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The right to be adopted – the Israeli context

Lidia Rabinovich

The paper addresses the plight of children at risk who are deprived of a family

environment because of serious neglect, abuse or exploitation by parents or other

family members and are placed in out-of-home care (alternative care) by State welfare

services (children at risk).

A stable and nurturing family environment is a precondition for the growth and well-

being of children and for the realization of a wide range of their basic human rights.

After establishing the empirical foundation for this assertion, the paper goes on to

reason that the right of a child to be adopted should be viewed as part of the right of

the child to life, survival and development, as enshrined in Article 6(2) on the

convention on the Rights of the Child (the CRC). The paper then presents the main

characteristics of the Israeli Child Protection policy and outlines some of its

institutional, legal and juridical gaps. Finally, the paper analyzes the possible

implications of recognizing the right of the child to be adopted on Israel's child

protection policy and jurisprudence.

I. Conceptual and normative framework

Traditionally, out-of-home care placement options for children at risk in western

societies have been viewed along a continuum, with the least intrusive and restrictive

options at one end and the most restrictive at the other. This continuum of placement

options starts with keeping the child with his biological parents, but where this is not

possible placement with relatives is considered to be the next best option. The next

preferred placement option is adoption, followed by regular foster care, then treatment

foster care. These are then followed by increasingly restrictive placement options:

placement in a youth shelter, a group home, a residential centre, a psychiatric hospital

and finally placement in a correctional setting.

A growing consensus surrounding the validity of the attachment theory and additional

accumulating empirical evidence in the field of child psychology and development

support this continuum. The existing research also supports children's need for

permanency in a family setting environment (instability seen as posing a serious rick

to children's long term well-being). Empirical evidence strongly supports adoption as

providing the best outcome for children at risk, who cannot be cared for by their

biological family (particularly for young children), compared to any other form of

alternative care on the spectrum.

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While the empirical evidence is quite unanimous regarding the development outcomes

of adopted children, the theoretical and political discussion surrounding adoption (as a

child protection measure for children at risk) is divided. Critics of adoption as a

central child protection policy have raised the dangers of adoption as a social

engineering instrument and place a strong emphasis on the fact that adoption often

deprives children of their biological identity and a continuing connection with their

biological family. Proponents of adoption stress that all other alternative care options

are temporary, yield worse results for children's long term well being and often leave

children at risk in an existential limbo of alternative care drift.

The CRC generally supports this continuum of alternative care, and for the first time

anchors it as a human rights obligation of Member States, as well as placing a positive

obligation on States to ensure that children at risk are provided with alternative care

most in line with their best interests, when they cannot be raised by their biological

parents.

Article 20 of the CRC prescribes that children temporarily or permanently deprived of

their family environment or removed from their family environment in their best

interest are entitled to special protection. Four possible types of alternative care are

mentioned in the article: foster placement, kafalah of Islamic law, adoption and

placement in a suitable institution.

The wording of article 20 implies a hierarchy in the types of alternative care options,

indicating the preference of alternative care in a family-type setting and listing

institutional/residential care as the least preferable option. The preference for a

family-based setting can also be found in the preamble to the CRC where it is also

stated that the child for the full and harmonious development of his or her personality

should grow up in a family environment.

However, contrary to empirical evidence, the CRC lists adoption only as one of the

possible forms of alternative care for children deprived of their family environment

and does not state a preference of adoption over foster care. The CRC does not

provide children with a right to be adopted.

The paper suggests an interpretation to Article 20 of the CRC which delineates foster

care and institutional care as temporary out-of-home care solutions, and adoption as

the preferred permanent placement option for children, who cannot be cared for by

their biological family.

