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:
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.
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.