child as a slave child are doubtlessdemonstrating human concern for the welfare of the child; however, such children are notliterally slaves. The Haitian restav `ek child can legally run away or be taken back by his or herparents without payment of ransom or manumission. The term slavery is perhaps useful as aninflammatory metaphor for purposes of advocacy, but it fails to capture the Haitian meaningof the word even when used as an epithet. When Haitians say the restav `ek child is like a tiesklav, they are using the word slave in a metaphorical sense, similar to calling a demandingforeman a ''slave driver'' in English. The restav `ek child is an abused child but not a slavechild. The concept of ''unpaid domestic servant'' is less dramatic but captures the realitymuch more accurately.Id. at 24.201.Id. at 5.202.Id. at 28.203.KANE & VAN DE GLIND, supra note 197, at 23.R204.Id. at 23''25 (listing various ''poverty plus'' factors).
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 31 8-MAY-12 13:092012 / Owning Laura Silsby's Shame31placement, when the risks of exploitation are known. Specific to Haiti, wemust ask how timoun continues to fill an indispensable social need for childplacement services in the face of cumulative histories of violent conflict,lack of institutional support for education, health and income, foreign in-tervention, and a growing youthful population in Haiti.205 Ultimately, theproblem is not the best efforts made by impoverished Haitian parents ortheir children to find work-placement arrangements, but the complex con-ditions of ''poverty plus'' that institutionalize timoun and other forms ofchild placement outside the home, as a means to secure basic housing, foodand education for children.Ultimately, timoun is a form of foster care, but never a permanent separa-tion of children from their parents. ICA, on the other hand, while alsomaking children vulnerable to exploitation, severs the relationship betweenchildren and their families and communities and disrupts the support net-works that poor families use to help themselves. Below, I tell a similar storyof disruption regarding foster care in the United States.205. A demographic article about Haiti states the following:A country earlier renowned for the beauty of its landscape, Haiti has faced fierce exploitationof natural resources by successive foreign occupations and predatory dictatorships. Ongoingpolitical instability has contributed to a sharp decline of agricultural productivity and wide-spread poverty. In addition, the impact of climate change is particularly salient in Haiti,exacerbated by deforestation and severe soil erosion throughout the country. The destructioncaused by the 2010 earthquake adds to that of major storms and hurricanes in 2004 and2008. These events had already caused huge infrastructural damages in other parts of Haitiand deeply affected the country's economy.BEATRICE DAUMERIE & KAREN HARDEE, POPULATION ACTION INT'L, THE EFFECTS OF A VERY YOUNGAGE STRUCTURE ON HAITI: COUNTRY CASE STUDY 2 (2010), available at http://www.populationaction.org/Publications/Report/The_Shape_of_Things_to_Come_Haiti/SOTC_Haiti.pdf.In 2004, youth gangs played a major role in the violent revolt that forced Jean-BertrandAristide, the first democratically elected president of Haiti since the dictatorship, into exile.After that, despite the presence of UN peacekeeping troops and an improved security situa-tion, state institutions remained fragile and armed violence was still widespread in some partsof the capital. Some have described it as a ''war'' of confrontations between rival gangs as wellas between gangs and the UN stabilization forces, with civilians as innocent targets. In Port-au-Prince, particularly in the slums, more than 30 different gangs were trying to controldifferent parts of the city, using kidnapping and drug trafficking as sources of revenue. . . .After 30 years of dictatorship, Haiti experienced three coups d' ´etat and fifteen changes ofgovernment in the eight years between 1986 and 1994. Since then, Haiti has witnessed asuccession of political crises, and as recently as spring 2008, hunger riots caused by the rise inglobal food prices led to the collapse of the government.Id. at 6''7.The median age of the population is 20 years, and almost 70 percent of Haiti's people areunder age 30. [. . .] In a 30-year historical analysis, the report found that countries with veryyoung and youthful age structures'--those in which 60 percent or more of the population isyounger than age 30'--are the most likely to face outbreaks of civil conflict and autocraticgovernance. While the relationship between age structure and instability is not one of simplecause and effect, demographics can play an important role in mitigating or exacerbating acountry's prospects for development and the well-being of its people.Id. at 2.
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 32 8-MAY-12 13:0932Harvard Human Rights Journal / Vol. 25IV. FOSTER CARE AS A DISRUPTION OF TRADITIONAL FORMS OF CHILDPLACEMENT IN THE UNITED STATESThe history of foster care in the United States, like the history of ICA, isthe history of an interventionist policy that overwhelmingly affects poorfamilies. Through the foster care system, the State is placed in a position to''know best'' how poor children should be raised away from their families.Like ICA, foster care has institutionalized early child separation from par-ents and families for generations. The history of foster care is rooted in abelief that people cannot be left to their own devices to design their ownfamilies. At one point, the foster care system became the means for transfer-ring poor children to rich families, until the civil rights movement endedthe practice. But the foster care system still devalues family integrity andtoo often unnecessarily separates children from their families. As is the casewith ICA, the U.S. approach is MonoHumanistic: one that excludes and dis-places the knowledge and discourse of poor families and fails to see childrenin the context of their family, community, and culture. The critical ques-tion here is how to balance the protection of children with family integrity.Part of the solution seems to lie in acknowledging agency exercised by poorfamilies who can find alternative solutions in their extended family andwithin their own cultural domains that are healthier for child development.This would take self-reflection, introspection, and a dismantling ofMonoHumanism.A. Traditional Forms of Child Placement in the United StatesPrivate forms of child placement'--like timoun'--were pervasive in theUnited States in the late nineteenth and early twentieth centuries.206 Her-man notes that ''[a]t the dawn of the twentieth century, many methods'--formal and informal, commercial and sentimental, deliberate and impul-sive'--existed to acquire children.''207 She mentions that ''foundlings (aban-doned infants), illegitimate children (born to unmarried parents), andorphans (most of whom were 'half' orphans with one living parent ratherthan 'true' orphans with none) continued to be placed in orphanages be-cause of poverty.''208 By 1910, there were over 1,000 orphanages in the206. Sokoloff states that the institutions of placing out were brought by the Puritans to the newcontinent, introducing concepts such as the almshouse and indenture as means of raising children.''These means of caring for dependent children, however, became inadequate to meet the need by thebeginning of the nineteenth century. The industrial revolution and massive immigration producednumbers of dependent children which overwhelmed the existing system.'' Sokoloff, supra note 79, at 18.R207.ELLEN HERMAN, KINSHIP BY DESIGN: A HISTORY OF ADOPTION IN THE MODERN UNITEDSTATES2 (2008). This section relies heavily on Herman's research. However, for a briefer work cover-ing the same history of adoption, see Sokoloff, supra note 79. For a more specific discussion of adoptionRacts in the early nineteenth century, see Chris Guthrie & Joanna L. Grossman, Adoption in the ProgressiveEra: Preserving, Creating, and Re-Creating Families, 43 AM. J. LEGAL HIST. 235 (1999).208.HERMAN, supra note 207, at 23.R
