1. Before 1993
Since Vietnam embarked on the renewal process, civil relations, including marriage and family relations between Vietnamese citizens and foreigners, have constantly developed.
Before 1993, the management and permission of adoption of Vietnamese children by foreigners met with many difficulties due to the absence of legal provisions concerning this matter as well as to different ways of application by localities. Cases of child adoption by foreigners emerged largely in industrial parks, joint ventures with foreign parties or big provinces or cities. In that period, foreign child adoption organizations already expressed their intention to enter Vietnam for operation but the legal bases for their operation were still absent. In face of such situation, the Council of Ministers (now the Government) issued on April 2, 1992, Decision No. 145/HDBT provisionally permitting the adoption by foreigners of Vietnamese children who are abandoned, orphaned or disabled in nurturing homes managed by the Labor, War Invalids and Social Affairs branch. The procedures for adoption of Vietnamese children by foreigners under this Decision had the following characteristics:
First, the management of foreign adopters of Vietnamese children rested with the Ministry of Labor, War Invalids and Social Affairs (MOLISA). However, that only children from nurturing homes managed by the MOLISA were permitted to be adopted by foreigners had given rise to the monopoly by some establishments and the unauthorized “gathering” of children from other localities into such establishments for adoption by foreigners.
Second, in the absence of legal provisions on this domain, numerous foreign child adoption organizations entered Vietnam for operation in different forms (under permits of the Vietnam Union of Friendship Organizations), thus causing difficulties to their management. These organizations hired and financed brokers to seek children under secret agreements which were hard to control.
Third, actual charges and costs related to child adoption were varied, leading to arbitrary agreements.
2. In the 1993-2002 period
On December 2, 1993, the National Assembly Standing Committee passed the Ordinance on Marriage and Family between Vietnamese Citizens and Foreigners, and on November 30, 1994, the Government issued Decree No. 184/CP, providing for procedures for marriage, recognition of out-of-wedlock children, child adoption and fosterage between Vietnamese citizens and foreigners. These legal documents constituted a uniform legal basis for the settlement of cases of adoption of Vietnamese children by foreigners. On May 25, 1995, the Justice Ministry, the Foreign Ministry and the Interior Ministry (now the Public Security Ministry) jointly issued Joint Circular No. 503/TT-LB detailing the implementation of Decree No. 184/CP. With these documents, the legal framework for the child adoption involving foreign elements was established rather adequately to regulate the settlement of adoption of Vietnamese children by foreigners.
According to incomplete statistics reported by localities throughout the country, in the 1990-1992 period, only 600 children were adopted by foreigners. This figure rose to as many as 15,288 in the next ten years (1993-2003).
During the 1994-2002 period when Decree No. 184/CP was enforced, Vietnamese children permitted for adoption by foreigners (excluding application dossiers settled in 2003) came largely from three sources: nurturing homes, medical establishments and families. The number of adoption cases in this period was the largest thanks to the “open” procedures which only required that children were Vietnamese citizens and aged under 15 years according to law. The adoption by foreigners of children from the said three sources showed certain pluses:
First, the recommendation of children from families, medical establishments or nurturing homes for adoption by foreigners without limitations to any specific groups of children, created legally equal opportunities for disadvantaged children to be adopted. Such a regulation did away with the discrimination between children in fostering homes or medical establishments and children in families, between children in mountainous areas and those in urban centers, which was compatible with the UN Convention on the Rights of the Child.
Reports from foreign adoptive parents showed that almost Vietnamese children adopted by those foreigners had quickly integrated themselves in their new families, been well fostered, cared for and guaranteed with their legitimate rights and benefits like children in host countries. The Justice Ministry did not receive any (official) information on the abuse of Vietnamese children adopted by foreigners for inhuman purposes.
Second, pending Vietnam’s official permission for domestic as well as foreign organizations to act as child adoption brokers or service providers, the permission for recommendation of children from the said three sources opened up opportunities for foreigners to personally enter Vietnam and seek children who meet their expectations before applying for adoption permission in a swift manner.
Third, socially, the permission for recommendation of children in special circumstances from families or abandoned in medical establishments for adoption helped solve difficulties and hardships for poor and large families or misled or unhappy women who gave birth to unwanted children or had no conditions to nurture and care for them.
