The ‘Soft-Referral’ Ban for International Adoptions Hurts Special Needs Children

When Josh* and his wife decided to adopt an orphan from China in 2010, they knew their limits. They felt they could adopt a child with some minor disabilities, but they didn’t think they could handle one who was blind. Then Josh remembers looking at an email from their adoption agency at work one day and finding a picture and description of a boy with severe visual impairment. “As soon as I opened up this photo, I knew that he was the one we wanted,” Josh told me.

Three years later, that little boy is a part of their family. He has had a number of surgeries to help his vision. Things that come easily for other children are difficult for him, but Josh and his wife have no regrets. Maybe it sounds superficial that these parents made such an important choice on the basis of a picture and a story. In his defense, Josh says: “People, in general, make decisions when it comes to family, love, and connection on an emotive basis. There is nothing wrong with that.” 

But that’s not the view of the U.S. State Department, which late last year decided that agencies should no longer be able to offer “soft referrals” to families. This means that until families have completed their home studies and children have been deemed officially available for adoption, no family can receive information about or pictures of any specific child. The problem is that seeing a picture and hearing a child’s story is often the very thing that motivates a family to begin to pursue the lengthy and expensive process of international adoption.

In November, the National Council for Adoption, which represents more than 100 adoption agencies, filed suit against the State Department, arguing that the ban is illegal because they the agency didn’t follow the federally-mandated “notice and comment” process. Moreover, they noted that the policy has had the unfortunate effect of significantly reducing the number of children with special needs who can be adopted by American families. International adoption reached an all-time low last year, but it is special-needs kids who need access to the kind of medical treatment available in the U.S., who, without the intervention of American families, will languish in foreign orphanages. Earlier this year, the NCFA filed for summary judgment.

But what motivated this policy change in the first place? Lawyers for the State Department claim that this is not a new policy so much as a reinterpretation of an older policy, which was not in the “best interests of the child,” as defined by the Hague Adoption Convention. Policymakers seem to be concerned that children are being trafficked and that agencies’ use of these children’s pictures and stories is somehow going to exacerbate the problem.

Grinnell College economists Mark Montgomery and Irene Powell, authors of a recent book called Saving International Adoption, explained in an email that trafficking fears are overblown and that “the soft referral ban is another example of adoption policy-makers viewing sweeping reductions in adoption as the solution to relatively minor problems in the process.”

In their research, Mr. Montgomery and Ms. Powell found little evidence of trafficking, but they did find that bureaucrats in countries like Guatemala, South Korea, and Russia are trying to protect their nations’ images by limiting international adoption. As one former UNICEF official explained in a 2011 documentary on Guatemala: “I am very proud that there is an adoption law and that our image as being the number one exporter of children has changed. Now, our children have dignity. Guatemala has dignity.” 

His point was not that the situation for abandoned children in Guatemala has changed—particularly for special needs children or indigenous children who are among the least likely to be adopted and most likely to spend the rest of their lives in orphanages—but that the country’s reputation doesn’t suffer as much. 

This idea that children belong in their home country—no matter how dire the circumstances—has taken hold in our own State Department as well. Trish Maskiew, the current chief of the Adoption Division of the Office of Children’s Issues, has called international adoption a “profoundly problematic institution.” It is hardly surprising that she would support efforts like the ban on soft referrals that make it harder to undertake. 

Bureaucrats both at home and abroad regularly talk about the importance of raising children “in their birth culture.” As one Rwandan official quoted in Montgomery and Powell’s book explained: “We want children to remain here in Rwanda because we want them to be Rwandan. To stay in the Rwandan culture and learn Rwandan values.” 

International adoption is now seen by some experts as another form of “cultural imperialism,” in which Westerners are taking children who are a “natural resource” from their countries of origin and raising them here. As Mr. Montgomery and Ms. Powell note, "much of the criticism of international adoption, rather than being motivated by what is in the best interest of the child, is actually motivated by national pride, national interest or national resentment over past injustices."

But real children’s lives are at stake. As Josh said: “The contention that it would have been better for my son to remain in Chinese environment even if he had been blind and malnourished with no one to love him is monstrous.” 

*First name used to protect the privacy of their son.

Naomi Schaefer Riley is a senior fellow at the Independent Women’s Forum and a resident fellow at the American Enterprise Institute.