This interpretation is more in line with child development empirical research and with

two of the four overarching principles of the CRC: the best interests of the child

(Article 3) and the right to life, survival and development (Article 6). The centrality of

growing up with consistent and capable parent figures to the present and future

enjoyment of basic human rights for children gives rise to obligations on the part of

the State to guarantee these rights, by doing all within its power to facilitate

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permanent family environment in the shortest possible time (either within the

biological family or with adoptive parents) and keeping to the minimum temporary

placement arrangements.

While the right to family is also a basic human right of adults, children have a

"stronger" interest in both the protection and promotion of their right to a family. To

put it simply – adults can live without spouses or children. Children cannot develop to

their full potential, and in extreme cases cannot survive and live without nurturing

parents.

The main theoretical discussion to date on the right to be adopted has evolved around

the controversy surrounding international adoption, particularly in light of recent

years decline in the scope of international adoption. The human rights discourse has

been raised by international adoption proponents (such as Elizabeth Bartholet and

Barbara Woodhouse) in order to promote the solution of international adoption for

orphaned, neglected, abused and abandoned children worldwide.

Little has been said so far about the right of children at the national level that States

develop child protection policies which take into account their right to a stable and

nurturing home and promote permanency planning from a human rights based

approach.

Based on previous writings by Prof. Dwyer, this paper proposes that a legal

recognition of the right of neglected, abandoned and abused children to be adopted by

nurturing parents should guide welfare services, policy makers and judges in child

protection proceedings in a direction which is more compatible with the realization of

the best interest of the child and with the right to life, survival and development.

Placing this discussion in the Israeli context, the paper suggests that the promotion of

the right of children (particularly new-born and infant children) who cannot be raised

by their biological family to be adopted is both necessary and possible.

Necessary, because Israel is an extreme example of the failure of the child protection

system to provide children at risk with a stable and nurturing family environment;

Possible, because the Israeli Supreme Court has gone further than any other Court in

its jurisprudence to protect and promote the right to family of adults (particularly the

right to parenthood), and thus has already laid the grounds for the establishment of a

positive rights of the child to family.

II. The right to be adopted in the Israeli context - Necessary

The paper depicts a prolonged, complex and fragmented placement policy for children

at risk in Israel and provides several cumulative social, institutional, economic and

legal explanations to this policy.

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Israel has a relatively low percentage (3.4%) of children living in alternative care (the

second lowest rate in developed countries). Since 1980 there has been a decline in the

number of children in out of home care, despite a sharp increase in the number of

children suffering from abuse or neglect known to child social services.

This is (partly) a result of harsh public criticism of the Ministry of Welfare for

allocating the lion share of its budget towards out-of-home care for children at risk.

Subsequently, in recent years the Ministry of Welfare substantively increased the

resources allocated to the development and implementation of community services for

children at risk and their families, at the expense of out-of-home temporary care, and

with the stated intention to reduce out-of-home placement and increase reunification

rates of children in out-of-home care with their biological families.

The results of this policy shift have yet to prove beneficial for the well being of

children at risk. According to Ministry of Welfare's recent assessments, a substantive

number of children still end up in need of alternative care, but out-of-home placement

is now further delayed in order to exhaust rehabilitation options of biological parents.

As a result, children are now placed in foster care or institutions at older ages and

with more complex care needs. A growing number of children reside in out of home

care without any family support system and leave the out of home care system at the

age of 18 without any social, financial, legal or familial support system.

Israel also stands out amongst developed western countries as one of the only

countries in which the majority of out-of-home care (75%) is institutional, while only

25% of children are placed in foster care (in stark contrast with the preference set by

the CRC to family setting care for children). The length of alternative care (which is

supposed to be a temporary arrangement) is also unusually long (the average stay for

infant children in foster care is 7.2 years) and there is a high rate of placement

instability (particularly in residential care). This is partially a result of the absence of

an official and coherent permanency planning policy. Today, the vast majority of

children in foster care or institutional care do not have a long term permanency plan

(either to be reunited with their biological family or to be placed with adoptive

parents).

