When Sergei Magnitsky passed away in Moscow’s Butyrka prison in 2009, human rights activists worldwide cried foul. Magnitsky was a prominent lawyer who uncovered and investigated a massive banking fraud allegedly committed by Russian officials. During his investigation, he was arrested on charges of tax evasion and imprisoned for nearly a year without trial. After developing pancreatitis, he was denied medical treatment; an investigation conducted by the Russian authorities determined that this was the cause of his death. Sergei Magnitsky’s maltreatment and death led to the United States adopting the Magnitsky Act, which bans certain Russian officials charged with human rights abuses from entering or holding assets in the United States. Although the Russian court has posthumously found him guilty, Magnitsky has become a symbol of the fight against corruption in Russia.
The piece of Russian legislation that has come to be known as the Dima Yakovlev Law is a direct response to America’s Magnitsky Act. The Dima Yakovlev Law is named for a young Russian adoptee who died after being left in a hot car by his American adoptive father. The law places restrictions on any individual who has abused the “fundamental human rights and freedoms of Russian citizens, and includes an article that prohibits American families from adopting children from Russia.” This section of the law has been a cause for alarm and unrest since it was enacted on January 1, 2013. As the law only bars American families from adopting from Russia, many have interpreted it as a political move against the United States. Advocates of the adoption ban use past examples of children who have been abused or have even died in the care of their American adoptive parents to illustrate that institutionalization in the home country is a safer option for orphans. Those who oppose the law claim that conditions found in Russian orphanages are poor, and that placing children with an adoptive family, regardless of which country the family lives in, is the most beneficial option. The purpose of this paper is to explore the arguments for and against the Dima Yakovlev Law and to consider which side has the stronger case in advocating for the welfare of Russian orphans.
Because of the uniquely political context in which the law was written, some question whether it legitimately aims to protect children, or if it is simply an act of political aggression against the United States. Although it is undeniable that the international adoption system is severely flawed and sometimes produces undesirable outcomes, the Dima Yakovlev Law does little to protect the interests of Russian orphans because the legislation limits opportunities for adoption, thereby increasing the number of children who will remain institutionalized.
I. Arguments Against the Adoption Ban
Historically, the United States has been a global leader in international adoptions. Over the past twenty years, American families have adopted over 60,000 children from Russia alone. Due to the recently passed adoption ban, thousands of children who might otherwise have had the opportunity to be adopted will remain in orphanages across Russia. Those who argue against the ban often criticize the low standard of care in Russian orphanages, and argue that the nearly 600,000 orphans currently residing in such institutions would be better off when placed with families.
A significant majority of children who enter orphanages in Russia are “social orphans” whose parents are still alive, but have abandoned them for any number of reasons including illness, disability, or the family’s financial situation. For some children who have experienced great instability or dysfunction before placement in an institution, the orphanage is an improvement over their previous environments and at least provides for their basic needs. The Russian orphanage system, however, has many shortcomings. Although the institutions care for children’s most basic physical needs, most Russian orphanages fail to care for children psychologically.
Children who may be otherwise healthy are exposed to numerous risks in Russia’s orphanages. Malnourishment, intestinal disorders, and skin diseases are especially common in institutions. Some children experience a disorder referred to as psychosocial short stature, in which psychological stress manifests itself physically in the stunted growth of the child. Respiratory illnesses spread quickly in orphanages and result in the hospitalization of approximately 30% of children after entry into baby homes (baby homes are institutions for children four years of age and under). Children who are hospitalized sometimes wait two or three months to regain their spot in an orphanage, indicating that there are more orphans than the system can support. Prolonged hospitalization exposes children to further risk of infection and causes the undue stress of having to adjust and readjust to new environments. Not only does institutionalization increase a child’s risk for infection, but it also compromises development. Children who are of an average height, weight, and head size at the time they enter the orphanage often begin to display growth delays after they enter the system. An inverse correlation was found between height and duration of residency in the orphanage, suggesting that institutionalization compromises height in particular.