Fourth, provincial/municipal Justice Services strictly observed legal provisions on principles, order and procedures for settling cases of child adoption by foreigners; improved their personnel’s skills of examining and verifying dossiers and inspecting conditions for child adoption according to the provisions of law; and guaranteed that child adoption is for the best interests of adopted children in the spirit of the UN Convention on the Rights of the Child. These were acknowledged as good practices which help create premises for implementation of Decree No. 68/2002/ND-CP as well as preparation for international integration in the domain of child adoption when Vietnam joins the Hague Convention.
Yet, minuses were also seen in the settlement of cases of adoption of Vietnamese children by foreigners in this period:
First, the permission for free travel, selection of and search for children by foreigners across the country made the management more difficult. Besides, some adoptive parents, who wished the job done as soon as possible, were willing to pay “remunerations” in cash or in kind to any Vietnamese individuals or organizations for their help in seeking children. This led to the misperception and wrong valuation of purposes and significance of child adoption, and the emergence of rings of child adoption intermediaries and brokers, thus making the maintenance of social order and security more difficult and complicated.
Second, some domestic and foreign individuals and organizations disguised themselves under various names for illegal brokerage or service provision activities in this domain for profit-seeking purposes, having given rise to the illegal purchase and sale of forged papers and gathering of children.
Third, ethnic minority people in mountainous, deep-lying and border regions, due to their economic, legal ignorance and low intellectual level, were not fully aware of the significance of child adoption and, therefore, were persuaded by bad persons to sell their children to foreigners. This was really an alarming situation which adversely affected the implementation of the family planning policy and the local socio-economic development.
Fourth, the Vietnamese State signed in 2000 the Agreement on Child Adoption Cooperation with the French Republic (the first to sign with Vietnam). After this Agreement was enforced, two legal frameworks on child adoption involving foreign elements existed: for French citizens, the said Agreement would apply; for citizens of other countries, Decree No. 184/CP would be complied with.
Under the said Agreement, French citizens were allowed to adopt children from nurturing homes (designated by provinces). Their application dossiers were sent through the French International Child Adoption Agency (MAI) and the French Embassy in Hanoi to the Justice Ministry. For citizens of other countries, the procedures specified in Decree No. 184/CP still applied then (they might adopt children from the said three sources after submitting dossiers directly to municipal Justice Services). This created inequality in child adoption in Vietnam, which led to the fact that only after nearly two years 2,000 dossiers of application for child adoption were left unsettled at the French Embassy in Hanoi.
Fifth, the Justice Ministry performed the state management under the Government’s Decree No. 38/CP of June 4, 1993, having the function and task of assisting the Government in unified management of civil status nationwide, including child adoption involving foreign elements. The Justice Ministry assigned this task to the Department for Management of Notary Public, Assessment, Civil Status, Nationality and Judicial Records (called the Notary Public and Civil Status Department for short). In fact, the Notary Public and Civil Status Department already assumed many tasks; hence the management of foreigners adopting Vietnam children met with many difficulties and limitations.
3. From 2003 to date
After the National Assembly passed the 2000 Marriage and Family Law, the Government issued on July 10, 2002 Decree No. 68/2002/ND-CP, detailing the implementation of a number of articles of the Marriage and Family Law on marriage and family relations involving foreign elements, which contain the following substantial changes in principles, order and procedures for adoption of Vietnamese children by foreigners:
a/ Principles for child adoption
First, foreigners are allowed to adopt children only in the spirit of humanitarianism, aiming to ensure the best interests of children and the respect for their fundamental rights. It is strictly forbidden to take advantage of child adoption for the commercial purposes, exploiting their labor, sexually abusing or trafficking in them, or for other self-seeking purposes.
Second, Vietnamese children are adopted only by citizens of foreign countries which have signed with Vietnam agreements on child adoption cooperation or have together with Vietnam acceded to treaties on child adoption cooperation. In exceptional cases, adoption may be permitted only if foreign adopters have resided in Vietnam for at least 6 months or more and apply to adopt children who are living with their families, orphaned, disabled or relatives of such adopters.
b/ To be adopted children
Children permitted to be adopted include only those living in nurturing homes lawfully set up in provinces or centrally-run cities, and those living with their families orphaned, disabled or relatives of child adopters.