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 33 8-MAY-12 13:092012 / Owning Laura Silsby's Shame33United States, some of them housing over 1,000 children.209 In addition toorphanages, there were timoun-like practices of ''placing out'' children. Her-man describes these practices in the following way:''Placing out'' was the term that designated all noninstitutionalarrangements to care for dependent children. . . . Agencies paidfamilies to care for children in boarding homes, whereas in work-ing homes, children earned their keep. Traditional indentureswere still used in many states well into the twentieth century.These contracts secured children's services for a period of years inexchange for food, shelter, and basic education. . . . Althoughmany indentures amounted to apprenticeships, a study of 827indentures in Wisconsin between 1913 and 1917 suggests thatindenture was not an unusual means of securing children foradoption.210Most placing out arrangements were instigated by necessity ''to surviveeconomic hard times and family catastrophes, such as death, serious illness,or desertion, and to provide their children with practical job skills andentry into the labor market.''211 They were also meant to be temporary, butif they did lead to adoption, relationships with the biological families werenot closed. Despite the benefits of these placing out arrangements, as withtimoun, reports of child abuse and profit seeking schemes led to the condem-nation of certain practices, particularly ''baby farming'' (paid care centersfor infants primarily used by poor working mothers) and other boardingarrangements that sometimes provided unsanitary and neglectful care.212Leading up to the 1920s, Western liberal governments adopted a newapproach to governance based on rationalization and research (''a literal sci-ence of statecraft'') to address social problems.213''Design,'' or ''purposeful209.Id. at 22.210.Id. at 23. ''36 percent [of indentured children] were eventually adopted, and those childrenindentured at young ages were far more likely to become legal members of the families in which theywere placed. More than half of the adoptees had been indentured before age one.'' There were also (rare)''free homes'' which provided care without charge. Id. For further discussion of private contracts result-ing in adoption practices, see also Amanda C. Pustilnik, Private Ordering, Legal Ordering, and the Gettingof Children: A Counterhistory of Adoption Law, 20 YALE L. & POL'Y REV. 263 (2002).211.HERMAN, supra note 207, at 24. Herman reports that the ''[t]ypical reasons that mothersRoffered for needing placement included 'got to go work,' 'salary too small to keep house & care for themproperly,' and 'have no one to take care of children while I am working,'''id. at 25, or ''so to bridgeover this rough place in . . . life,''id. at 24.212.''Baby farming'' or the ''boarding of infants for money and their transfer and sale for profit''reflected ''informal child care networks of single mothers and other laboring women,'' such as ''unwedmothers, prostitutes, domestic servants, and destitute or deserted wives forced to work for wages.''''Baby farming'' was widely critiqued for being conducive to abusive conditions of child care driven byprofit. However, ''baby farming'' comprised the child care networks available to the poorest of women.Id. at 32''39.213.Id. at 9''10.
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 34 8-MAY-12 13:0934Harvard Human Rights Journal / Vol. 25social planning and management'' such as ''intelligent child rearing,'' be-came the ethos of Progressive and New Deal reformers and professionals.214By the 1930s, applying psychoanalytical research, social work was rede-fined as casework, and private and public agencies became fully involved in''how Americans raised their children.''215 Caseworkers (within the govern-ment or specialized agencies) claimed to minimize differences between theadoptee and adoptive parents to create families that were as ''natural'' aspossible.216 Regulation, interpretation, standardization, and naturalizationwere the key concepts behind this design that aimed to prevent, protect,instruct, and help the population against ''risk'' in creating families.217 Inthis cultural shift, adoptive families were seen as ''different, fragile andprone to difficulty,''218 and thus professionals were sought to help citizensmake a ''normal,''''natural,'' or ''ideal'' family.219 Adults seeking to take ina child through such public or private agencies underwent a process of in-quiry and education in the stages of application, home study, placement,and supervision.220''Matching'' became the technique by which caseworkers placed childreninto homes based on physical resemblance, religious likeness, racial same-ness, and emotional and purported intellectual fitness.221 However, as pro-fessionals sought to make ''natural'' families, they implicitly (andsometimes explicitly) sent the message that adoption and foster care werenot natural, and concluded by emphasizing racist or discriminatory percep-tions of who belonged where.222 In this process, adoption also ''departedfrom earlier methods of child transfer, sharing and exchange,''223 towardslong-term permanent family arrangements that were closed adoptionsrather than open.224214.Id. at 9''11.215.Id. at 87. ''Designing American kinship was tantamount to managing American communitiesand culture because 'the child is the bridge'--biologically and socially'--to the future.'''Id.''All Amer-ican families were involved in the awesome project of social progress and reconstruction, whether theyknew it or not.''Id.216.Id. at 121. ''Kinship by design promised that a combination of expanded state power, profes-sional oversight, psychological interpretation, and empirical research would lessen the dangers of adop-tion and make it more secure and authentic.''Id.217.See id. at 10''14.218.Id. at 285.219.Id. at 15.220.Id. at 108''09.221.See id. at 121''38.222.Id. at 15, 94''95.223.Id. at 14.224.Id. The difference between open and closed adoptions has been described in the followingterms:In some jurisdictions, in what is sometimes known as an ''open'' adoption, the naturalmother may select the adoptive parents for her child. In the case of a ''closed'' adoption, therelinquishing parent surrenders his or her rights to unknown parties.''Open'' adoptions havealso been described as adoptions in which the court supplements an order of adoption with aprovision directing that the adopted child have continuing contacts and visitation with mem-
