Inter-Country Adoption in an Orphan State

The Swazi government has extended a moratorium on international adoption of children. But in a powerful article, Professor Elizabeth Bartholet has argued that international adoption is a fundamental human right, where a local adoptive parent cannot be found for an unparented child (HERE). She argues that UNICEF, a number of powerful NGOs and nation-states have conspired to deny children this right, on grounds of heritage and nationalism. In response, she writes:

“[C]hildren’s fundamental human rights to grow up in a nurturing family should trump nation state rights...Moreover, keeping unparented children in their countries of origin does nothing...[for] poor countries and their people. It is simply a symbolic way for the powerless to stand up to the powerful, for countries formerly victimized by colonialism to make an anti-colonialist statement. And it exploits the least powerful of all, the children of the poorest groups in these countries.” (p 27)

This argument has serious implications for Swaziland, a state in which orphaned and vulnerable children constitute around 20% of the population, or 40% of the child population. Heritage and genetic links are highly valued here. Culture is viewed as an extremely important part of life. In addition, a number of international adoption cases caused some anxiety amongst the population. These triggered the government to place a moratorium on such adoptions, ostensibly until the country ratifies the Hague Convention on Intercountry Adoptions. It is this very instrument which is singled out for censure by Paulo Barozzo (HERE), who in support of Bartholet writes:

“The principle Bartholet offers is to consider each and every child as an independent and fully fledged subject of human rights – as a person. The institutional entailment of this principle, she continues, is straightforward: states and international organizations are under an international human rights obligation proactively to promote and facilitate urgent adoption. In light of the devastating effects of institutionalization and other forms of crushing dependence and uncertainty, states should concurrently plan both for domestic and for transborder adoption options, proceeding with whichever offers a nurturing family for the unparented child first.”

I was recently consulted about a case involving a Finnish aid worker who had lived in Swaziland for five years and wanted to adopt a child from here before going home. He and his wife had been trying for a number of years to have a third child and had made arrangements through the appropriate authorities. They had even met the child that was assigned to them. The moratorium on inter-country adoptions, however, put a stop to the adoption, and they have left the country without the child. I don’t know where that child is now, presumably still in the orphanage where he was being raised. But the whole experience left me feeling uneasy.

So, is there a right to an international adoption contained within the Swazi Bill of Rights?

Quite possibly. The 2005 Constitution endorses “the family [as] the natural and fundamental unit of society...entitled to protection by the State” (s 27(3)). Further, “childhood” is “entitled to special care and assistance by society and the State” (s 27(4)). The picture is complicated by s 29(3) which reads: “The child has the right to be properly cared for and brought up by parents or other lawful authority in place of parents.” This might read more like a right to institutional care than a right to an international adoption. But the primacy is placed on parents – not necessarily biological – and the overall context of the protective provisions for children arguably grant them a constitutional right to an international adoptive parent, if their biological parents cannot offer them support and a local parent cannot be found.

Maternal Health & the Swazi Constitution

A friend of mine, Emaceke, gave birth a couple of weeks ago.  The baby came on quickly and she delivered at her home – on her knees.  She didn’t seem to mind, or perhaps she was quite proud of her efforts.  In discussing what I see as a heroic event, another colleague Zodwa explained that she had given birth in her kitchen by herself.  She said she just instinctively knew what to do.  I was shaking my head in disbelief at what the Swazi women thought was quite a normal circumstance.  When I got back to my desk, I quite coincidentally received these stats:

	World Summit for Children Indicators	MICS 2000	SDHS 2006-07
Knowledge of preventing HIV	Women who correctly state the 2 main ways of avoiding HIV infection	49.5%	91.5%
Knowledge of misconceptions of HIV/AIDs	Women who correctly identified 3 misconceptions about HIV/AIDs	41%	51.9%
Knowledge of mother to child transmission	Women who correctly identify means of transmission of HIV from mother to child	47%	75.8%
Attitude to people with HIV/AIDs	Women expressing a discriminatory attitude towards people with HIV/AIDs	77.4%	42.7%[1]
Knowledge of HIV testing	Women who know where to get a HIV test	59.7%	91.8%
HIV testing	Women who have been tested for HIV	17.3%	35.8%
Contraceptive prevalence	Married women aged 15-49 who are using a contraceptive method	27.9%	50.6%
Antenatal care	Women aged 15-49 attended at least once during pregnancy by skilled personnel	79%	97.1%
Childbirth care	Births attended by skilled health personnel	70%	74.3%
Birth weight below 2.5 kg	Live births that weigh below 2500 grams	5%	8%
Exclusive breastfeeding	Infants aged less than 4 months who are exclusively breastfed	31.2%	32.3%[2]
Timely complementary feeding	Infants aged 6-9 months who are receiving breast milk and complementary food	60%	76.5%
Continued breastfeeding	Children aged 12-15 months and 20-23 months who are breastfeeding	76.6% (12-15)	76.4% (12-15)
		24.8% (20-23)	30.7% (20-23)
Under five mortality	Probability of dying before reaching age five	122/1000	120/1000
Infant mortality	Probability of dying before reaching age one	87.7/1000	85/1000
Underweight prevalence	Under-fives who are too thin for their age	10%	5.3%
Stunting prevalence	Under-fives who are too short for their age	30%	29%
Wasting prevalence	Under-fives who are too thin for their height	2%	2.9%
DPT immunization	Children immunized against diptheria, pertussis and tetanus by age one	77.2%	90.2%
Measles immunization	Children immunized against measles by age one	72.3%	92%[3]
Polio immunization	Children immunized against polio by age one	80.2%	85.9%
Tuberculosis immunization	Children immunized against tuberculosis by age one	94.1%	~
Neonatal tetanus	One year old children protected against neonatal tetanus through immunization of their mother	79.8%	74.9%
Home management of illness (IMCI)	Under-fives reported ill during the last 2 weeks who received increased fluids and continued feeding	15.5%	~
Care seeking knowledge	Caretakers of under-fives who know at least 2 signs for seeking care immediately	17.4%	~
ORT use	Under-fives who had diarrhea in the last 2 weeks who were treated with oral rehydration salts or an appropriate household solution	92%	82.8%
Home management of diarrhea	Under-fives who had diarrhea in the last 2 weeks and received increased fluids and continued feeding during the episode	6.9%	11.1%
Care for acute respiratory infections	Under-fives who had ARI in the last 2 weeks and were taken to an appropriate health provider	60.9%	73%
Use of safe drinking water	Population who use a safe drinking water source	51%	63.9%
Sanitary means of excreta disposal	Population who use a sanitary means of excreta disposal	72%	56.5%
Preschool attendance	Children aged 36-59 months who are attending some form of organized early childhood education programme	12%	21.6%
Net primary school attendance	Children of primary school age attending primary school	90.6%	84.2%
Children reaching Grade 5	Children entering Grade 1 who eventually reach Grade 5	93.5%	62%[4]
Birth registration	Under-fives whose births are reported registered	53.5%	35.1%
Children’s living arrangements	Children aged 0-14 years in households not living with biological parent	19.7%	32.6%[5]
Orphans in households	Children aged 0-14 years who are orphans living in households	2% - both parents	11.8%[6]
		5.6%- one parent
Child labour	Children aged 5-14 who are currently working	11.8%	~

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[1] Among women age 15-49 who have heard of AIDS, percentage expressing specific accepting attitudes towards people

with AIDS

[2] Percentage of children less than 5 months who are exclusively breastfed

[3] Percentage of children age 12-23 months receiving measles vaccination

[4] Percentage of children entering Grade 1 who complete Grade 7

[5] Percentage of children under the age of 15 not living with a biological parent

[6] Percentage of children under the age of 15 who have a very sick parent OR live in a household where an adult has been very sick OR died in the past 12 months (vulnerable children)

These are from two quite separate studies, methodologically incomparable.  But the person who compiled them thought she might like to compare them anyway, and I think they capture the state of things quite well.

74% of women in labour being attended to by skilled health personnel is, I suppose, pretty good for a middle-income country in Africa.  But it is still a terrible state of affairs.

But what has this got to do with the Constitution?

I’m not sure, but my feeling is with a different constitutional structure, these sorts of problems would be less likely, or would be being more rapidly addressed.  As it is, the following sections of the Constitution require duty bearers to enact laws for the assistance of women and children:

27(4) Motherhood and childhood are entitled to special care and assistance by society and the State.

27(6) Subject to the availability of resources, the Government shall provide facilities and opportunities necessary to enhance the welfare of the needy...

28(2) Subject to the availability of resources, the Government shall provide facilities and opportunities necessary to enhance the welfare of women to enable them to realise their full potential and advancement.

29(7) Parliament shall enact laws necessary to ensure that –

(a)    A child has the right to the same measure of special care, assistance and maintenance as is necessary for its development from its natural parents (sic)...

(b)   A child is entitled to reasonable provision out of the estate of its parents;

(c)    Parents undertake their natural right and obligation of care, maintenance and proper upbringing of their children; and

(d)   Children receive special protection against exposure to physical and moral hazards within and outside the family.

So, what have duty bearers done since the passing of the 2005 Constitution?

A full list of what the Government has done is not possible here:  suffice to say that it does not seem that the policy or practice of the Government has been radically transformed by these new constitutional requirements. 

As for parliament, well since 2005, I am aware of only two women-/child-friendly laws being passed:  The Free Primary Education Act 2009 and the Child Trafficking Act 2010.

The Free Primary Education Act 2009 was passed under duress of the courts, and in violation (not fulfilment) of the constitutional requirement for free primary education.  And the Child Trafficking Act 2010 was passed under very direct pressure from the government of the United States of America.  Its benefit has been marginal at best, and downright damaging at worst.  Marginal because the American obsession with trafficking is a somewhat middle-class concern in a country where 30% of children are orphans, there is a skeletal welfare system, and no free education.  And damaging, as the State Department’s ‘ride in and take over the parliament’ approach has taken the momentum out of much more important bill, the Child Protection & Welfare Bill and the Sexual Offences & Domestic Violence Bill, and has increased the burdens of inertia within parliament, which tends to think it has now done its bit for children. 

But as it is, the priorities of parliament, the Government and the traditional authorities, have not really been shaken up by the 2005 Constitution.  So there won’t be rapid improvements for Emaceke or women like her anytime soon.