Decree No. 68/2002/ND-CP does not permit the adoption by foreigners of children abandoned in medical establishments and children living with their families in normal circumstances.
c/ Permission for foreign child adoption organizations to operate in Vietnam
Under Decree No. 68/2002/ND-CP, child adoption organizations of countries having signed agreements with Vietnam or together with Vietnam, acceded to treaties on child adoption cooperation, which satisfy all the required conditions, will be licensed by the Justice Ministry to set up foreign child adoption offices in Vietnam to assist the application for adoption of Vietnamese children for humanitarian and non-profit purposes.
Humanitarian assistance activities of foreign child adoption organizations in Vietnam have achieved positive results. By the end of 2005, the Justice Ministry had licensed 25 foreign child adoption organizations. These organizations have lawfully operated and adhered to the humanitarian and non-profit principles and helped many Vietnamese children be adopted by foreigners. They have also worked out programs and projects on humanitarian assistance to Vietnamese child nurturing establishments in localities where they operate. According to preliminary statistics, in 2004 alone, foreign child adoption organizations provided humanitarian assistance to 40 child-nurturing and social relief centers in nearly 30 provinces and centrally-run cities with an estimated total value of around USD 620,000, which rose to USD 930,000 in 2005. These amounts have been used by nurturing establishments for building, repair and upgrading of their offices, purchase of medicines and medical instruments, provision of medical examination and treatment for children and job training for teenagers and partial support for payment of wages to their officials and employees.
d/ Establishment of the International Child Adoption Agency (ICAA) under the Justice Ministry
The ICAA was established under the Justice Ministry to assist the Justice Minister in performing the state management of child adoption involving foreign elements and handle dossiers of application for child adoption. It acts as Vietnam’s central agency in charge of international child adoption under agreements on child adoption cooperation between Vietnam and foreign countries as well as the focal point for the implementation of such agreements.
e/ Settlement order and procedures
First, regarding the procedures for submitting dossiers: All dossiers of application for child adoption should be submitted at the ICAA. For countries which have signed with Vietnam agreements on child adoption cooperation, the dossiers must be certified by such countries’ central agencies in charge of child adoption and submitted by concerned child adoption organizations to the ICAA. For countries which have not yet signed agreements with Vietnam, the dossiers of application for adoption of children by name shall be directly submitted by child adoption applicants at the ICAA.
Second, either of the following dossier-handling modes shall be applied:
- In case of application for adoption of children by their names: After examining complete and valid dossiers, the ICAA will notify the concerned provincial/municipal Justice Services, which will subsequently guide nurturing establishments or blood parents in compiling and submitting dossiers of such children. Provincial/municipal Justice Services will report the cases to the ICAA, which will later consider dossiers of children and forward dossiers of adoptive parents to provincial/municipal Justice Services for submission to their provincial/municipal People’s Committees for decision.
- In case of application for adoption of children not by name: the ICAA will inform the cases to the concerned provincial/municipal Justice Services, which will subsequently guide nurturing establishments in recommending children to be adopted and, after being notified by the latter of recommendation results, inform such results to the ICAA for notification to adoptive parents. After getting consents of adoptive parents, the ICAA shall notify such to provincial/municipal Justice Services for guidance on compilation of children’s dossiers (as for cases where children are adopted by name) by nurturing establishments.
Third, the procedures for handover and reception of adopted children will be carried out only after legal procedures are completed and when all adoptive parents are present in Vietnam for reception. If either of the adoptive parents is absent, a lawful letter of authorization is required.
Fourth, the time limit for handling a dossier of application for adoption by foreigners of a Vietnamese child is 120 days. The time limit for a case of adoption where police verification is requested may be extended but must not exceed 150 days. Police will only verify dossiers when requested by provincial/municipal Justice Services.
Fifth, dossiers shall be kept at the ICAA. After completely settling a case of child adoption, the provincial/municipal Justice Service will send a complete set of dossier to the ICAA for filing.