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 35 8-MAY-12 13:092012 / Owning Laura Silsby's Shame35Design and matching were not without opposition due to ''the investiga-tions and delays that were trademarks of kinship by design.''225 Likewise,people seeking alternative family formation through adoption were com-fortable in accepting risk and difference, claiming that nurturing ratherthan sameness was the key to a successful adoption.226 Furthermore, blackmarkets, grey markets, and other profit-driven schemes for acquiring chil-dren that circumvented the standardization process, continued to existwithout abate.227 Ironically, commercial forms of adoption fueled reports ofchild abuse and trafficking that kept standardized governance of adoptionalive.228By the late 1950s, practices that circumvented standardization and criti-ques of matching as a discriminatory practice pushed government and pri-vate agencies to establish more flexible standards for child placement,particularly with regard to age, race, and disability.229 Leading into the1970s, there was a shift in adoption that saw ''difference'' rather than''sameness'' as ''natural'' in adoption.230 Until then, minority children wererarely placed through the system, and even actively excluded as too difficultto place.231Before the 1960s, black children in need of placement were adoptedwithin their communities through means similar to those described by Fon-seca as adoption Brazilian style.232 By the 1970s, the adoption of transracial,bers of his or her biological family; such adoptions have been specifically rejected by somecourts, in the absence of legislative authority thereof.2 AM. JUR. 2d Adoption § 2 (2004); see also Naomi Cahn, Perfect Substitutes or the Real Thing, 52 DUKEL.J. 1077, 1151 (''Only recently have states begun to recognize the validity and enforceability of open-adoption agreements.''). Sokoloff mentions that the 1917 Minnesota Act began the sealing of records, atfirst to protect the adoption procedure from scrutiny, and later, at the insistence of caseworkers toprotect the identity of the parties in consideration that many children placed for adoption were illegiti-mate, which carried a high negative social stigma. Not until after 1950, with the surge of activismagainst closed records, did open adoptions reemerge. Sokoloff, supra note 79, at 21''22, 24.R225.HERMAN,supra note 207, at 139.R226. This became a debate known as ''nature or nurture.''Id.227.Id. at 139''143.228.Id. at 139 (stating that the advantages of standardization were highlighted by baby-sellingscandals).229. Standardization never succeeded fully because of (1) too few agencies, (2) regulatory loopholesthat allowed parents to shop jurisdictions, (3) alternative market-based practices abounded, based alsoon a belief in privacy, and (4) the regulating professionals themselves began to doubt the value ofstandardization. Id. at 153; see generally id. at 147''53. Commercial operations of adoption thrived in theface of standardization. Id. at 222''27. The standard of adoptability of children was expanded acrossrace, age, and disability lines. Id. at 196''201. Eligibility standards for parents changed quickly after the1950s. Id. at 202''05.230.Id. at 246''52.231.See id. at 196''204.232. For example, Herman describes a practice of de facto informal adoption whereAfrican Americans . . . routinely took in the children of friends and relatives because ofdivorce, separation, desertion, illegitimacy, death, migration, and the fact that childlesscouples lacked the social standing that came only with children. . . . At midcentury MildredArnold of the USBC wrote that ''there are many Negro families who have 'adopted' childrenfor all intents and purposes but who have not taken any legal steps to accomplish this.''
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 36 8-MAY-12 13:0936Harvard Human Rights Journal / Vol. 25''special needs'' (children with disabilities), older children and intercountryadoptions became widely accepted. These adoptions directly challenged thedominance of the ideology behind ''matching.''233 Ironically, this periodcoincided with the rise of civil rights movements that made transracialadoption controversial, particularly those of black children into white fami-lies.234 Minority populations claimed that minority children should beplaced within their same social group to maintain their cultural heritageand integrity, including the skills to survive a racist society. In yet anotherinstance of irony, the transracial controversy within the United States,alongside adult preferences that aimed to circumvent standardization, led toa decline of adoption after 1972 across transracial lines and a spike in ICA(initially of non-black children).235 Herman concludes that by its own am-bitions of standardization ''kinship by design'' failed, but also revolution-ized the boundaries between public and private life by allowinggovernment interference into decisions ''previously considered beyond thelegitimate reach of state power.''236Bringing private behavior into the public light has increased a desire foroversight and protection against child abuse and exploitation. It has alsoreflected the imposition of a certain conception of family not nuancedenough to reflect the racial, ethnic, and socioeconomic diversity of familiesboth domestically and internationally. More concretely, it has resulted inClearly, African Americans responded to children in need. In large families where member-ship was fluid, distinctions between natural and adopted kin were not accentuated.''Id. at 231.233.Id. at 204''15, 230''46.234. Herman gives the following example:In the case of race, and especially blackness, the era of openness to difference that dawned inthe adoption world of the late 1960s coincided with a powerful force moving in the oppositedirection: a turn toward nationalism in the civil rights movement and an embrace of ''roots''that reaffirmed the naturalness of sameness and continuity of identity. In 1972 the NationalAssociation of Black Social Workers (NABSW) issued a strongly worded statement that took''a vehement stand against the placements of black children in white homes for any reason,''calling transracial adoption ''unnatural,''''artificial,''''unnecessary,'' and proof that AfricanAmericans continued to be assigned to ''chattel status'' . . . . It was, according to an NABSWposition paper, ''a form of genocide'' comparable to the slave trade.Id. at 249; see also Patricia K. Jennings, The Trouble with the Multiethnic Placement Act: An Empirical Lookat Transracial Adoption, 49 SOC. PERSP. 559 (2006). Likewise, the Indian Adoption Project (1958-1967),which placed Native American children into white families, simultaneously faced outrage from whiteracists and accusations as a genocidal policy. HERMAN, supra note 207, at 239''42.R235. Herman cites studies from 1947 that reveal that the ''success'' rate in adoptions in terms ofchild adjustment remained unchanged since the 1920s despite the major systemic overhaul. HERMAN,supra note 207, at 190''91.R236.Id. at 154.Measured against historical traditions that sheltered personal decisions from public interfer-ence and elevated idiosyncratic preferences over expert evaluations, kinship by design appearsas part of a profound intellectual and cultural revolution in private life. By moving childhoodand kinship into the public sphere, prying a significant measure of power away from parents,and transferring decisions previously considered beyond the legitimate reach of state power torepresentatives of government and allied helping professionals, kinship by design altered howchildren were acquired and families made.Id.
