A Position Statement from Joint Council on International Children’s Services: Vietnam’s Special Needs and Waiting Children
On September 1, 2008, the Memorandum of Agreement (MOA) on international adoption between the United States and Vietnam expired. The cessation of this agreement left over 600 Potential Adoptive Parents (PAPs) disappointed, saddened and unable to continue their adoption process with Vietnam. It is Joint Council’s understanding that if a child was referred prior to September 1, 2008, and that referral was approved by the Vietnam Department of Intercountry Adoption (DIA), the adoption can proceed to completion. It is also our understanding that as of September 1, 2008, new applications cannot be filed with Vietnam and U.S.-based Adoption Service Providers are not currently licensed to facilitate new cases.
Can a Child With Special Needs Still Be Adopted from Vietnam?
Over the past few weeks, Joint Council has received several inquiries into the possibility of adopting a Vietnamese child with Special Needs, or a Waiting Child. Vietnamese law does allow for the adoption of a child with Special Needs, despite the expired MOA. However, this Special Needs adoption, if pursued, would have to take place as an independent adoption. An independent adoption is conducted without the involvement of a U.S.-based Adoption Service Provider. The adoption would, therefore, be facilitated by an individual, agent or attorney in Vietnam that is neither regulated nor accredited. Furthermore, while the law does provide for the adoption of a child with Special Needs, it does not provide for a definition of what ‘Special Needs’ entails and does not provide for oversight or regulation of the process or persons involved.
While we sympathize with Potential Adoptive Parents who are deeply disappointed because of the expired MOA, as well as those who strongly support the adoption of Special Needs children from Vietnam, in the best interests of the child, birth family and adoptive family, Joint Council strongly discourages the pursuit of an independent Special Needs adoption at this time. This recommendation will remain in effect until there are adequate protections for children and families under a new MOA, and/or the placement of children with Special Needs will not hamper the successful negotiation of an MOA between Vietnam and the United States.
Joint Council’s position is based on the following:
- An independent, Special Needs adoption of a child from Vietnam does not currently involve governmental, agency or legal oversight of the process and is therefore susceptible to abuse.
- The use of a U.S.-based Adoption Service Provider (i.e., Adoption Agency) guarantees an adoption process in accordance with U.S. State and Federal requirements. An independent adoption process does not guarantee these safeguards and protections.
- There is no standard fee or payment schedule for independent Special Needs adoptions. As such, there is again a lack of protections for birth and adoptive families.
- The lack of specification of ‘Special Needs’ could potentially lead to abuses including classifying children inappropriately.
- An independent, Special Needs adoption lacks both pre- and post-adoption education, support and resources. The lack of education can result in adoptive parents who are potentially unprepared to deal with an adoptive child’s health, the child’s institutionalization and developmental challenges, the raising and rearing of culturally separated and transracial individuals, and a general lack of awareness of the bureaucratic and cultural norms involved in adopting a child from Vietnam. Further, adoptive parents might also lack important and necessary post-placement support and resources because they are missing a connection to a network of Adoption Service Providers.
- The potential for unethical practices, unregulated processes, a lack of education and long-term support all could negatively impact the relationship, identities and self-worth of all members of the adoption triad.
Cumulatively, these factors suggest that independent, Special Needs adoptions could create an environment that increases the possibility of illegal, unethical adoption practices. Therefore, Joint Council strongly discourages the pursuit of Special Needs adoptions from Vietnam at this time.
The Vietnamese government is working diligently to protect the rights of Vietnamese families, children and adoptive families. Unfortunately, Vietnamese law does not give the government the necessary tools to adequately regulate Special Needs adoptions at this time. As safeguards and protections are added to the adoption process, Joint Council will reconsider its position on Special Needs adoptions.
Current Status of Vietnam-U.S. Adoptions
The governments of Vietnam and the U.S. are currently negotiating a new MOA and are seeking to implement the principles of the Hague Convention in the MOA and through ratification. It is Joint Council’s understanding that negotiations are continuing, with both governments desiring to craft an MOA that will ensure that the rights and safety of all members of the adoption triad are protected.
However, the pursuit of independent, Special Needs adoptions that fall outside of governmental and legal oversight, could derail negotiations. Because the independent adoption process of Vietnamese children with Special Needs runs completely counter to the intentions of both the governments of Vietnam and the United States, any attempts by Potential Adoptive Parents to circumvent governmental, agency and Hague stipulations might be seen as a breach of trust and fidelity- not to mention the risk it poses to other orphaned children in need of a forever family.
At the same time, negotiators for both the Vietnamese and United States governments are aware of the Vietnamese law allowing for independent Special Needs adoption and have made this topic a central point in their negotiations. Finding ways to support the good intentions of those who wish to adopt a child with Special Needs, providing the child with health and social support, as well as ensuring that safeguards are in place for the child, the birth families and the adoptive parents is of utmost importance to negotiators.
Joint Council and Vietnam-U.S. Adoptions
Joint Council finds this to be a difficult stance to take. We advocate vociferously for the right of every child to a safe, loving and permanent home, especially those children with Special Needs. However, finding a safe, loving and permanent home is made exceedingly difficult in a process that is highly susceptible to corruption. Furthermore, this process should not be one that exposes members of the adoption triad to unnecessary risks and potentially negative consequences, both now and in the future.
In addition to discouraging Potential Adoptive Parents from the pursuit of an independent, Special Needs adoption, Joint Council also strongly urges them not to accept a referral of any Vietnamese child from any source at this time. Any referral made after September 1, 2008, is not guaranteed compliant with Hague principles, the intents of the Vietnamese and U.S. governments, or the best interests of the child. As noted earlier, our recommendations will remain in effect until there are adequate protections for children and families under a new MOA, and/or the placement of children with Special Needs will not hamper the successful negotiation of an MOA between Vietnam and the United States.
Joint Council continues to view the suspension of intercountry adoption between the United States and Vietnam as a tragedy for children and for the families willing to provide a loving home for them. We remain confident that an interim MOA is achievable. Joint Council reiterates that considerable steps have been taken by both the Vietnamese and the United States governments toward this end. Given our concerns regarding potential abuse related to independent, Special Needs adoptions, it is Joint Council’s goal to ensure a new MOA is in place so that all children in need can find a safe, permanent and loving family.
Joint Council and its Member Organizations remain committed to the children and families of Vietnam and continue to work closely with both governments. Our top priorities in Vietnam are the completion of existing adoption cases and ensuring that a new MOA is in place, so that all children in need can find a safe, permanent and loving family.
We encourage a continuation of care and support for Vietnamese children with Special Needs. Every effort must be made to find safe, permanent and loving families for Special Needs children. However, these efforts must be limited to domestic resources, such as organizational aid or domestic adoption within Vietnam, at this time.
If you would like to support the children we serve, please continue to educate yourself on the status of a new MOA and support these negotiations. Also consider supporting children with Special Needs through a reputable child welfare organization. Many organizations provide ongoing care for Vietnamese children, including some of Joint Council’s member organizations. Joint Council, again, strongly urges that all refrain from adopting a Vietnamese child with Special Needs at this time, and instead support children in need through a reputable child welfare organization.