Since early 2003, child adoption cases have been settled mainly for citizens of the countries which have signed with Vietnam agreements on child adoption cooperation, including France, Denmark, Italy, Ireland, Sweden, the United States of America and Canada. Particularly for agreements already signed with three language communities in Belgium and Switzerland, the two sides are completing ratification procedures for them to come into force.
According to ICAA statistics, in 2004, 456 Vietnamese children were adopted by foreigners (360 by French people). In the period from January 2005 to September 30, 2005, the figures were 792 and 512 respectively, of which just a small number of children (over 20) were exceptionally permitted to be adopted in the countries which have not yet signed agreements with Vietnam, largely by overseas Vietnamese who are relatives of such children.
The settlement of child adoption cases has helped secure the uniform and principled enforcement of international treaties, and has been considered the last resort as no surrogate families for children can be found in Vietnam, and would only be carried out in the spirit of humanitarianism, thus ensuring the best interests of children and the respect for their fundamental rights.
However, after three years of implementing Decree No. 68/2002/ND-CP, the settlement of cases of adoption of Vietnamese children by foreigners has revealed some problems:
First, unsettled dossiers of application for child adoption are piling up: In the course of settling child adoption cases (on the principle that people wishing to adopt children are not allowed to personally seek children but must go through licensed child adoption organizations), the matching of dossiers of to be-adoptive parents and those of children is currently carried out mainly by child-nurturing establishments. The number of children recommended for adoption is not enough to satisfy the growing demand of adopters. The “shortage” of children is attributable to many reasons, one of which is the dependence on humanitarian financial aid of foreign child adoption organizations for nurturing establishments, which have been unable to admit more children due to the lack of funds for nurturing and caring for them, whereas the State allocates only VND 150,000 per child per month. This situation leads to slow dossier matching and pile-up of unsettled dossiers, especially those of French and Italian citizens.
Second, the number of foreigners eligible for application is child adoption is limited: On the principle that child adoption cases may be settled under bilateral agreements or treaties, Decree No. 68/2002/ND-CP puts up a ban against most of foreigners permanently residing in countries which have not yet signed child adoption agreements with Vietnam.
Third, powers of the ICAA are limited, and not on a par with those of the existing central agencies in charge of international child adoption in many countries: Under the current law of Vietnam, the ICAA under the Justice Ministry, empowered only to perform the state management function and directly participate in the consideration and settlement of specific dossiers, is not authorized to make final decisions on permission for foreigners to adopt children.
Fourth, operations of foreign child adoption organizations in Vietnam see many limitations: At present, foreign child adoption organizations are operating in Vietnam with low efficiency, and there appears an unfair competition among them, thus causing difficulties to the recommendation of children to be adopted and impeding the state management in this domain. Also, the foreign child adoption organizations’ capability of providing technical assistance and financial aid to nurturing establishments has not yet satisfied the localities’ needs, greatly affecting the expansion of their operations to other localities.
Fifth, Vietnam has no domestic-child adoption agency: In most countries, the assistance for domestic or foreign child adoption applicants is provided by authorized child adoption or not-for-profit humanitarian organizations, e.g., organizations authorized to assist central agencies in charge of international child adoption in conducting operations within the framework of the Hague Convention. Many countries, including also countries of adoption and countries of origin, have permitted the setting up of domestic child adoption agencies. Vietnam, however, has not yet permitted any domestic organizations to operate in the domain of child adoption. Therefore, many professional operations, which should have been socialized, are still carried out by state agencies (both central and local). This has made the State’s burden heavier and impeded the enforcement of child adoption cooperation agreements.
Sixth, no mechanism for transparently handling financial matters in the domain of international child adoption is in place: To date, apart from regulations on a child adoption fee of VND 1,000,000 to be collected by provincial/municipal Justice Services, there exists no legal document which clearly, publicly and transparently provides for expenses or financial aid in the domain of child adoption, thus causing difficulties for state management work in general. This may also make foreign individuals and organizations perplexed and unconfident in Vietnam’s humanitarian policies and laws on child adoption.