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 37 8-MAY-12 13:092012 / Owning Laura Silsby's Shame37the displacement of cultural traditions by new, supposedly more scientificschemes, to meet the needs of a certain narrow slice of the U.S. populace.And because this displacement is based on the rule of law, we fail to inter-rogate our assumptions while promoting a demagogy of equalitarianismand liberalism.237 We should, however, question whether children who aresubjected to this system of design are really better off. In other words, is''kinship by design'' better for children than nineteenth-century placingout, adoption Brazilian-style, timoun, or the placement practices of African-American communities in the United States prior to their incorporationinto placement by design? Are these placement systems simply culturalmanifestations, with more or less government intervention, that serve thesame purpose with no better results?238 We should also consider whetherthe Silsby case is an aberration or the inevitable consequence of our historyof displacing and ignoring forms of child rearing with what we have deter-mined to be scientific and legally sanctioned.The next section shows how international adoption is like U.S. domesticadoption in that both systems impose a unitary and plenary concept of fam-ily that fails to reflect and often disregards the cultural and socio-economicreality of families, sometimes resulting in the transfer of children frommarginalized populations to more affluent ''consumers,'' while failing torespect the cultures and traditions from which these children come. Bothsystems reflect an unstated theoretical justification for the disrespect weshow for the integrity of poor families as a society. In this context, it is notprimarily the West vs. East juxtaposition that is important, but rather, thepoor vs. rich juxtaposition. In other words, it is the exclusion and displace-ment of the knowledge and discourse of poor families and the failure to seechildren in the context of their birth family, community, and culture'--or aslightly broadened version of MonoHumanism'--that explains our failure torespect the integrity of poor families, not only abroad, but domestically inthe context of the U.S. foster care system.237.See, e.g., Elizabeth Kolsky, A Note on the Study of Indian Legal History, 23 LAW & HIST. REV.703, 704''05 (2005) (connecting the rule of law's discriminatory and exclusionary operation in colonialIndia to similar phenomena in contemporary liberal states and discussing the ''idea that different groupsof people can be legally differentiated and thereby granted greater and lesser legal privileges even by aliberal state founded on the rule of law''); Robert W. Gordon, Morton Horwitz and His Critics: A Conflictof Narratives, 37 TULSA L. REV. 915, 922 (2002) (countering the perspective that the rule of law is an''unqualified human good'' and ''a great western institution that limits the rulers as well as the ruled''with the opposing argument that ''[t]he formalist view of the rule of law . . . always conceals inequali-ties of wealth and power under a fa ¸cade of formal equality, and delegitimates attempts to remedy suchinequalities''); Cheryl I. Harris, Equal Treatment and the Reproduction of Inequality, 69 FORDHAM L. REV.1753, 1762 (2001) (stating that law in the United States ''indirectly structured racial identitiesthrough the 'rule of law' of the liberal polity where the values of neutrality and objectivity were en-shrined more broadly and racial inequality was rationalized and legitimated'').238. Herman notes that ''[t]he adoption research enterprise had been transformed since 1924. Out-comes had not.''HERMAN,supra note 207, at 189''90.R
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 38 8-MAY-12 13:0938Harvard Human Rights Journal / Vol. 25B. Disruptive Foster Care Policies in the United StatesFoster care in the United States is the system for temporary placement ofchildren. One major difference between the U.S. foster care system andtraditional forms of child placement is that foster care in the United Statesis a highly regulated, professionalized, and bureaucratized form of childplacement.239 Foster care includes ''all out-of-home placements for childrenwho,'' according to the state, ''cannot remain with their parents. Childrenmay be placed with nonrelative foster families, with relatives, in a therapeu-tic or treatment foster care home, or in some form of congregate care, suchas an institution or a group home.''240According to Jones, maltreatment is the principal reason that childrenenter U.S. foster care.241 Maltreatment is defined as a deliberate or inten-tional act by a caregiver that causes harm to a child.242 Harm may include239. The following description is helpful:When entering foster care, or the ''child welfare system,'' a child does not enter a singlesystem, but rather multiple systems that intersect and interact to create a safety net forchildren who cannot remain with their birth parents. State and local child welfare agencies,courts, private service providers, and public agencies that administer other government pro-grams (such as public assistance or welfare, mental health counseling, substance abuse treat-ment), and Medicaid all play critical roles in providing supports and services to children andfamilies involved with foster care. Indeed, families often find themselves juggling the re-quirements and paperwork of multiple systems.Child welfare agencies are central to the system, but their policies and practices vary signifi-cantly from state to state. . . . The organization of child welfare agencies also varies signifi-cantly across states. . . .In every state, the courts also play a significant role in child welfare cases, from the initialdecision to remove a child to the development of a permanency plan to the decision to returna child home or terminate parental rights and make the child available for adoption. . . . Eachparty involved in a foster care case'--the birth parents, the child, and the government'--isrepresented by a different attorney. . . . [T]he adversarial nature of legal advocacy can at timessharpen conflict between the various parties. Many jurisdictions rely on volunteer court ap-pointed special advocates (CASAs) to ensure that children in foster care have a voice in thelegal decision-making process. . . . Currently more than 900 CASA programs operate in 45states, and more than 250,000 children have been assigned CASAs.Private agencies, typically through contracts with public agencies, provide a significant pro-portion of foster care services to children and families. The use of private agencies to provideservices such as family-based foster care goes back to the very origins of child welfare in theUnited States. Some states, such as Kansas, have privatized nearly all of their foster careservices, whereas others rely on a mix of public and private service providers. . . .To assure the best outcomes for children, all of the agencies in the system must work to-gether. Each must rely on the others to provide the necessary information and resources. . . .But currently no overarching mechanism for governing the system or managing resourcesexists. Instead, most agencies have established either formal or informal cooperativeagreements.Bass et al., supra note 13, at 7''8.R240.Id. at 6. On the placement of children with kin, see Rob Geen, The Evolution of Kinship CarePolicy and Practice, 14 FUT. CHILD. 130 (2004).241. Jones provides a brief discussion of developmental problems associated with child ''maltreat-ment.'' Jones, supra note 14, at 34.R242. Centers for Disease Control and Prevention (''CDC'') defines maltreatment as ''[a]ny act orseries of acts of commission or omission by a parent or other caregiver that results in harm, potential for