Because most Russian orphanages operate under local Ministries of Health, they focus on adequately providing the most important aspects of healthcare; however, the psychological health of institutionalized children is largely ignored. Caregiver positions are demanding and low-paying, so there is a high turnover rate for orphanage staff members. In most cases, children experience between 50 and 100 different caregivers over a two-year period living in an orphanage. A widely accepted principle in the field of psychology is that secure attachment relationships in which a child feels comfortable with a reliable caretaker early in life are important to the long-term mental health of an individual. Although the basic physical needs of the children are provided for, orphans are often deprived of the opportunity to form these types of relationships with their caregivers. When children are not able to form secure attachments at a young age, Reactive Attachment Disorder (RAD) can result. Symptoms vary but usually begin presenting themselves by the age of five and may include inhibited or ambivalent reactions to social or caregiver interaction, or the tendency to be overly friendly, even with strangers.
A study conducted in a sample of St. Petersburg’s best baby homes showed that caregivers interacted minimally with children and only in a business-like manner, demonstrating little warmth or emotion. They were likely to ignore children’s crying and aggression. Daily activities such as feeding, toileting, bathing, and dressing were carried out in the fashion of a production line, and adults rarely spoke to children during these activities. During free time, caregivers did not initiate interactions with children. The children in this study demonstrated behaviors associated with attachment disorder; babies over six months would stare blankly at visitors with little interest or curiosity, and older children exhibited aggression, avoidance, and inappropriate friendliness. Most children engaged in repetitive self-stimulatory behavior such as banging or rocking. Another observational study performed in Murmansk baby homes showed that on average, children up to four years old spent 50% of the time between 8 AM and 1 PM alone. Without human interaction, children miss the opportunity to establish cognitive skills at crucial points in their development.
The limitations of Russian state care are even greater for sick and disabled children. Due to a negative cultural and societal understanding of disability, physically and/or developmentally disabled children are often admitted to the orphanage system at birth. They remain segregated from those who are considered to be developmentally normal throughout their time in the orphanage system.
Caregivers in institutions tend to ignore disabled children, leaving them confined in cribs and playpens, sometimes in unnatural or uncomfortable positions. The minimal interaction between caretakers and disabled children in state-run institutions is indicative of the broader view of disability in Russia. Negative attitudes toward disabled individuals can be traced back to the Soviet era. During that time, effectiveness and efficiency in the workforce were the primary tools used to gauge a person’s worth. Individuals with disabilities consume resources, but are unable to contribute to society in the expected ways. Although this attitude has improved somewhat in recent years, there is still a stigma attached to disability that is in part supported by the medical community. Children with physical and cognitive disabilities are still often given little hope or opportunity in orphanages or Russian society, because it is widely believed that they are unable to improve and will have no chance for success, despite medical developments in recent decades that allow the integration of many disabled people into society. For these reasons, disabled children are often institutionalized early in life, are largely ignored by institutional caretakers, and are among the least likely children to be adopted.
Children who enter the orphanage system with preexisting conditions tend to experience worsening health and lower quality of life over the course of their residency. For some children who have experienced exceptionally adverse situations before being admitted to an orphanage, the institution provides basic care that may not have been available to them before. For this reason, children whose growth is severely delayed before they enter the system may demonstrate “catch-up” growth during the first months of institutionalization. Recovery, however, seems to be incomplete for most children.
At the age of four, institutionalized children in baby homes undergo a process to determine whether they are “educable.” Most children “graduate” to children’s homes (often referred to in Russia by the acronym “detdom”) or one of a range of specialized institutions that are collectively referred to by the term “internat.” The difference between the two is parental rights. Parents of children in a detdom are generally either deceased or have been stripped of their parental rights by the state for abuse. Parents of children in internat institutions still have rights and may theoretically visit the child, take the child home on weekends, and otherwise still be involved in the life of the child. Most children with disabilities are placed in internat institutions. While there are internat institutions intended to specialize in one disorder or group of disorders, in practice, children facing challenges ranging from Attention Deficit Disorder to Trisomy 21 to cerebral palsy often live together, with little individual attention or care for their varying disabilities. Furthermore, while parental rights are intact for children in internat institutions, children are often left permanently in the institution. Thus, in practice, the real difference between a detdom and an internat is usually a child’s disability.