4. Some measures to enhance state administration and settlement of child adoption involving foreign elements in Vietnam
In order to enhance state administration and settlement of child adoption involving foreign elements in Vietnam, especially in the context that Vietnam is preparing to accede to the Hague Convention on Child Adoption, we propose the application of the following comprehensive and radical measures:
4.1. Perfecting the child adoption law to suit the principles of the Hague Convention, international standards and practices
Under the principle of “Pacta sunt servanda,” Vietnam is required, upon its accession to the Hague Convention, to amend its law to suit the Convention with regard to “jus cogen” provisions, which are binding on all contracting parties and require:
-Any measures applied to protect children should aim to ensure the best welfare and interests of children and promote the exercise of their rights;
-The children’s priority right to be cared for by their natural parents should be respected. Where children are, for any reason, not cared for by their natural parents, competent authorities and organizations should be responsible for protecting them and considering different long-term options to help the children have a happy family life, including such alternatives as adoption, guardianship or care by nurturing homes. The child adoption should give rise to a parent-child relationship;
-Children should be adopted by persons other than their relatives only when appropriate families are found;
-Priority should be given to domestic adoption of children; adoption of children by foreigners should be the final solution where no substitute families can be found in the native country (Vietnam); and,
-Child adoption should not be regarded as a business for illicit profits; child abuse and trafficking should be strictly handled.
The provisions of domestic law on child adoption must not be contrary to the foregoing principles. Therefore, an important requirement at the moment for Vietnam is that domestic legal provisions should be studied, reviewed and compared with the principle provisions of the Hague Convention to sort out incompatible points to be amended, supplemented or annulled.
As a native country (country permitting children to be adopted), Vietnam should perfect its law according to international standards and common practices applied by native countries of adopted children within the framework of the Hague Convention.
4.2. Perfecting the child adoption law to ensure its completeness, consistency and enforceability
Child adoption involving foreign elements is directly related to many legal institutions on civil affairs, marriage and family, civil status registration, child care and protection, nationality, entry and exit, etc. However, Vietnam’s current law governing child adoption relations in general and child adoption involving foreign elements in particular remains inadequate and incompatible with laws of many countries in the world, especially the contracting parties to the Hague Convention, as well as international practices. Therefore, the perfection of child adoption law requires a comprehensive improvement of all institutions relating to child adoption relations. In our opinion, the situation should be addressed through the following:
First, the perfection of substantive legal provisions governing child adoption relations. Current substantive legal provisions governing child adoption relations have been formulated largely in the form of principles and provisions seen here and there in the 1992 Constitution and other legal documents. For instance, the 1992 Constitution stipulates “the State protects marriage and family... the State and society do not recognize the discriminatory treatment of children” (Article 64); “Children are protected, cared for and educated by families, the State and society” (Article 65); “Helpless orphans are supported by the State and society” (Article 67). The 2005 Civil Code provides in Article 44 the right to adopt a child and the right to be accepted as an adoptive child: “An individual’s right to adopt a child and right to be accepted as an adoptive child shall be recognized and protected by law. The adoption of a child and the process of being accepted as an adoptive child shall comply with the provisions of law.” In the 2000 Marriage and Family Law, the child adoption matter was dwelt on in Articles 67 thru 78. In comparison with child adoption laws of other countries, Vietnam’s child adoption law lacks many substantive provisions, especially those on specific conditions for child adoption (for adoptive parents, for to be-adopted children), modes of child adoption, legal aftermath of child adoption, etc.
Second, the perfection of conflict-of-law legal provisions governing child adoption relations. Current conflict-of-law legal provisions on child adoption can be found mostly in the 2000 Marriage and Family Law (Article 105) and Decree No. 68/2002/ND-CP (Article 37). Unlike foreign laws, Vietnam’s law still has no conflict-of-law provisions on conditions for children to be adopted; modes of child adoption; legal consequences of child adoption; relationship of adoptive parents and adopted children; termination of child adoption; recognition of decisions on child adoption. etc.
Third, the perfection of legal provisions on procedures for settlement of child adoption-related matters. At present, the procedural provisions (judicial-administrative procedures) on child adoption registration are largely contained in Decree No. 68/2002/ND-CP, which, however, still lacks provisions guiding in detail the child adoption registration. In enforcement practice, the Justice Ministry had regularly to provide instructions to localities, thus making the law application and enforcement more difficult.
