International Laws
There are three main international agreements that concern international adoption.
United Nations Convention on the Rights of the Child (UNCRC) 20 November 1989
Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child prostitution and Child pornography (OPSC) 25 May 2000
Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Adoption Convention) 29 May 1993
The first two, UNCRC and OPSC are concerned broadly with children’s rights, but both contain sections that directly address intercountry adoption and rights of children who have been adopted. The Hague Adoption Convention is focused only on intercountry adoptions and lays out standards and procedures that countries who are parties must follow.
Something that is important to understand with international agreements is that there are two two significant stages for countries to effectively implement them. The first is signing the agreement, which signifies agreement with its spirit and aims. The second step is ratification which means formally incorporating the terms of the agreement into the local laws of the member country. This would usually mean that the country would need to make changes to existing laws or introduce new laws so that they are compliant with the agreement. Without ratification, membership to the agreement has no real effect in practical terms.
Let’s look at Korea’s history of implementation of the three agreements concerning intercountry adoption.
United Nations Convention on the Rights of the Child
Article 21 The Adoption Article
South Korea signed the UNCRC on 25 September 1990 and ratified it on 20 November 1991. Along with the ratification, South Korea also issued a reservation, indicating that they did not agree to be bound by two articles of the convention. Relevant to intercountry adoption is Article 21 (a) which reads:
States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall: (a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child's status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary;
I have highlighted the parts that Korea could not comply with because there was no legal or institutional infrastructure to do so. Hence why the country declared itself exempt.
The term “competent authority” is mentioned in the UNCRC a lot. I found this brief description in the Implementation Handbook for the UNCRC.
“Competent authorities” covers the judicial and professional authorities charged with vetting the viability of the placement in terms of the best interests of the child, and with ensuring that proper consents have been obtained and all relevant information considered. Thus, both trained social workers and adjudicators should be involved in the process.
Again, the highlighted parts are practices and norms that Korea was not observing and still does not to this day.
Intercountry adoptions in Korea have been handled entirely by private organisations - the four agencies. Any tasks related to determining adoptability, obtaining consents and determining best interests of the child have been left up to workers at these private agencies. External assessments by professional social workers or people qualified to make decisions about peoples’ rights (like judges and ministerial decision makers) were never consulted. This means that there were no ethical or professional standards in place and is how Korea’s adoption industry is now riddled with allegations of fraud and illegality.
The idea of qualified and impartial people handling adoptions runs counter to the fundamental motivation behind adoptions from Korea - moving children out quickly to both eliminate the cost of caring for them and to make a small profit. Any professional oversight would have stymied this system. So it is easy to see why Korea hesitated and ultimately excused themselves from undertaking reforms to their adoption practices.
Optional Protocol to the Convention on the Rights of the Child on the Sale of Children
Article 3 of the OPSC requires member nations to make domestic laws in their criminal codes for conduct that contravenes international law on intercountry adoption.
Article 3(1)(a)(ii) requires nations to create a criminal penalty for “Improperly inducing consent, as an intermediary, for the adoption of a child in violation of applicable international legal instruments on adoption.”
This means that member nations must create a law that criminalises the acts of coercion, fraud or deception - lying to and persuading birth parents to give up their children. This is behaviour that we know was rampant in Korean overseas adoptions.
South Korea has signed and ratified the OPSC but made a stark declaration about Article 3(1)(a)(ii). Korea indirectly exempted itself by saying that Article 3(1)(a)(ii) only applies to countries who have ratified the Hague Adoption Convention. Korea, of course, has NOT ratified the Hague Adoption Convention.
What is the effect of this declaration and indirect exemption?
If Korea were to incorporate this into their criminal code then many staff at Korea’s adoptions agencies as well as doctors and nurses and others who were involved in coercing birth parents into relinquishing their babies would be liable for criminal prosecution. Proving this would be difficult in many cases and the statute of limitations in Korea is short. But the fact that Korea does not want to be bound by this requirement indicates that they are fully aware that “improperly inducing consent” was an integral element in many intercountry adoptions from their country and furthermore that they tacitly approve of it and do not wish to punish the conduct.
Hague Adoption Convention
The Hague Adoption Convention is a more wide reaching agreement that lays out in greater detail, the standards and requirements that member states must follow when carrying out intercountry adoptions. The Hague Adoption Convention is designed to protect the safety and rights of children and makes the best interests of the child paramount.
Korea, as one of the world’s major sending countries, was consulted for the drafting of the Convention. They signed the Hague Adoption Convention in May 2013 with a promise to ratify it within 5 years. But, as yet, Korea is yet to ratify the Convention. They are anticipated to do so in July 2025 with the enforcement of the Special Act on International Adoptions (국제입양에 관한 법률) No. 19553 (법률 제19553호)
Korea’s historical hesitation to ratify the Convention perhaps demonstrates a stubbornness to change the adoption industry that up to that point had “worked”. Or maybe it seemed like too hard of a task to upend and dismantle the system that was so entrenched as part of Korea’s welfare program.
In anticipation of Korea’s ratification of the Convention which will occur in July 2025, the country has started implementing legislative and organisational changes that would put it in line with the Hague Adoption Convention. Such changes have been in the works for almost 2 decades.
