Abstract

Excerpted From: Diamonté Chamberlain, International Adoptions and Overlooked Abuse: Hawai'i's Role in Marshallese Adoptions, 46 University of Hawaii Law Review 209 (Winter 2023) (453 Footnotes) (Full Document)

A Hawai'i family law attorney came under fire in 2019 when it was discovered that she had been facilitating Marshallese baby selling in Hawai'i since at least 2017. The scheme involved flying pregnant, soon-to-be mothers from the Republic of the Marshall Islands (“RMI”) to Hawai'i where they would give birth and almost immediately relinquish their parental rights. The attorney worked with a local woman who would care for the children until the attorney arranged placement with high-paying adoptive parents on the contiguous United States. Many of the adoptive parents were on long domestic waitlists until suddenly, the process was expedited by the Hawai'i attorney. Often, the adoptive parents were flown to Hawai'i to meet their new child within a matter of days of “placement.” For most of the adoptive parents flown to Hawai'i, suspicions about the process were not triggered until they were taking their new baby back home with them to the contiguous U.S. without government approval and in potential violation of both RMI and U.S. laws.

The Hawai'i attorney's actions are not the only instance of unethical adoptions out of the RMI coming under scrutiny since the creation of the Compact of Free Association (“COFA”). Around the same time as the Hawai'i scandal, another Marshallese adoption fixer was arrested in Arizona while transporting two Marshallese women, one pregnant and the other a new mother, to the United States for purposes of giving up their children in exchange for money they were promised. These cases took the Marshallese community by surprise because it revealed that baby-selling continued to plague the island nation despite historical efforts to stop these practices. Seeking to combat human trafficking and baby selling, the RMI passed an adoption act in the early-2000s and amended COFA with the United States to restrict visa-free travel for adoptions. Recent cases, however, reveal that the current laws do not adequately address unethical adoptions in practice.

The RMI has a long, troubling history as a “baby market” due to its ethnic and cultural vulnerability. The RMI's vulnerability at the hands of the United States dates back decades before the most recent instances of baby selling to a strategic war period. Seeking to atone for its World War II nuclear testing in the pacific region, the United States entered into COFA with the RMI. Under COFA, the Marshallese people were compensated and provided with an easier path to immigrate to the United States. As a result of COFA's migration ease, individuals who reside in the contiguous United States often adopt Marshallese children. Situated between the RMI and North America, Hawai'i has become a transitory stop for many Marshallese children en route to their final adoptive homes on the contiguous United States. Unfortunately, most of the adoptions of Marshallese children by U.S. families do not prioritize the best interests of the children involved.

The prevalence of baby selling, especially in the context of the RMI, is largely a consequence of the profoundly under-regulated global twenty-first century practice of international adoptions. Children of color are at the greatest risk of falling victim to the exploitative international adoption system. Problems related to wealth and inequality in the treatment of children of color in international adoptions are nothing new. Indeed, the current international adoption regime can be largely traced back to the sharp increase in such adoptions in the wake of racial tensions during World War II. Following World War II, thousands of children were trafficked across State lines to be placed in new homes as a result of the humanitarian crisis created by the war. Many non-white children from Europe who were left parentless were given up for international adoption due to the local racial prejudice against them. The wars triggered a novel prevalence of transracial adoptions. Between 1950 and 1960, Black and Native American children were targeted for adoptions in United States, revealing a form of racial exploitation and control. Many non-white children are victims of differential treatment in the adoption system. This differential targeting and treatment of children of color in post-war adoptions extends to the context of the United States and RMI relationship.

The aftermath of World War II led to the United States' trusteeship over the Marshall Islands. As one of its first acts of “international oversight,” the United States selected the Marshall Islands as the Pacific site for testing nuclear weapons. As a result, the Marshallese people were the first population to be exposed to nuclear fallout, even though the effects were still not yet known. Additionally, the people of the Marshall Islands were displaced and forced to relocate due to the testing. Ultimately, this led to COFA, which allowed Marshallese individuals to immigrate to the United States without visas and required the United States to provide compensation to certain populations for the harmful effects the nuclear weapons caused to their health and livelihood. In the years since, COFA has made traveling to and settling in the contiguous United States accessible for people from the Marshall Islands. Agreements between these nations eased some of the oversight previously required for such movement, however, at the expense of exacerbating existing holes within international law governing adoptions.

Children's rights have been on international legal advocates' minds long before COFA considerations. These rights were first expressed as Declarations and later as Conventions that States were encouraged to sign on to and incorporate. As early as 1924, the League of Nations recognized and affirmed the existence of rights specific to children and the responsibility of adults towards children. International efforts were not focused on children's rights again until 1989 when the United Nations adopted the International Convention on the Rights of the Child (“CRC”). The international community, however, quickly realized that the previous conventions did not stop baby selling.

In 1993, the Hague Conference on Private International Law formed a committee to review international adoption practices in order to develop a workable international scheme to prevent baby selling, which became known as The Hague Conference on Private International Law: Final Act of the Seventeenth Session, Including the Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption. During the conference, the Hague Convention of 29 May 1993 on Protection of Children and Cooperation in Respect of Intercountry Adoption (“Hague Convention”) was drafted to provide the international community with a novel best interest of the child framework in hopes that by focusing on the child, a reduction in baby selling would ensue.

The United States did not fully incorporate the Hague Convention into its domestic adoption laws until 2008. Four years later, the Universal Accreditation Act of 2012 required that every international adoption service provider comply with the Hague Convention requirements. The United States, however, has failed to ratify many of the other conventions which protect children, including the CRC. Because of this, many holes still exist within U.S. federal adoption law, especially when it comes to implementing international standards for adoption decisions based on the best interest of the child.