Fourth, the close interrelation and association between law on domestic child adoption and law on child adoption involving foreign elements. These two domains should have been closely attached together, logically interrelated and pertaining to a harmonious system of child adoption institutions, but it is regrettably not so in reality. So far, we have only paid due attention to international child adoption while leaving domestic child adoption inadequately governed.
4.3. Specific measures
a/ Vesting more powers in the central agency
The agency “specializing” in international child adoption in Vietnam is the International Child Adoption Agency (ICAA) under the Justice Ministry which was established in August 2003. Under the Marriage and Family Law and Decree No. 68/2002/ND-CP, the adoption of Vietnamese children by foreigners is effected through administrative procedures, e.g., issuance of decisions of provincial-level People’s Committees signed by their presidents. The ICAA only functions as a state management agency in charge of child adoption involving foreign elements (throughout the country) and is directly engaged in some “steps” of the process of settlement of child adoption. It does not issue final decisions on permission for foreigners to adopt Vietnamese children. Such a decentralization of powers has led to the situation that some localities gave themselves the exclusive right to permit children to be adopted by foreigners, put forth many troublesome requirements and formalities and made financial claims and requests with regard to the settlement of child adoption. In the view of many countries, especially the contracting parties to the Hague Convention, the ICAA is not a central agency in charge of international child adoption after the model provided for by the Hague Convention. As required by the provisions of the Hague Convention and practices in its contracting parties, each of them should have a central agency in charge of international child adoption which is fully authorized, capable and responsible for international child adoption.
b/ Permitting the socialization of a number of activities in the domain of child adoption
Laws and practices of many countries show that child adoption is related to many social issues and should, therefore, be socialized. Most of them have established non-governmental organizations to conduct humanitarian and charity activities in the domain of child adoption. The socialization of activities related to child protection and child adoption would importantly contribute to overcoming difficulties and solving problems which usually confront state authorities, especially in financial matters and professional operations of caring for and nurturing children in special circumstances. As a result, many social organizations and socio-professional organizations may be mobilized to participate in child protection, with their role brought into the fullest play. As Vietnamese law has yet permitted the establishment of a Vietnamese non-governmental organization to operate in the domain of child adoption, all the jobs relating to child care and nurturing, recommendation of children to be adopted, completion of child adoption procedures, verification of family status and origin of children, etc., have been performed by child nurturing and protection centers, provincial/municipal Justice Services and police offices. In the process of Vietnam’s accession to the Hague Convention on Child Adoption, such burden is likely to become heavier, thus restricting the possibility of settling child adoption cases and meeting state management requirements.
c/ Perfecting the financial mechanism
At present, due to the absence of a legal document explicitly and transparently stipulating charges and humanitarian support in child adoption, many nurturing homes have required at their own will humanitarian aid to be provided at different levels, thus preventing foreign child adoption organizations from providing adequate humanitarian aid and financial support according to the provisions of law and concluded agreements. Many foreign child adoption organizations and adoptive parents have complained about this inconvenient situation. To put an end to this situation and make financial matters in the domain of international child adoption more open and transparent, it is necessary to perfect the legal documents on fees, charges, collection, payment, management and use of humanitarian aid provided by foreign child adoption organizations to local nurturing homes. At the same time, there should be a mechanism for closely inspecting and supervising financial revenues and expenditures in compliance with accounting and statistical regimes and the provisions of law. Only so can humanitarianism in the settlement of child adoption be assured.
d/ Perfecting a database for management of information on child adoption
To date, Vietnam has yet to apply information technology to state administration of child adoption. For accession to the Hague Convention, the formation and operation of a computer database on child adoption is necessary. The processing and handling of child adoption dossiers and supervision of the dossier-processing progress should be performed in a modernized manner. This would importantly and actively serve statistical and reporting works according to international requirements for Vietnam’s accession to the Hague Convention.
e/ Building capacity of civil servants to perform their duties
Capacity of ICAA personnel and local justice officials should satisfy the requirements of state administration and settlement of child adoptions, especially when Vietnam accedes to the Hague Convention.