This is especially alarming in light of the fact that 10% of children that are currently

in temporary alternative care are infants below the age of 6. For some of these

children, adoption could be, and should be a viable option for permanent placement.

However adoption remains a peripheral, negligible and poorly utilized solution for

children at risk in Israel, even in cases when there is no viable option of reunification

with the biological family.1

1 In 2013 only 122 children were adopted in Israel, 40% of these adoptions were consensual adoption.

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The paper identifies and highlights the role of the judicial system (particularly the

Supreme Court) in preventing permanency for children at risk and trumping recent

attempts of social services to promote permanency planning for children at risk.

III. The right to be adopted in the Israeli context - Possible

The paper also illustrates the discrepancy between the wide recognition granted by the

Supreme Court to the right to parenthood for adults and a narrow interpretation of the

right of the child to nurturing parents.

The right to parent a child has been recognized by the Supreme Court as a

constitutional right and has been widely interpreted by the Court to include all ways

of procreation and birth (opening the door to future new technologies of artificial

reproduction), as well as the right to form parenthood through partnership with the

child's biological/genetic parent. The Supreme Court has also indicated the possibility

that the right to parenthood may lead to the recognition of the right of prospective

parents to adopt, vis-a-vis the State (while still not making a binding decision on the

issue).

The combination between the vast recognition of the right to parenthood by the Israeli

Supreme Court's jurisprudence, with the continuing development of reproduction

technologies, and the extensive social and financial support granted by the Israeli

State to the use of these technologies, has lead to a normative detachment between

parenthood and the parent-child genetic and/or biological connection (both in

jurisprudence and in Israeli society).

This wide recognition of the right to a family of adults - particularly the right that the

State assists in creating and grant legal status to parent-child relationship – has yet to

be extended to children. The biological-genetic foundation of child-parent

relationship still dominates the child protection jurisprudence discourse, at the

expense of other (sometimes more crucial, from a child rights perspective) aspects of

parenthood. The Supreme Court has recognized so far only limited and negative

aspects of the right of children to a stable and nurturing family environment - the right

of the child to be raised by (and not disconnected from) his biological parents

(extended, in some cases, to the right of the child to know his biological identity) and

the right of a child not to be detached from his prospective adoptive family, once he

has formed a secure attachment with them.

The Israeli jurisprudence takes it for granted that an adult has a natural,

constitutionally protected right to form parent-child relationship (even when this

relationship is not based on a genetic or biological connection to the child), but does

not recognize the parallel rights of children. When nature fails adults, the Court opens

before them a wide range of options to realize their right to procreate or to form a

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parent-child relationship. When nature fails children (either by their parent's choices

or limited parental abilities) – they are faced with substantively more limited options

for an alternative family: foster care (short or long term) or institutionalization.

The obligation lays with the State to care for children who cannot be raised by their

biological family in the foreseeable future and to promote alternative solutions that

are most compatible with their best interests and the full realization of their human

rights. The documented adverse effects of institutionalization, abandonment, and

temporary foster care generally deny children from fully enjoying a wide range of

recognized basic human rights, both in the short and the long term. Unparented

children are amongst the most marginalized and disenfranchised segments of society.

Israel's obligations under the CRC, as well as the the broad recognition in Israeli

jurisprudence of the right to family and the right to parenthood as constitutional

rights, placing both negative and positive obligations on the State, set the necessary

normative foundation for the recognition of a right of children to a nurturing, stable

family, including the right to be adopted.

Adoption is as crucial (I would suggest – even more so) to children seeking parents as

marriage to adults seeking partners or reproduction technologies to adults seeking to

parent. Or, as Barabara Woodhouse notes:

"the evil lay not only in separating hearts that had been joined together, but

also in the laws' deterrent effect on the formation of loving relationships".2

2Barbara Bennett Woodhouse, "Waiting for Loving: The Child's Fundamental Right to Adoption", 34

Capital Un. L. Rev. 297, 321.