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 39 8-MAY-12 13:092012 / Owning Laura Silsby's Shame39abuse (physical, sexual or psychological) or neglect (physical, emotional,medical, or educational neglect, or inadequate supervision or exposure toviolent environments).243 In 2009, neglect (not including medical neglect)represented 78.3 percent of the child maltreatment cases across 50 states,the District of Columbia, and Puerto Rico.244In the United States, conditions of poverty translate into an overrepresen-tation of children from poor families in the foster care population:Although most poor families do not abuse their children, poorchildren are more likely to enter the foster care system, in partbecause poverty is associated with a number of life challenges,such as economic instability and high-stress living environments,which increase the likelihood of involvement with the child wel-fare system. Poor families are also more likely to have contactwith individuals who are mandated by law to report child mal-treatment, so questionable parenting practices are more likely tobe discovered.245harm, or threat of harm to a child.''CTRS. FOR DISEASE CONTROL & PREVENTION, CHILD MALTREAT-MENT SURVEILLANCE: UNIFORM DEFINITIONS FOR PUBLIC HEALTH AND RECOMMENDED DATA ELE-MENTS, VERSION 1.0, at 11 (2008) (emphasis omitted). In this definition, commission refers to deliberateor intentional words or actions that have the consequence of causing harm to a child. Id. Omissions are''[t]he failure to provide for a child's basic physical, emotional, or educational needs or to protect a childfrom harm or potential harm.''Id. Caregiver is ''a person, or people, who at the time of the maltreatmentis in a permanent (primary caregiver) or temporary (substitute caregiver) custodial role. In a custodialrole, the person is responsible for care and control of the child and for the child's overall health andwelfare.''Id. at 12 (emphasis omitted).243.Harm is defined as:[a]ny acute disruption caused by the threatened or actual acts of commission or omission to achild's physical or emotional health (ISPCAN 2003). Disruptions can affect the child's physi-cal, cognitive, or emotional development.Threat of harm occurs when a parent or caregiver expresses an intention or gives signs orwarnings through the use of words, gestures, or weapons to communicate the likelihood ofinflicting harm to the child. Threat of harm can be explicit or implicit. Explicit threatswould include such acts as pointing a gun at the child or raising a hand as if to strike thechild. Implicit threats would include such acts as kicking holes in walls or breaking downdoors.Disruption of physical health includes, but is not exclusive to, physical injuries, avoidableillnesses, and inadequate nutrition.Id. at 12.244. 17.8 percent was the median for physical abuse, 9.5 percent was the median for sexual abuse,7.6 percent was the median for psychological maltreatment, and 2.4 percent was the median for medicalneglect; these percentages add up to more than 100 percent ''because a child may have suffered morethan one type of maltreatment.''U.S. DEP'TOF HEALTH & HUMAN SERVS., ADMIN. FOR CHILDREN &FAMILIES, CHILDREN'S BUREAU, CHILD MALTREATMENT2009, at 23 (2010), available at http://www.acf.hhs.gov/programs/cb/pubs/cm09/cm09.pdf#page=13. Neglect can exist alongside other forms ofmaltreatment. It is the principal form of maltreatment. Recurrence of child maltreatment is also morelikely to involve neglect rather than physical or sexual abuse. Bass et al., supra note 13, at 6.R245. Bass et al., supra note 13, at 14. In a context of poverty in the United States, parents face aRheightened ''multitude of complex and interrelated life challenges such as mental illness, unemploy-ment, substance abuse, and domestic violence.''Id. at 6, 14. On this issue, see also Twila L. Perry, TheTransracial Adoption Controversy: An Analysis of Discourse and Subordination, 21 N.Y.U. REV. L. & SOC.CHANGE 33, 56 n.97 (1993).
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 40 8-MAY-12 13:0940Harvard Human Rights Journal / Vol. 25Furthermore, poverty and poverty-related factors result in ''children ofcolor'' being overrepresented in the foster care population.246 In 2003, Afri-can-American, American-Indian/Native Alaskan, and Hispanic familiescomposed 55% of the foster care population, even though these minoritiesrepresented only 33% of the national population.247 Data from 2006 showsthat minority children continue to be overrepresented in the child welfaresystem.248 And research shows that a mother's income also has a significantimpact on the speed of reunification with her children; the greater her in-come (including welfare assistance), the greater the speed ofreunification.249Like elsewhere in the world where there is poverty, the moment when achild leaves his or her family for placement through the U.S. foster caresystem seems to be determined by ''poverty plus'' factors.250 In the mid-1980s, the foster care population in the U.S. spiked due to an aggravationin the conditions of poverty:The crack epidemic, homelessness, the rapidly growing incarcera-tion rate, and HIV/AIDS proved devastating for poor familiesand communities. In turn, families contending with multipleproblems were unable to appropriately care for their children,and the number of children entering foster care rose. In 1980246. Bass et al., supra note 13, at 14. For more on the relationship between poverty and racial over-Rrepresentation in the child welfare system, see also SUSAN CHIBNALL ET AL., CHILDREN OF COLOR INCHILD WELFARE: PERSPECTIVES FROM THE CHILD WELFARE COMMUNITY 19''24 (2003), available athttp://www.acf.hhs.gov/programs/opre/abuse_neglect/respon_coc/index.html.247. In 2003, African-American children were reported as being overrepresented in foster care atnearly three times their numbers in the population, with some states as high as five times the popula-tion rate. Bass et al., supra note 13, at 14. American-Indian children were represented at nearly doubleRtheir rate in the general population, and Latino children slightly underrepresented, ''but the number ofLatino children in foster care has nearly doubled over the last decade.''Id. In 2006, the disproportionaterepresentation of children from the same minorities continued.U.S. DEP'TOF HEALTH & HUMANSERVS., ADMIN. FOR CHILDREN & FAMILIES, CHILDREN'S BUREAU, CHILD WELFARE OUTCOMES:2003''2006, at ii, 5''8, available at www.acf.hhs.gov/programs/cb/pubs/cwo03-06.248. In 2006, overrepresentation of African-American children was one and one-half times greaterthan their numbers in the population of 31 states, with this percentage being two and one-half timesgreater in five states (Iowa, Minnesota, North Dakota, Utah, and Wyoming). U.S. DEP'TOF HEALTH &HUMAN SERVS., supra note 247, at 7''8. In seven states (Connecticut, Massachusetts, Minnesota, NewRHampshire, North Dakota, South Dakota, and Utah), Hispanic children were overrepresented by oneand one-half times their numbers in the child population.Id.In 16 States, the percentage of American Indian/Alaska Native child victims was at least oneand one-half times greater than the percentage of these children in the State's population. . . .In 6 of these 16 States, the percentage of American Indian/Alaska Native child victims wasmore than three times greater than the percentage of these children in the State's population(Idaho, Minnesota, Nebraska, Oregon, South Dakota, and Washington).Id. at ii, 8. In no states were white children overrepresented.Id. at 12.249.E.g., Kathleen Wells & Shenyang Guo, Reunification of Foster Children Before and After WelfareReform, 78 SOC. SERV. REV. 74, 90''91 (2004).250.Cf. supra notes 203''204 and accompanying text (discussing how UNICEF articulates theRrelationship between ''poverty plus'' factors and child placement).
