Why the Congo Adoption Moratorium is Illegal

In September 2013, the executive branch of the Democratic Republic of the Congo (DRC) announced that it had suspended the issuance of “exit letters” to Congolese orphans already legally adopted by foreigners. My daughter was one of those children.

The DRC has gone far beyond any previous adoption ban or suspension, by restricting already-adopted children from leaving the country. Even Russia allowed already-adopted children to leave the country when it implemented its adoption ban. At least 13 children adopted by Americans have died from preventable, treatable illnesses since their detention began.

Here is why the DRC detention violates Congolese and international law:

Congolese Law

Most governments treat passports as permission to leave the country, but the DRC government has a separate requirement beyond passports for its citizens: “exit letters.” DRC exit letters are really a civil liberties violation used by an authoritarian regime to restrict the movement of Congolese citizens. Exit letters are also a money-making scheme for the military police, who use exit letters to extort money from the Congolese.

The exit letter requirement is apparently only a policy, not a law, implemented unilaterally by the DRC’s brutal dictator, Joseph Kabila and his military police. Kabila claims that “valid” authorization to leave the country can be granted only by a single office in the eleventh largest country in the world.

It is doubtful the “exit letter” requirement, as set forth by President Kabila, is legitimate. But even if it were, the way the requirement is being implemented is illegitimate. The executive branch has essentially overruled adoptions approved by the judiciary. This cannot be constitutional.

Furthermore, the military police have hinted that a future law would invalidate, retroactively, already completed adoptions. This is called an ex post facto law, and most countries with written constitutions prohibit ex post facto laws.

International Law

The DRC detention also violates international human rights law. Specifically, the DRC detention violates the following protections offered by the International Convention on Civil and Political Rights (ICCPR):

  • freedom from arbitrary detention (Article 9(1));
  • the right to emigrate (Article 12(2));
  • children’s right to the protections due to minors (Article 24);
  • the right to be free from discrimination; and
  • the right to effective remedies in domestic law (general clauses).

The DRC detention violates the following protections offered by the International Convention of Economic, Social and Cultural Rights (ICESCR):

  • special measures of protection and assistance for children, without any discrimination for reasons of parentage or other conditions (Article 10.3);
  • the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions (Article 11.1);
  • the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, including the healthy development of the child (Article 12);
  • the right of everyone to education (Article 13); and
  • the right to take part in cultural life and to enjoy the benefits of scientific progress (Article 15); and
  • non-discrimination as to race, color, sex, language, religion, political or social origin, property, birth or other status (non-discrimination clause).

The DRC detention also violates the Hague Convention on the Civil Aspects of International Child Abduction. Although the DRC never ratified the Convention on Child Abduction, this treaty is so widely recognized that certain courts on international human rights seem to recognize it as “custom,” and therefore it has universal relevance when considering human rights violations.

Because the exit letter requirement violates international law and has no bearing on the adoption process, nowhere in our immigration process on the U.S. side are families obligated to obtain exit letters.

Human Right to Adoption

Fortunately, there are many good Congolese officials who oppose using children as political pawns. Because of these good people—people who respect the law, morals and basic human decency—children have been able to leave the Congo to reunite with their loving adoptive families. I am thankful every day that this kindness and recognition of my daughter’s right to loving parents resulted in her release.

Sadly, we adoptive families are now harassed by extremists who support all obstacles to adoption, even when that obstacle is plainly nothing more than a hostage situation. These extremists accuse families of “smuggling” and “trafficking” their own legally adopted children, just because the dictator of an authoritarian regime will not admit publicly that children are being released.

When we don’t talk about a child’s right to adoption as a human right, more countries shut down their adoption programs and nonsensical, anti-adoption rhetoric hijacks the dialogue. The U.S.’s lack of adoption advocacy has created a void in international child welfare policy that has resulted in more children than ever before living without safe, permanent families. With better advocacy for a child’s right to loving parents, my daughter could have come home a long time ago.

Katie Jay is an attorney and blogger who advocates for child-centered welfare policies. Her blog, Children Deserve Families, covers both domestic and international child welfare policy.

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About Katie Jay 5 Articles
Katie Jay is an attorney and blogger who advocates for child-centered welfare policies. Katie believes that every child has a human right to develop normally within a nurturing, permanent family. She works on legislative and litigation initiatives to establish a child’s human right to family under our domestic and international laws. Katie began her career as a writer by detailing the bureaucratic and political obstacles to adopting her daughter from the Democratic Republic of the Congo. Her blog, http://ChildrenDeserveFamilies.com/, covers both domestic and international child welfare policy, because when it comes to the care and safety of children, there should be no borders.

4 Comments

  1. All I have to say is you people that are against her are stupid. How can you be breaking the law by going home to the U.S. If you are officially a U.S. Citizen? Basically according to you people if you went out of American and lost your passport you can’t come home? Of course you can because your an American citizen just like these children. No exit letter is needed and no laws are being broken because this letter is made up.

  2. How could children being given a chance at life be an embarassment. You may be living there Jeremy, but you clearly do not understand life as Congolese know it. I will pray that God teaches you humility.

  3. It is baffling that this deeply flawed and biased piece is published in your chronicle. To frame the exit letter problem in terms of ‘detention’ is flat out wrong, shows misunderstanding of international law and showing disrespect for the sovereingty of another nation. Further, the author should have given full disclosure that she is personally involved in this case: one of the Congolese children in this situation she claims to be hers. A photo tweeted recently by the author suggests that she got this child illegally out of the DRC, thus endangering the prospects of other adopters in this politically charged conflict that recently reached the level of the President of the US.

    • Totally agree with you Frank. I am one of those adoptive parents currently living in DRC with my family and learning about the country and culture. We will wait out the suspension and come back to the U.S. when it is legally acceptable to do so without bribing officials or falsifying documents. Unfortunately, it has been confirmed that more than 100 American families have smuggled their children out of DRC and it may be closer to 200. Many government officials on both sides along with adoptive parents know the adoptive mother responsible for coordinating these illegal activities on the U.S. side (she has admitted to helping more 60 children successfully escape) and the Congolese man responsible. It’s embarrassing. The U.S. embassy and DOS have repeatedly and explicitly warned families against taking their children out illegally. Question #5 makes this clear http://travel.state.gov/content/adoptionsabroad/en/country-information/alerts-and-notices/DRC14-11-03.html

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