Widespread alcohol abuse in much of Russia has led some researchers to consider the possibility that some of the most common developmental problems among institutionalized children are related to Fetal Alcohol Spectrum Disorders (FASD). A 2006 study of Murmansk baby homes showed that nearly all children who strongly expressed phenotypic markers for FAS/FASD also showed developmental delays. Approximately 70% of the children in this study were considered to be moderately to severely developmentally delayed.
Children who struggle with physical or developmental disabilities generally do not attend school, but there are exceptions. Some who are able to attend lessons are educated within the institution for six years and may learn a trade such as woodworking or sewing. For the least impaired residents who will leave the institution at age 18 to live on their own, this minimal standard of education and limited contact with the outside world is poor preparation for independent living. Those who are unable to care for themselves and have no family willing to care for them will remain in state-run nursing homes for the rest of their lives. This system demonstrates an attitude that not only assumes, but also ensures that disabled individuals have no chance of improvement.
Although the challenges and additional medical costs keep many families from adopting disabled children, many Americans who are looking to adopt generally have more positive and accepting attitudes toward disability, and families who can afford the process of foreign adoption are more likely to have the economic means to support a disabled child. In 2011, American families adopted 89 Russian children with disabilities, while Russians adopted only 34. Children who are physically and mentally challenged receive more individual attention and human contact outside of state care and have more opportunities to develop and succeed in mainstream society.
Non-disabled residents of children’s homes also “age out” of institutions at age 18. Despite having received a more comprehensive education than children in the internat institutions, many leave the orphanage unprepared to succeed in higher education or the workforce. Conformity is a key element of survival in state-run childcare institutions, but this rarely translates into a valuable asset in the workplace. Vyacheslav, whose full name is withheld to protect his identity, was institutionalized at the age of thirteen. He remembers: “This system simply teaches children to adapt and survive. We were given a comfort zone, but within that comfort zone you have to become spineless.” Children like Vyacheslav who age out of the system are often unmotivated to find permanent work and are at a higher risk for drug and alcohol abuse, participation in criminal activity, and depression. Those who do make an effort to find a long-term job struggle against long-standing prejudice from employers, because popular Soviet and Russian media have portrayed orphans as delinquents who extract money from the state and engage in criminal activity. Institutions do not offer the individual support that can aid in attaining educational and professional success. Children who are adopted often receive more educational support and encouragement and will be better prepared for independent living.
Although the number of Russian children who are adopted by American families is far smaller than the number of those who remain institutionalized, adoption provides numerous benefits to those children. Children who are adopted are afforded greater opportunities to develop improved social-emotional attachments, usually have access to a more individualized approach to healthcare and education, and thus are more likely to experience future success in adulthood. Thus, those arguing against the ban feel that limiting opportunities for children to be adopted, especially for reasons of what may be perceived as political rivalry, is unethical.
II. Arguments in Support of the Adoption Ban
Supporters of the Dima Yakovlev Law and those who oppose the new legislation share an important commonality: both sides argue that they have the best interests of children in mind. This section will examine three major arguments that are used to support the Russian adoption ban. Firstly, some argue that American families should not be allowed to adopt Russian children because there are allegedly high rates of child abuse in the United States. Secondly, some people believe that Russian children should remain in their home country where they can develop as a member of their own nation and culture. Finally, there is a long history of corruption in the international adoption system, and some view the adoption ban as a way to eliminate this from the Russian system.
Over the past twenty years, certain high profile cases of Russian children who have been mistreated by their adoptive families have led to the perception that abuse rates are higher than they are. Perhaps the most well-known case is that of Dima Yakovlev, after whom the Russian legislation was named, who died in 2008 after being left in a hot car for hours. Although his death was deemed accidental and his adoptive parents were not convicted of manslaughter, the incident sparked public outrage among Russian citizens. In another widely publicized case, in 2010, a seven-year-old boy was sent back to Russia alone with a note explaining that his adoptive mother could not handle his uncontrollable behavior. The Russian population has also been shocked by statistical evidence of high incidence of child abuse in the United States. One Russian news article, entitled “USA takes the lead in killings of children,” references astounding statistics from the American organization Childhelp. According to the non-profit, one report of child abuse is made every ten seconds in the United States, and five children die every day as a result of child abuse. For many Russians, reports of specific cases like Dima Yakovlev’s and statistics that indicate high instances of abuse in the United States demonstrate that Americans are unwilling and unable to adequately care for adopted children. However, statistics such as these are frequently taken out of context and demographic factors that have been found to influence abuse rates are often ignored. Some of these factors (low income, for example) would make it nearly impossible for a family to pursue international adoption.
