Court submission on the ‘orphan-making’ process (Part 2)

A diagram showing system of “orphan-making” / Courtesy of Lee Kyung-eun

The following text is the second piece of the Amicus Brief submitted to the Korean Court to assist the judges in understanding the historic meaning of this case. Special mention and appreciation must go to Raymond Ha (M.A. ’21, Stanford Univ.), Hyejin Jang (B.A. ’21 Princeton Univ.), Do Yon Lena Kwon (J.D. Candidate ’22, Penn Law), Hailey M. Lee (J.D. Candidate ’24, Penn Law), and Lydia Lim (J.D. ’21, Penn Law) for fully translating this 70-page brief into English as an act of solidarity for the rights of adoptees. ― ED. By Lee Kyung-eun

Question: In the plaintiff’s case, his inter-country adoption was processed through the creation of an “abandoned child” family register, even though the agency knew and had information about his biological mother. What is the process of adopting through the “Family Registration for Orphans,” and why has it become a customary practice of adoption between the Republic of Korea and the United States?

Answer: The U.S.’ orphan regulations and the Korean government’s orphan certification process are key elements of inter-country adoption between the two countries.

This legislation begins with defining an orphan and granting it a particular status in U.S. immigration law and Korean adoption law, as discussed in the previous article. Korea’s 1961 Immigration and Nationality Act sets out several requirements regarding the acquisition of “orphan” status. These requirements include the death or disappearance of the parents, abandonment by the parents and cases in which a single parent is incapable of raising a child and offers the child up to be sent to a foreign country. While the earliest refugee orphans in 1948 were strictly limited to cases in which both parents were dead or disappeared, the 1961 INA expanded and eased the scope of the definition of an “orphan.” It is reasonable to view the clause as having been revised in accordance with Holt’s international adoption practices since the 1950s, rather than the law having first affected adoption practices.

Among these conditions, the Korean government prepared the immigrant visa documents for the adoptees to meet the criteria of being “abandoned orphans.” To understand the reason behind it, we must consider the procedures on the U.S. side. To undergo the process of immigration according to the U.S. federal government and state courts, the required documents by law must be issued through an official process by credible institutions. Among the requirements for orphans laid out by U.S. law, documents that can be issued through the Korean government include the “Family Registration for Orphans,” an official document issued to children who were found abandoned.

Three documents, the “Family Registration for Orphans,” the “Certificate of Legal Guardianship Designated by Adoption Agency Director,” and the “Certificate of Orphanhood,” were issued by either the mayor of Seoul or the head of the district where the adoption agency was located, in accordance with the city of Seoul’s guidelines on family registration. Among the adoptees’ documents, we can see that these documents were issued as if they were being mass-produced.

The ultimate purpose of the documents issued in the Republic of Korea was to obtain the final decision of the adoption proceedings in the U.S. state court and qualification for entry. The three documents listed above have no room for discussion about their legal effects and are of no use inside Korea. They are designed only to be filed in the U.S. State Department and state courts. There is a high possibility that the existence of such documents in Korea was not recognized, except by a few ward offices where large adoption institutions in Seoul were located.

The fact that those documents were provided by the public authorities of Korea does not mean that the process was legitimate. The lawfulness of such a practice has not been tried in the Korean judicial court. Considering the purpose of the act and system of national birth registration, such practices should be ruled illegal and as abuses of the power endowed by laws.

Question: What kind of statistics are available on children who were sent to the U.S. for adoption with the Family Registration for Orphans?

The number of Family Registrations for Orphans issued, according to the Judicial Almanac, and the number of inter-country adoptees presented by the Korean Ministry of Health and Welfare, have been almost identical for decades.

The following table compares the number of child-only family registrations issued after reports of abandoned children by the Family Registration Act, with the number of inter-country adoptions for each year since the court administration began to publish the Judicial Almanac in Korea.

These two numbers are completely different in terms of their applicable acts, collection methods and subjects, and the correlations between them have never been reviewed before. But once we compare these two numbers side by side, it is evident that they are incredibly related.

Table: Comparison between the numbers of family registrations issued after abandoned child reports and international adoptions

Since 2012, the number of abandoned children has decreased, and the correlation between the two numbers appears to have faded. This situation can be interpreted as reflecting the fact that adoption agencies were no longer be able to utilize false abandoned child reports pursuant to the revision of the Civil Law and the Special Adoption Act, and the fact that there were changes to the procedure to review birth certificate documents in Korean courts, though not in U.S. courts. According to the Judicial Almanac, the district offices that produced the most abandoned child reports are located in the same districts as the major adoption agencies in Seoul. This fact also shows how the Family Registration for Orphans and inter-country adoption is connected. The implications of the table above suggest that it is necessary to investigate thoroughly whether inter-country adoption was a system to find a home for orphans or to produce orphans for the sake of adoption. Abandoned child reports must be handled by police investigation because child abandonment is a punishable crime under Korean criminal law. However, the directors of certain facilities, such as orphanages and adoption agencies, are authorized to take exceptional measures, such as reporting abandoned children and requesting the creation of new family registrations. This system shows that, although child abandonment measures and abandoned child reports should have functioned to protect children from the threat to life by abandonment crimes, the process operated illegally for decades to facilitate inter-country adoption. This reality amounts not to a problem confined to inter-country adoption; it is a serious human rights violation that distorts the entire national birth registration system. Lee Kyung-eun (Ph.D. in law) is the director of Human Rights Beyond Borders and author of the Korean-language book, “The Children-selling Country,” and the English book, “The Global Orphan Adoption System; South Korea’s Impact on Its Origin and Development.”

*This article was originally published in The Korea Times