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 41 8-MAY-12 13:092012 / Owning Laura Silsby's Shame41approximately 300,000 children were in foster care; by 1998 thatnumber had climbed to an unprecedented 568,000.251Swann and Sylvester likewise attribute the spike in the foster carecaseload from 1985 to 2000 to similar factors, emphasizing that ''increasesin female incarcerations and reductions in cash welfare benefits played dom-inant roles in explaining the growth in foster care caseloads over this pe-riod'' and ''highlight the need for child welfare policies designedspecifically for the children of incarcerated parents and parents who are fac-ing less generous welfare programs.''252 Given the strong associations be-tween foster care populations, race, poverty, and poverty-related issues,Jennings suggests that any welfare policy that aims to decrease the severingof ties between mothers and children and also increase placement options infamilies ''must be coupled with economic strategies that aim to strengthenlow-income families of all races.''253251. Bass et al., supra note 13, at 8. By 2001, 540,000 children were in foster care at any one time.RId. at 6. For a discussion of figures from 2006, see U.S. DEP'TOF HEALTH & HUMAN SERVS., supra note247, at ii.R252. Christopher A. Swann & Michelle Sheran Sylvester, The Foster Care Crisis: What CausedCaseloads to Grow?, 43 DEMOGRAPHY 309, 309 (2006).[O]ur findings clearly identify a strong association between female incarcerations and fostercare caseloads. This result is important because, although child welfare administrators areaware of increases in the number of children of incarcerated parents needing out-of-homeplacement, few have specific policies for dealing with the special needs of this growing cohortof foster children. It is likely that much of the growth in incarcerations is due to the 1986Anti-Drug Abuse Act, which imposed mandatory minimum sentences and shifted sentencingpower from federal judges to prosecutors. Following this legislation, the number of womenincarcerated for drug offenses rose by 888% between 1986 and 1996, compared with a 129%increase in non-drug-related offenses during the same. Moreover, the average imposed prisonterm for those convicted of a drug-related offense increased from 62 months in 1986 to 74months in 1999, and actual time served increased from 30 months to 66 months over thesame period. . . .Turning to the role of welfare policy, consistent with previous literature, our results suggestthat AFDC/TANF benefit levels are significantly associated with foster care caseloads. Lowerwelfare benefit levels may increase foster care caseloads for three reasons. First, to the extentthat recipients are not working, lower welfare benefits decrease family income and increasethe likelihood that children are maltreated and/or reported to child welfare officials. Second,lower welfare payments may induce relative caregivers to become formally involved with thefoster care system in order to qualify for foster care maintenance payments. Finally, foster caremay be a direct substitute for welfare. There is evidence of substantial movement from theAFDC/TANF program to out-of-home care. Using data from California, Illinois, and NorthCarolina, Goerge found that the majority (60%) of entrants into foster care come from AFDC.Similarly, Bitler, Gelbach, and Hoynes found that welfare reform is associated with a largeincrease in the probability that black children live in households with neither parent present,and Johnson and Waldfogel showed that children with incarcerated mothers are more likelyto be in foster care if their mothers received public assistance prior to being incarcerated.Id. at 329 (citations omitted).253. Jennings, supra note 234, at 578. Jennings observes, ''advocates and opponents alike down-Rplayed the way that race intersects with gender and class to shape dominant adoption policies andpractices.''Id. at 563. She also suggests that where transracial adoption is the best option, adoptionpolicy must include educational strategies to overcome racial privilege. See id. at 578.
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 42 8-MAY-12 13:0942Harvard Human Rights Journal / Vol. 25Unfortunately, this is not the approach the U.S. foster care system takes.On the contrary, the Adoption and Safe Families Act (''ASFA'') restrictspoor people's'--and in particular African Americans''--choices over thestructure and composition of their families.254 ASFA weakens the require-ment that child services agencies make ''reasonable efforts'' to reunify fami-lies by providing exceptions to the requirement of such efforts, speeding upthe time frame for the termination of parental rights, and providing statesfinancial incentives to terminate parental rights in the process of freeingchildren for adoption.255More specifically, states must make ''reasonable efforts'' to provide birthparents with the services and supports they need to regain custody of theirchildren.''256 But if a child is in foster care for ''15 out of the previous 22months, states are to recommend that parental rights be terminated and thechild be made available for adoption.''257 While a caseworker may waivetermination if parents are making progress towards reunification or if thereare alternative placement options in the interests of the child that do notrequire termination of parental rights,258 the typically inadequate familypreservation services provided to poor families of color make the exercise ofthis waiver not nearly frequent enough.259Moreover, as I have written elsewhere,as the norm for child welfare service agencies is to provide inade-quate family preservation and reunification services, so-calledconcurrent permanency planning, in which children are placedsimultaneously on an adoption track and a reunification trackvery early in the proceedings, is likely to serve as a fast track toadoption of black children.260In a prescient statement that was meant to apply to ASFA in the context ofdomestic adoption, but could also apply to Haiti in the context of in-tercountry adoption, two well-known family law scholars have found,''[t]here is currently too much state disruption and supervision of poor mi-nority families. Any innovations . . . should be aimed at minimizing coer-254.See Christina White, Federally Mandated Destruction of the Black Family: The Adoption and SafeFamilies Act, 1 Nw. J.L. & SOC. POL'Y 303 (2006) (arguing that ASFA oppresses and devalues theautonomy of black families).255. King, supra note 15, at 612; see alsoJUDITH S. MODELL, A SEALED AND SECRET KINSHIP: THERCULTURE OF POLICIES AND PRACTICES IN AMERICAN ADOPTION 76 (2002) (stating that ASFA ''trans-forms adoption . . . into a child-rescuing operation'').256. In the exceptional cases where reunification is not advised, the goal becomes to place the childthrough adoption or to assign a legal guardian. Bass et al., supra note 13, at 6.R257.Id. at 7.258.Id.259.See King, supra note 15, at 612''13; MODELL, supra note 255, at 79, 96 (noting the class andRracial biases implicit in ASFA and citing the financial costs of ''rehabilitating collapsing birth families''as a basis for ASFA's emphasis on adoptions).260.Id. (citations and internal quotation marks omitted).