In addition to the condemnation of child abuse in America, nationalist rhetoric has played a strong role in the debate over the adoption ban. Some believe that Russians should care for their own people instead of sending them abroad. President Vladimir Putin himself said, “There are probably many places in the world where living standards are better than ours. So what? Shall we send all the children there, or move there ourselves?” Member of Parliament, Yekaterina Lakhova has referenced other countries that prohibit international adoptions in her support of the ban, saying that, “No normal, economically developed country gives away their children.” She claims that her support of the new legislation is a demonstration of her Russian patriotism. Those who support this viewpoint explain the actions of Americans as unnecessary and unwanted charity. Keeping Russian children in their home country is at once a mark of national pride and a way to protect the nation’s children from the potential abuse that they could experience in the United States.
Some Russians who support the American ban believe that it should be expanded to include all international adoptions. The argument that international adoption should be outlawed in order to preserve children’s heritage corresponds to the above nationalist argument, and is used to support the American ban. There is a concern that children who are forcibly removed from the culture that they were born into will suffer adverse psychological effects such as depression and feelings of loss. This may be of particular concern when older children are being considered for international adoption, because they have already begun to establish a cultural, ethnic, and national identity and therefore may be more likely to have trouble adjusting to their adoptive family than children who are adopted at a younger age.
Some have compared the adoption of Russian children across borders to the forced removal of First Nation and American Indian children in Canada and the United States, where, from the mid-1800s to the 1980s, a number of policies were enacted that forcibly removed native children from their natural families and communities and placed them in boarding schools or with white families. In Australia during the first half of the 20th century, similar policies were also put into effect. Proponents of these projects argued that their objective was to protect the children that they took and to integrate them into mainstream society, but children were prohibited from maintaining connections with their families, tribes, and cultures, and instead were forced to speak English and practice Christianity. Many children who were relocated to institutions and family settings in all three countries experienced emotional, physical, and sexual abuse.
Although these programs were undertaken in the name of child protection, the majority of forcibly removed children in all three countries suffered in the institutions and adoptive families where they were placed, and they continued to experience feelings of loss of identity and depression into adulthood. Furthermore, adults who had suffered as children and were taken from their communities were more likely to abuse their own children, creating a cycle of abuse. Some who oppose international adoption argue that allowing a child to be adopted outside of their home country is unjust in many of the same ways that forced removal of indigenous children in the United States, Canada, and Australia was unjust.
Finally, some view the Russian adoption ban as a way to rid the adoption system of corruption. Despite the largely positive portrayal of international adoption in the United States, corruption has always infected the system that is in place to manage it. The fees and “donations” associated with international adoptions are expensive. The opportunity for corruption and trafficking in the international adoption system stems from the fact that there are people who are willing and able to pay the high costs associated with adopting from another country, and there are individuals who know they can take advantage of this and make a profit from the “industry” of foreign adoption.
Around the world, there are cases of children being abducted and put up for adoption without their parents’ knowledge or consent. In some countries such as Nepal and Guatemala, international adoption became a lucrative business, and when demand exceeded the available supply, children were secretly sold for adoption. Adoptions from both of these countries to the United States have been halted for some years now, but corrupt adoption practices are still on the rise in some parts of the world. In 2012, institutions described as “baby farms” where girls are forced to bear children for the purpose of international adoption were discovered and raided in Nigeria.
These examples represent extreme cases of unethical adoption procedures, and although this type of extreme corruption in the field of adoptions is unheard of in Russia, the money that changes hands during the adoption process is cause for suspicion and concern. The overwhelming bureaucratic maze that prospective adoptive parents must wade through is rife with bribery and mismanagement. Because adoption is free for Russians but expensive for foreigners, orphanages profit from international adoption. Some worry that, for this reason, officials will favor American families over Russian families in the adoption process. Because Russian laws make it very easy for a birth mother to relinquish her child, most orphanage residents still have living family members. Opposition to international adoption of these children who have living relatives is particularly strong.
