Think of the children!

Children's rights in Russia and geopolitics, a decade after the Dima Yakovlev law

On the occasion of the 10-year anniversary of Russia’s “Dima Yakovlev law”, Meduza has published an article recounting the political shifts at the time: mass protests, anger at the Magnitsky Act, Putin’s return to the presidency after the Medvedev interlude. The law, named for a Russian boy who died after his American adoptive father accidentally left him in a hot car, stopped adoption of Russian children by Americans.

It’s a reminder of a time, a decade ago, that now feels very distant and different. But some things have stayed the same, remarkably so, as if freeze-dried: the reaction of Russia’s liberal elite, back then still well-represented in elected office as well as firmly in control of the most prominent civil society circles and independent media. It showed their profoundly lop-sided, anachronistic, deficient and defeatist understanding of human rights and especially children’s rights. They described the stop to intercountry adoptions as “beyond the pale”, barbarity”. Deputies voting for the ban were denounced as “beasts” by protesters. Apparently and interestingly, this position was shared even by high-ranking government officials, including FM Lavrov.

The same deeply ingrained assumptions from 2012 are still on view: that a child’s material circumstances are synonymous with its well-being; that improving material conditions is therefore always in the child’s best interest; that only life in the West could offer these children such material well-being; that Westerners are better adoptive parents; that children are a blank slate whose familial, community, cultural and national identity could be wiped away with no harm done, or in any case be traded at no loss for those improved material circumstances; that in Russia orphaned/abandoned/disabled children would always languish in horrid, abusive institutions, deprived of any chance at love, care, nurturing and inclusion, as if this was some inescapable law of nature and not the result of deliberate policies. All very хорошо там, где нас нет (“it’s better where there aren’t any of us” - a Russian expression with origins in 19th century literature).

The Meduza article cites Russian sources close to the adoption of the law. Nothing they say sounds like they have moved on, changed their mind, taken an interest in contemporary thinking on children’s human rights or comparative global policy-making.

Back in 2012, Russian liberals’ global echo chamber of international human rights organizations chimed in, repeating how cruel and unjust the end of intercountry adoptions would be for children. But they, at least, should have known better. Because the thinking on children’s rights and intercountry adoption had been changing long before 2012, with international human rights experts in the lead. Even the European Union had already taken a diametrically opposed position towards membership candidates more than a decade earlier.

A quick recap of the facts, for those who don’t remember just how prominent the issue of Westerners adopting post-communist children was throughout the 1990s and 2000s. Across the Soviet Union and communist Eastern Europe, a comparatively large share of children were being placed in institutional homes (sometimes, without irony, referred to as “closed institutions”) - homes for orphans and abandoned children, boarding schools, residential homes for children with disabilities.

There were complex reasons for it, not all sinister or signs of social malaise. It was widely believed that children with special needs would benefit from receiving “specialized care”, or that this was the only way to provide schooling to children from remote settlements. But in part, this institutionalization reflected darker realities and objectives - ableism, segregation, “civilizing” and assimilating indigenous communities, hiding mental health problems and stigmatizing sufferers, even punishing deviant, dissident parents by taking their offspring. Many of these prejudices and policies were prevalent in the West for much of the 20th century, too, until tenacious activists started chipping at them. Which remains unfinished business.

Post-communism, roughly speaking, these prejudices and institutions persisted across the region, while massive social dislocation and its fall-out, from substance abuse to labor migration, eroded parents’ ability to care for their children. Children’s homes continued operating at capacity. When Russia invaded Ukraine, news of entire orphanages being evacuated reminded international audiences that more than 100,000 Ukrainian children, or around 1% of all Ukrainian children, live in orphanage-style homes.

Back in 2012, both sides’ discourse around the Dima Yavkovlev law felt insincere and opportunistic. One side, the Russian leadership, was seething after the Magnitsky Act. The topic of intercountry adoption was already a well-developed sore point with Russian conservatives and nationalists, with several tragic incidents providing water to their mill. Dima Yakovlev had died in 2008, and then in 2010, an American adoptive mother put a 7 year-old boy back on a plane to Russia, with a note in his backpack about how she could no longer parent him. For Russia’s leadership, the Dima Yakovlev law was a way to punish America and throw a bone to the nationalists at the same time.