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 43 8-MAY-12 13:092012 / Owning Laura Silsby's Shame43cive intervention in families and at family preservation.''261 Bass et al.conclude that while ''foster care is a necessary lifeline that undoubtedlysaves thousands of maltreated children each year,'' it is also true that ''plac-ing children into state custody is an extremely invasive governmental inter-vention into family life.''262 These authors justify government interventiononly if the behavior is guided by a policy of ''do no harm.''263The reality is, however, that children occasionally encounter maltreat-ment in foster care families.264 And many foster children are vulnerable to''poor developmental outcomes'' due to (a) genetic factors, prenatal sub-stance exposure, and other physical health issues, (b) trauma or maltreat-ment experienced prior to foster care entry, and/or (c) placement instabilityexperience in foster care.265 While the first two reasons may justify a child'sentrance into foster care in the first place, displacement and associated in-stability are problems caused by the child welfare system.Multiple displacements cause developmental problems in children, pri-marily ''disordered attachment,''266 and are also associated with ''child be-havioral and emotional problems, such as aggression, coping difficulties,poor home adjustment, and low self-concept.''267 Jones points out that mostchildren in foster care will experience only one to two placements, but one-third to two-thirds of foster care placements will be disrupted within thefirst two years.268 Also, the longer a child remains in foster care, the greater261.Id.; see also MODELL, supra note 255, at 96 (stating that ASFA ''draws the state further intoRintervention in parent-child relationships'').262. Bass et al., supra note 13, at 9.R263.Id.When the state assumes custody of a child, in effect the government is stating that it can do abetter job of protecting and providing for this child than his or her birth parents can. Whenchildren are placed in foster care only to suffer additional harm, it undermines the rationalefor government intervention and is an egregious violation of the public trust. For this reason,as Badeau writes in this journal issue, the first principle of the child welfare system should beto do no harm.Id.264. Jones notes that:[R]esearch on foster care suggests that a significant proportion of foster families have parent-ing difficulties, which may hinder their capacity to provide stable experiences for foster chil-dren. Although the experience is not commonplace, foster children are also maltreated bytheir foster parents. The association between problematic parenting behaviors and the social-emotional maladjustment of foster children has been documented in several studies.Jones, supra note 14, at 40.R265.Id. at 36''38.266.Id. at 38.Attachment disorders, which lead to the most problematic outcomes for children, includethose in which children have disrupted attachments to their caregivers, display overly vigi-lant or overly compliant behaviors, show indiscriminate connection to every adult, or do notdemonstrate attachment behaviors to any adult. Children with insecure, ''disordered'' or ''dis-organized'' attachments may also have many other adverse outcomes that persist throughoutchildhood, such as poor peer relationships, behavioral problems, or other mental healthdifficulties.Id. at 34.267.Id. at 39.268.Id. at 38.
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 44 8-MAY-12 13:0944Harvard Human Rights Journal / Vol. 25the likelihood that she will experience multiple placements.269 In 2006, themajority of children (approximately 68%) who had been in foster care for atleast 24 months had experienced more than two placements.270 It is worthpausing for a moment to consider why we disrupt and then fail to supportpoor families. Why are we systematically failing to respect the care-givingpatterns of traditionally marginalized communities if we provide such apoor substitute?In essence, the U.S. foster care system intervenes in the lives of poorfamilies and families of color much the same way that ICA intervenes in thelives of families in other countries around the globe. The analogical similar-ities are undeniable. Both systems intervene in family structures in waysthat are painful, catastrophic and destabilizing for individual families andcommunities. And in both systems, children often suffer for the satisfactionof other interests.V. DISCUSSION AND IMPLICATIONSAs discussed above, commentators generally accept that poor families,both in the context of intercountry adoption and the U.S. foster care sys-tem, are more likely to be involved in these systems, and, thus, are morelikely to be disadvantaged by them.271 My intent here is not to re-statewhat has been said before, but to offer three important contributions to theliterature. First, I seek to focus on a gap in the existing literature by offer-ing a clear theoretical conception of the genesis for this disregard of poorfamilies. This theory I have previously described as MonoHumanism.272 It isthis unstated theoretical justification for the disrespect we show for poorfamilies as a society that severely hinders the extent to which we approachpoor families on their own terms.The second broad contribution is showing how this theoretical justifica-tion has become a narrative that determines our perception of and interac-tion with poor families both domestically and abroad. To that end, theSilsby case and the discussion of the U.S. foster care system are key exam-ples highlighting the theoretical justification.273269. The average time a child stays in foster care is 33 months, with variations on both ends: 38percent of the foster care children who exited in 2001 stayed 11 months or less in the system, while 32percent had been in the system for 3 years or more. Bass et al., supra note 13, at 7. Jones also notes thatRdisplacement or disruption rates are related, besides time in foster care, to ''the age of the foster child,and the functioning of the foster child (for example, mental health).'' Jones, supra note 14, at 38.R270.U.S. DEP'TOF HEALTH & HUMAN SERVS, supra note 247, at 29.R271.See Bhahba, supra note 10, at 185 (describing poverty as a principal reason that parents relin-Rquish their children for international adoption); Bass et al., supra note 13, at 5''6, 14 (citing poverty asRthe main cause of children being placed into foster care).272.See generally King, supra note 20.R273. For the discussion of the Silsby case, see supra Introduction, Part I. For the discussion of U.S.foster care, see supra Part IV.