Dima Yakovlev has become a poster child not only for the possibility of child abuse in American adoptive families, but also for the corruption that is deeply rooted in the system. In his case, when an American family became interested in adopting him, the orphanage chose that family over his own grandmother who had already adopted Dima’s brother, knowing that they would make money from an international adoption. Prohibiting families in the United States from adopting Russian children narrows the opportunity for adoption officials to profit from these arrangements.
III. Shortcomings of the Legislation
Although supporters of the ban bring up a myriad of valid concerns regarding international adoption, the Russian adoption ban does not sufficiently address these problems. Instead, this means that approximately 3000 children per year will not reap the benefits of placement in a family environment. Sick and disabled children will be most severely disadvantaged by the adoption ban, because they receive lower quality care in Russian institutions and are less likely to be adopted by Russian families.
While it is true that there have been cases of abuse and neglect of children adopted from Russia in the United States, those who argue that this should be grounds for terminating international adoption ignore the fact that children are faced with abuse in the Russian Federation as well. The statistics regarding child abuse in the United States are staggering, but domestic violence remains unclassified as a crime in Russia and therefore there are no national statistics about it. If victims of abuse decide to issue a complaint to the authorities, they are required to provide proof of abuse. For this reason, most cases of abuse go unreported, but when a case is reported, there is very little that enforcement officers can do because in Russian culture what occurs behind closed doors is considered private business.
It is naïve to think that children who remain in Russia do not face abuse. Many children residing in orphanages are the victims of institutionalized neglect. Over the past twenty years, nineteen out of 60,000 Russian children adopted by families in the United States have perished at the hands of their adoptive parents. According to the Moscow Children’s Rights Ombudsman, 1,200 adopted children have died as a result of abuse in Russian homes over the same period of time. As shocking and horrifying as American statistics on child abuse are, it is difficult to interpret them correctly in this situation because there is little to compare them with.
Although it has been argued that the adoption ban is a signal of Russian patriotism and a noble effort by Russia to take responsibility for the care of its own citizens, the fact remains that thousands of children languish in under-funded, poorly managed institutions with few prospects once they age out of these establishments. President Putin has issued a decree calling for more Russians to adopt children and for improvements to the orphanage system, but this holds no real political weight, and Russian as well as American critics of the ban have questioned its effectiveness. Although Russian officials have promised again and again to reform or even eliminate the need for the orphanage system, improvements are concentrated in prominent cities, while more rural institutions are ignored and promises for universal progress are forgotten.
Those who believe that children should not be removed from their home country and separated from their heritage make a compelling point, especially when adoptees are old enough to have begun forming a cultural, ethnic, and national identity. A feeling of having lost one’s cultural identity during the adoption process has been shown to lead to depression and perceptions of lower self-worth. It may be easiest for a child to adjust to living with a family in a child’s own culture. If a child’s placement comes down to a decision between institutionalization in his or her home country or family placement abroad, however, a variety of factors complicate the situation. It is hard to say whether adjusting to a new country will be more detrimental to an older child than remaining in an orphanage. There is evidence to suggest that children who are adopted internationally after the age of six demonstrate worse outcomes during adolescence than their non-adopted counterparts, particularly in education. Some studies that measure the long-term success of adopted children, however, suggest that being adopted at an older age does not have a negative effect on an individual’s success in adulthood. According to a study by Susan Decker and Megumi Omori, adults who were adopted before the age of six demonstrate no significant difference in income, homeownership, and divorce rates than those who were adopted after the age of six.
Relocating indigenous children and international adoption may share some similarities, but they are part of different global historical trends. The forced removal of First Nations’ and American Indian children can be characterized by post-colonial attitudes toward these groups of people, the systematic nature of the projects that were put in place, and their underlying goal of cultural eradication. Consider, for example, the Indian Adoption Project, which was enacted in the United States between 1958 and 1967. The United States government commissioned adoption agencies across the country to remove between 395 and 700 Native American children from their natural families and communities and place them with white families. The stated purpose of this project was to reeducate children and integrate them into mainstream society; however, forced removal not only had detrimental effects for indigenous children in these countries, but it also purposefully attempted to rob entire populations of the opportunity to secure the future of their cultures.