Although Hawai'i has focused its adoption policies on the best interest of the child standard, this has not been enough to address the baby selling concerns. In the early 2000s, after it was discovered that Hawai'i was at the center of unethical adoptions out of the Marshall Islands, the RMI passed a 2002 Adoptions Act aimed at better regulating the adoption of Marshallese children.

In addition to RMI legislation targeting adoption practices, the RMI government also made attempts to address the problem with Hawai'i specifically. Letters between the RMI's Minister of Cultural and Internal Affairs and then Hawai'i First Circuit Senior Family Judge Catherine Remigio confirmed that efforts were to be made from both sides to ensure that the child's best interest was prioritized in all adoptions between the RMI and Hawai'i. The RMI was deeply concerned that intercountry adoptions were arranged directly between private individual facilitators and adoptive parents in the United States. Yet these practices have continued. Furthermore, a large hurdle to ensuring the protection of Marshallese women and children from exploitation in the intercountry adoption process with the United States is that the language of adoption laws in both countries is too broad, leading to abuse of the system, negligent oversight, and ineffective enforcement.

There are also significant criminal implications involved in the discussions of baby selling and human trafficking. Pinpointing the exact cause behind the dubious practices associated with the adoptions between the United States and RMI calls for a multifaceted analysis. While it is beyond the scope of this Comment to outline a multifaceted analysis, this Comment focuses on the recommendations by Hawai'i Family Court judges to address consent issues, which have cultural underpinnings, and the application of international best practices to highlight how Hawai'i, as a transit point for Marshallese adoptions, can change its family laws to better prevent the exploitation of Marshallese individuals.

This Comment argues that the current Hawai'i-RMI agreements pertaining to the regulation of the adoption of Marshallese children fail to adequately protect against questionable adoption practices. This failure to protect Marshallese children both exemplifies the general shortcomings of the current international adoption system and compounds the effects of such shortcomings in the specific context of Marshallese children adopted by mainland parents in the United States in two ways.

First, the operation of COFA facilitates problematic adoption processes because it permits Marshallese children to be removed from their homeland with excessive ease under the court's radar. Second, current Hawai'i adoption laws and regulations provide insufficient protections for Marshallese children. These dynamics have resulted in a system wherein the major flaws in the current international adoption regime are exacerbated when it comes to Marshallese children because of the historical structural factors that have made RMI residents increasingly subject to exploitation.

With COFA's 2023 renewal, many terms are still being negotiated for its next phase; this Comment proposes new guidelines for the U.S.-RMI adoption process. In doing so, it recommends an approach which combines re-emerging adoption considerations for Hawai'i Family Court judges with international best practices. This Comment argues that Hawai'i should implement a consent hearing for birth parents and advocates for a focus on a best interest of the child standard which incorporates the child's right to their identity. This can be accomplished by taking extensive steps to keep children with families who share cultural origins.

Part II of this Comment discusses the war-torn history and humanitarian crisis that led to the modern international adoption system, particularly within the context of the U.S.-RMI relationship. Part III focuses on the evolution of international law regarding the rights of children, particularly as recognized by the international community and established in the Geneva Declaration on the Rights of the Child 1924 (Geneva Declaration), CRC, and the Hague Convention.

Part IV discusses the evolution of the United States' domestic laws in the adoption system. Part IV also focuses on the United States' historical attitude toward adoptions and how that has influenced the relationship and dynamics of adoption law between the State of Hawai'i and the RMI. Part IV further explores how the current international adoption system fails Marshallese children, many of whom are sold to adoptive parents who have no knowledge or intention of creating an environment that fosters the children's ethnic and cultural identities. The dismissal of cultural identity in the best interest of the child considerations leads to harmful effects for both Marshallese parents and adopted children. This Comment argues that the United States should amend its agreements with the RMI to apply the principle of subsidiarity. The Hawai'i State Legislature should also adopt a law that incorporates the 2004 recommendations of the Hawai'i Family Court judges and international best practices into its adoption regulations. In doing so, the focus would be on children's right to heritage and a rich ethnic cultural upbringing, which is fundamental to the best interest of the child standard used to assess the necessity of adoption placements. This Comment concludes by analyzing the benefits and possible shortcomings with this proposal, but ultimately concludes that these changes aid in protecting vulnerable populations like Marshallese women and children.

[. . .]

The U.S.-RMI relationship is founded on exploitation. World War II nuclear testing and present-day baby selling taint the possibility of a robust United States and RMI partnership. And while the United States continues to atone for the irreparable harm it caused to the RMI during World War II, the United States can and must make greater strides to prohibit future harm from occurring. With continued U.S.-RMI relations, this Comment offers proposals to limit the chances of that relationship continuing or ending with exploitation. The current international adoption conventions offer guidance that the United States should utilize to curb the practices of human trafficking and baby selling. Additionally, Hawai'i can contribute to the solution by implementing consent hearings that birth mothers are required to attend before the state will approve the adoption.

However, more research needs to be conducted to provide insight into how these recommendations could be implemented in all United States international adoptions and not just in adoptions where the RMI is the sending country. States have an obligation to the well-being of these children, and need to act more effectively in seeing that the protection of children is realized. Until stronger efforts are made to keep children within their community networks, children of color will continue to suffer for the sake of completing a home.

J.D. candidate 2024, University of Hawai'i at Mnoa William S. Richardson School of Law; Certificate in International Law; B.A. in Sociology, California State University, Sacramento, 2020, Summa Cum Laude.