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 45 8-MAY-12 13:092012 / Owning Laura Silsby's Shame45The third broad contribution is to show how customary child placementschemes have not only been replaced by structures set in motion byMonoHumanism, but may actually provide a better safeguard for the integ-rity of poor families than systems which may contain inherent unfairnessand cultural biases.274 The discussion of timoun, so-called kinship by designand analogous child placement systems by poor families in the UnitedStates demonstrates the displacement.275 These three contributions convenein the ultimate goal of this Article, which is to highlight the fact that as asociety, we fail to respect the integrity of poor families to such a degree thatit is currently unrealistic to expect the United States to create structuresthat protect these families.For Westerners who have financial privilege, the fundamental question iswhether we can meet families who are not like us, on their own terms. As ageneral matter this means we should do more to prioritize community andfamily assistance abroad and at home.276 We need to approach children as ifthey are our own children and do everything we can (as we would) if some-one tried to take them away from us. We must admit that to remove chil-dren from their families is always second best if the families have the meansand the will to take care of them, and not accept that we do not have theresources to provide families with such means'--particularly when we arefunding structures to make separation of children and families possible. Tosupport the integrity of poor families, our social structures must change,and we must be honest about the classism, racism, sexism, ethnocentrism,and basic fundamental unfairness that permeates our international and do-mestic child care systems. In adopting children, we should lose the ''rescuenarratives'' that I have discussed here and elsewhere. Only when we do sowill we be able to evaluate honestly whether there are alternatives to inter-national adoption and domestic foster care that support family integrity. Indoing so, we must ask whether we need to forgo intervention and focus onbottom-up community organizing, whether there is sufficient transparencyin our international adoption processes, and whether we are truly promot-ing the best interests of poor children.277 We have a moral imperative tounderstand the theory, its manifestation, and the family formations that webreak up by our failure to turn a critical eye back towards U.S. society andpolicies.274.See Cardarello, supra note 191, at 146 (discussing child placement customs that address theRcircumstances of the Brazilian poor).275.See supra Part III (discussing timoun); supra Part IV.A (discussing kinship by design and cus-tomary child placement practices in the United States).276.See Smolin, supra note 12, at 127 (discussing the need for the intercountry adoption system toRprovide birth families with aid that can preserve their families); King, supra note 15, at 612''14 (dis-Rcussing the need for the U.S. child welfare system to promote family reunification and preservation).277.See Smolin, supra note 12, at 175 (stating that the intercountry adoption system lacks trans-Rparency and accountability); Smolin, supra note 15, at 27 (challenging the perception that internationalRadoption is ''an inherent and essential good that always saves and never harms . . . children'').
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 46 8-MAY-12 13:0946Harvard Human Rights Journal / Vol. 25VI. CONCLUSIONA collaborative report by Haitian, U.S., and international organizationsshowed that eight months after the earthquake in Haiti, 1.3 million Hai-tians continued to live in makeshift camps in living conditions defyingbasic human rights to water, food, health, physical integrity, safety, hous-ing, education, self-sufficiency, and political participation.278 In October2010, an outbreak of cholera began to claim lives in Haiti, bringing to thepublic eye once again the failure of promises to reconstruct and improve thequality of life in that country.279 Yet, the aid that is often offered is theextraction of individual Haitian children through adoption, resulting in theseverance of familial ties. In this situation, ICA disrupts traditional forms ofchild placement that would otherwise maintain familial and cultural ties.And while the answer is not necessarily to outlaw ICA, it may instead be tomanage ICA in a way that minimizes the disruption of family unity. Oneway to do this is to first consider whether it is possible to support the childin a domestic placement, preferably with her own family.The same is true for child placement in the United States. Analyzing''kinship by design'' from a post-colonial perspective, one can conclude thatthe Western standardization and regulation of foster care and adoption is aunique cultural manifestation of a U.S. regulatory stance. Compared to so-cial practices of placing out that are pervasive around the developing world,government intervention into family arrangements may even seem unnatu-ral or unwarranted. In terms of law and economics, we may also describe''kinship by design'' as ''inefficient'' compared to how people in poor coun-tries solve child placement problems by themselves (at lesser cost to them-selves and society). Nevertheless, despite its shortcomings, there is acontinued domestic and international push to design more ''efficient'' regu-latory systems to place children who need placement, satisfy adults whowant children, and regulate the undesired consequences of exploitation andabuse and Otherness in ways that reflect Western preferences.In the end, recognizing society's failure to respect the integrity of poorfamilies presents a first step in seeking a solution. With this understanding,278.THE LAMP FOR HAITI FOUND. ET AL., ''WE'VE BEEN FORGOTTEN'': CONDITIONS IN HAITI'SDISPLACEMENT CAMPS EIGHT MONTHS AFTER THE EARTHQUAKE 2 (2010), http://ijdh.org/wordpress/wp-content/uploads/2010/09/IDP-Report-09.23.10-compressed.pdf.279.Haiti Cholera Outbreak Spreads: Aid Groups Fighting to Keep Cholera from Reaching Camps of HaitiEarthquake Survivors in Port-au-Prince, GUARDIAN (U.K.) (Oct. 24, 2010), http://www.guardian.co.uk/world/2010/oct/24/haiti-cholera-outbreak-spreads. Scientists posit that the cholera outbreak has less todo with sanitation conditions post earthquake, and more to do with the rising sea temperatures, in-creased water salinity, and an algae bloom in Haiti that provides optimum conditions for cholera bacte-ria to thrive. See Richard Knox, Earthquake Not to Blame for Cholera Outbreak in Haiti, NAT'L PUB.RADIO, Oct. 26, 2010, http://www.npr.org/blogs/health/2010/10/26/130832317/earthquake-had-noth-ing-to-do-with-cholera-outbreak-haiti. However, alternative explanations are also offered.See JonathanM. Katz, UN Probes Base as Source of Haiti Cholera Outbreak, SEATTLE TIMES (Oct. 27, 2010), http://seattletimes.nwsource.com/html/health/2013276274_apcbhaitidiseaseoutbreak.html.
\\jciprod01\productn\H\HLH\25-1\HLH102.txt unknown Seq: 47 8-MAY-12 13:092012 / Owning Laura Silsby's Shame47the next time we see an international adoption scandal, hear about themany children in the U.S. foster care system, or otherwise learn of pieces ofa poor family puzzle that have been broken apart, the question is whetherwe will step back and ask ourselves: What would we do if these ''other''families were exactly the same as us? What if they weren't poor? Whatwould we do then?
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