Legally 'orphaned' to be adopted transnationally

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This article is the third in a series about Koreans adopted abroad. Apparently, many Koreans never expected that the children it had sent away via adoption would return as adults with questions demanding to be answered. However, thousands of adoptees visit Korea each year. Once they rediscover this country, it becomes a turning point in their lives. We should embrace the dialogue with adoptees to discover the path to recovering our collective humanity. ― ED.

By Lee Kyung-eun

Sun Hee Engelstoft, a movie director who is a Korean Danish adoptee, recently released in Korea a documentary film called "Forget Me Not." Engelstoft believes she knows her mother's name, and the circumstances of her relinquishment. Despite the likely true story about her birth, her official Korean birth registration document indicates that she was an "orphan" who was found "abandoned."

Normally, Koreans can easily check their birth registration document through the website of the Supreme Court, which contains the name, birth date, address of the birth place, as well as the name and identification number of the parent/s. But almost all Korean adoptees were given a so-called "orphan hojuk" (until 2012), a one-person document which lists the orphan as the head of her/his own family, and contains only the name of the child and birth date, plus the address of the Korean adoption agency. The orphan hojuk does not contain the birth parents' names or any biographical information.

There are two myths which have sustained the system of transnational adoption for so long here. One is that certain parents (i.e, unwed mothers) are not fit to raise their own children, and the other is that orphans are "saved" by adoption. Even if the parents were unmarried, if at least one of the parents is known, the child still has a living parent and may not be considered a true "orphan." Why were all children believed to be "orphans?" To explain and understand this discrepancy, people have devised concepts and terms such as "economic orphan" or "social orphan." The truth is that children were legally orphaned for the purpose of transnational adoption through the official government processes of the state of origin (Korea) and of the Western adoptive countries (primarily the U.S., Australia, and West European countries).

Surprisingly, "orphan" is a legal term. In the immigration law of the receiving country (I will take the U.S. as an example; however, other European receiving countries likely used the same system because Korean adoption agencies provided the same documents to those countries), the status of "orphan" was stipulated as an immigration qualification, such that Western citizens could bring orphan/s into the country for the purpose of adoption starting in 1961. In response to this measure, in the same year, Korea enacted a new law called the "Orphan Adoption Special Procedure Act," which lifted the restrictions of its traditional adoption, or "yang ja," system to facilitate the process in cases where a foreigner wanted to adopt Korean orphans. This is the beginning of the modern adoption system for children in Korea.

Transnational adoption is not only a matter of family relations ― it also involves the immigration process of the Western countries. The immigration authorities require official documents for immigrants. U.S. law allows the definition of an "orphan" to include children not only whose parents have died, but also who have been abandoned and relinquished by single parents. Among these possible categories, Korea chose to use the definition of an "orphan" by abandonment, in order for the Korean government to provide the required documents for immigration. Why? I assume that it was because this was the easiest route from the perspective of the public officials at that time. They may not have desired to undertake the long and winding legislative reform to embrace the modern adoption system for protection of the child into its general Family Law. Instead, they may have chosen the easiest way to have children recognized as "orphans."

So, the relevant laws have been providing the legal framework and procedure by which a child could be recognized as abandoned by the public authority. However, even this procedure was just nominal, and if the heads of orphanages or adoption agencies reported to the relevant district offices of the local government that a child was found "abandoned," then the issuance of an orphan hojuk was almost automatically processed.

In short, the state has deliberately and systematically hidden and erased the real identities of children. As a direct consequence, for all Korean adoptees, it is fundamentally impossible to know their real origin through the official document which was provided by both the Korean and Western governments when they were born and subsequently moved across borders. Consequently, so many adoptees have to undergo a harsh and often futile birth family search process by relying on the "unofficial" and presumably "private" documents kept under lock and key inside the adoption agencies, or alternately through DNA testing. Only with great effort and sparse luck are adoptees ever able to trace their true origins.

The Korean government officially acknowledged that more than 90 percent of the transnational adoptions involved children of unwed mothers. Official birth reports statistics, which began to be reported in 1976, show that until 2011 (for 35 years), the number of children reported as being found abandoned stood at 143,763. During the same period, the number of transnational adoption stood at 133,531. A whopping 92.8 percent of children reported as being "found abandoned" during this period were sent overseas. The correlation of these statistics is a chilling manifestation of the link between "abandonment" and transnational adoption. Are orphans adopted for better protection, or are they orphaned to be adopted?

The prejudice against certain groups of people in society is one thing, but it is another that there existed a systemic and legal procedure which legitimized the discrimination and facilitated the social exclusion. In the latter case, the accountability of the state arises. The facts described above delineate the foundation of the argument that it is the state which has violated adoptees' right to know their origin. What should we do to fix the current situation and to restore this right?

There is no single solution. We should begin by figuring out the clearly discriminatory features. The birth records should be public information secured and governed by public authorities. In contrast to non-adopted Koreans, the true birth information of adoptees is still left in the private realm, which is considered the private possession of adoption agencies. Adoptees should be able to demand their right to access the information of identity to the government authorities. This authority must have the expertise and autonomous power to decide whether and how much of the information should be disclosed. In Korea, general birth registrations are under the control of the judicial body and the Ministry of Justice. Therefore, adoptees too should be able to knock on the doors of such authorities to request the disclosure of the information of their true identity, and to not have to deal with the private adoption agencies, which too often conceal such information by arbitrary and ungrounded decisions.

Lee Kyung-eun is director of Human Rights Beyond Borders and author of the Korean-language book, "The Children-selling Country."