On the other side, Russian liberal elites and their Western allies lined up to express their shock and indignation at this supposed cruelty towards all these children, who would now be deprived of a better life. Deprived of their rights!

I thought at the time that this was either ignorant or insincere. Even if they didn’t follow contemporary debates about children’s rights and intercountry adoption, they had to know about the Romanian precedent? I knew, and I was just a casual observer.

Why Romania? From 1967, deeply misogynist, natalist policies (prohibition of contraception and abortion, mandatory monthly gynecological check-ups etc) forced women to bear more children than they wished or could take care of. For about a decade, birth rates exploded and so did the number of children in state homes. Even though birth rates subsequently dropped, by the late 1980s, Western TV audiences saw heart-rending images of Romanian orphanages, with hollow-eyed, listless children in squalid rags. After the downfall of Ceaușescu, a booming intercountry adoption industry, rife with abuses such as buying children off poor women, sprang up and did brisk business with adoptive parents from Western Europe and the US.

There were parallels with Russia (and Ukraine etc.) in the 1990s: a history of institutionalizing children and a large “supply” of institutionalized children, social dislocation, poor regulation and oversight, an internalized sense of inferiority and expectation of salvation from abroad. And these children were also (perceived as) white and therefore especially desirable for American and Western European prospective parents.

But by 2000, Romania was negotiating its entry into the European Union. These are not “negotiations” in the ordinary meaning of the word; there is no back and forth, no haggling. Brussels presents a list of conditions which candidates have to absorb into domestic law. These conditions go beyond the 35 chapters of the acquis communautaire, the body of law adopted by the EU over the course of its existence and binding for all EU members: there is also a changing set of normative demands that ostensibly qualify a country as properly “EU-ropean”, but are not binding EU law.

EU-ropeanness is an ephemeral notion, encompassing standards of modernity, progress, democracy and human rights that the EU likes to think of as non-negotiable and cutting-edge at the same time. Romania’s mass export of its “abandoned” children, with its attendant corruption, exploitation, abuse and continued large-scale institutionalization, was simply not acceptable for a future EU member. So the EU told Romania to halt intercountry adoptions (2001) and provided assistance to build an alternative child protection system fit for the 21st century (2005): supporting vulnerable families so they could parent their children, complemented by domestic fostering and adoption and small, family-style group homes.

The EU’s demand to abolish intercountry adoption was not a trendy fluke. It originated in deeper debates and reframing of children’s rights during the 1990s, particularly the ideas codified in the UN’s 1989 Convention on the Rights of the Child (CRC). This isn’t the place for an overview of all its innovations, but in essence, it disposed of outdated, paternalistic notions, e.g. children’s main purpose is to grow into functioning adults, which can be achieved through a utilitarian approach to their best interests. The CRC places children at the center of their own, present lives, grants them full personhood and agency and obliges states to take proactive responsibility for their young residents’ rights.

In line with the principles of the CRC, children have a full right to national and cultural identity and family life, just like any adult would. The assumption that better material conditions or growing up in just any family automatically equal the "best interest of the child" no longer stands. Instead, losing national, cultural and family connections is recognized as traumatic, harmful and a violation of a child’s rights. To Americans, this will sound familiar. It echoes the vocal, anguished debate about transracial adoption, which used to be perceived as admirable color-blindness by white adoptive parents, but has more recently been reassessed as traumatic and a violent erasure of the culture of children of color.

According to the standards set by the CRC, intercountry adoption must only ever be the last resort, applied only after all other options are exhausted or domestic alternatives are genuinely not available. To drive home the point about “the last resort”: whether domestic alternatives are available or not depends entirely on a state’s political will. I.e. on its politicians.