Although proponents of foreign adoption of Russian children also argue that adoption is in the best interests of the child, international adoption does not have the same genocidal implications that programs like the Indian Adoption Project did. Russian children are not systematically removed from their country for the purpose of eliminating Russian culture. Furthermore, the international adoption of Russian children is neither systematic nor forced, although there are cases in which parents are pressured by doctors or state workers to give up a child for adoption, particularly when the child is disabled. According to Russian regulations, children must be without parental care for a significant period of time or, if the natural parents are still living, parental consent must be obtained for them to be adopted abroad. Children are not removed from their families but from sub-par state-run institutions. The implications of the Russian adoption ban cannot be compared with those of the Indian Child Welfare Act of 1978. Although exceptional cases like Dima Yakovlev’s indicate that regulation of international adoption is indeed necessary, they also demonstrate that there is no way to prevent every case of abuse, neglect, or accident.
The history of international adoption is plagued by corruption, and Russia is no exception to this. Although the adoption ban will eliminate the opportunity for officials to profit from American adoptive families, this legislation does nothing to remedy the problem of corruption, which is deeply rooted in the adoption system itself; people from many other countries can still adopt children from Russia. Most corrupt practices occur not on the side of American adoption agencies, but rather on the side of Russian orphanages. While it is undeniable that the circumstances under which Dima Yakovlev was adopted by his American parents were poorly regulated, this was an extreme case in which orphanage administrators, not an American adoption agency or adoptive family, engaged in unethical behavior. More common examples of institutional corruption involve bribery at various levels of the highly bureaucratic system. Although corrupt activity in the Russian adoption system may diminish with the passing of the Dima Yakovlev Law, it will not be because the problem of corruption has been solved. Rather than ban all American adoptions, a more effective solution might be to enforce more aggressive screenings of orphanage administrators during the adoption process.
The Russian adoption ban is not the first of its kind; Romania, for example, passed similar legislation blocking all international adoptions in 2005. Advocates of the Romanian ban were particularly concerned with the scale of corruption in the international adoption system. Member of European Parliament, Baroness Emma Nicholson opposes all international adoptions and was a leading supporter of the Romanian adoption ban. She has argued that it is the job of the state to care for its citizens and that it is detrimental to the mental health of a child to be separated from his or her country of origin. Similar reasoning has been used to explain and support the Dima Yakovlev Law.
The trajectory of Romania’s orphanage system since its ban on international adoptions was passed, however, is not one to emulate. While, according to the government, the number of children in Romanian orphanages has decreased, many have simply been moved to adult institutions. Horrifying incidents of emaciated children and adolescents tied to toilets or beds are not uncommon. There are low standards for health care, sanitation, and education, and many children remain institutionalized for life. One nurse who was involved in the New York Times report cited here accused the Romanian orphanage system of “manufacturing disability” by ignoring mild problems that appear early on and allowing them to progress. Russia’s orphanages already display many of the same poor conditions found in Romanian institutions and, like Romania, Russia has failed to provide adequate social welfare programs and state care for parentless children. Can Russia afford to eliminate opportunities for orphans to be adopted and embark on the same downward spiral as their Romanian neighbors to the west?
Although those who support the Russian adoption ban bring to light many important concerns about international adoption, the Dima Yakovlev Law does little to address those concerns. This legislation is primarily a political play in a tenuous conflict between the United States and Russia. Because such a high number of Russia’s orphans are “social orphans,” welfare programs that provide aid to low-income families as an alternative to relinquishment could be the first step in alleviating the “orphan problem.” Other basic reforms would include increased support for families who have children with disabilities and more integration of disabled children in regular schools to receive an equal education beyond basic skills like woodworking or sewing. Within the system, high-impact reforms can be made at a low cost. Such improvements might include better training, higher salaries, and increased prestige for orphanage staff, creating family groups within orphanages so that children form stronger relationships with their caregivers, and more openness between institutions and the larger community.
Finally, to eliminate corruption from the international adoption system, there needs to be a higher level of international cooperation. Documents such as the Hague Convention and the UN’s Convention on the Rights of the Child have begun to spell out guidelines that could help curb corruption in the adoption process. Although implementation of these documents has been ineffective in many places, efforts to articulate international agreements surrounding adoption mark the start of an ongoing process.
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