In the 1990s, countries like Romania and Russia, instead of taking responsibility for children at home and investing in the creation of family support and child welfare policies, had tolerated and indeed accommodated the intercountry adoption industry. They had made it easier to designate children with living parents as “abandoned” and therefore eligible for adoption, and they did little or nothing to reduce institutionalization.

As the EU’s condition for Romania’s EU entry shows, by 2000 global consensus on children’s human rights and intercountry adoption had changed. More than a decade later, Russian human rights organizations should have known that - and reflected that in their human rights work (they did not, not as far as I could tell). Russian liberal politicians, elected to the Duma or serving in regional or federal government, had long had their chance to work towards an improved child welfare system in Russia, one that follows the standards set by the CRC (Russia is a state party) and takes genuine responsibility for their country’s vulnerable youngsters. I don’t remember any of them doing that. The way I remember it, Russian liberals have long been content to leave family, child welfare and social policies to conservative, nationalist politicians, or to elderly female deputies from the sticks, with big hair and clunky rhetoric.

Russian liberals’ loyal allies in Western human rights organizations had no excuse for not knowing the Romanian precedent. Knowing international human rights norms is literally their job. But when the Dima Yakovlev law was adopted, they, too, joined the chorus of mourners for these children’s lost bright future in America, instead of seizing the moment for a more nuanced conversation about the rights of the child and the obligations of a self-respecting state. It felt disingenuous and uncomfortable to watch. I found it no less opportunistic than the Russian government’s tactics.

2012 was, coincidentally, also the year when I became much more involved in children’s rights work in Russia. I began supporting grassroots activists working with pre-teens and teenagers. Observing these dedicated, innovative social workers engage with children, including those with disabilities, became one of my life’s great privileges and inspirations.

These women are giants of kindness and empathy. They think deeply about each child’s happiness, well-being and rights, and how their families and communities are an indispensable part of that. They move mountains for these children. They take an interest in every child’s personality, write fairy tales about her, follow her growth over years. They couldn’t care less about politics nor do they consider themselves part of the dissident elites that decried the Dima Yakovlev law. If they have heard of the Convention on the Rights of the Child at all, it would be because I mentioned it (that was my role in their work - technical support desk). And yet, the suggestion that a vulnerable child would be better off by being sent overseas, even if raised there in material comfort and by a loving adoptive family, would sadden and distress them. They would see it as a story of tragedy, trauma and loss, as a shameful, callous failure by their community and country. This is where grassroots activists’ hands-on experience and instincts align perfectly with the Convention on the Rights of the Child. Or with the EU’s condition for Romania’s accession.

But this isn’t a story about how the EU is wise and enlightened and Russia is irredeemable, so much so that even its liberal-progressive elites are hopeless, even a decade later (sorry-not-sorry if you came here for that). This is about how a true human rights agenda is radical and emancipatory. It can be hard to grasp, let alone stomach, for privileged elites. It is inherently irreconcilable with politics and especially geopolitics, with hierarchical or “us v. them” thinking. That proves a challenge for the EU, just as it does for Russian liberal elites and the Russian government.

Once Romania had joined the EU and became fully subject to the governance of its institutions and the mercurial politics of the European Parliament, the pendulum swung the other way and pressure to reopen intercountry adoption started building. Somehow and possibly by serendipity (a motivated Commission officer in right place at the right time etc.), fresh ideas about the rights of the child had made it into the enlargement process and had remained there, because the EU couldn’t change its policy during enlargement mid-stream.

But then business as usual resumed. International adoption agencies are powerful lobbyists, in the EU and also in the US, and they pushed Brussels and Bucharest to reopen intercountry adoption. Members of the European Parliament, attached to outdated notions of child welfare, called on the Commission to reverse course. Things got muddled as contradictory standards were adopted. Reforms in Romania present a mixed picture; institutionalization of children has dropped sharply, but domestic adoption is lagging.

When I talk to activists in EU candidate countries, I tell them that no one will ever care as much about their people’s human rights as they do. Certainly not the EU. For different reasons, I tell Russian activists the same.