Orphan Definition, Deportation, and Governments’ Responsibilities to Ensure Citizenship: The Amicus Brief from the Case of Adam Crapser/Shin Song-hyuk v. the Republic of Korea and Holt International

A Korean adoptee’s case against the Korean government and against Holt International adoption agency is slowly making its way through the Korean legal system. It could have significant ramifications for international adoption.

From the Korea Time’s article March 22, 2022, “Adam Crapser v. Republic of Korea:”

“On Jan. 24, 2019, Shin Song-hyuk (better known as Adam Crapser), internationally adopted from Korea to the United States, filed a petition with the Seoul Central District Court against the Korean government and Holt Children’s Services Inc. for violating his rights during his adoption process. Although the plaintiff’s story garnered worldwide media attention, his lawsuit represents a historic legal first. Referred to as case number 2019 GA-HAP 502520 (because Korea does not include the parties involved in the names of legal cases), this petition is the first and only attempt by an inter-country adoptee to hold the Korean government accountable for failing to uphold its duty in such an adoption.”

According to the article, Adam Crapser/Shin Song-hyuk filed allegations against both the government of South Korea and against the Holt adoption agency:

Alleged illegal acts of Republic of Korea:

Negligence of its duty to protect its national in the process of inter-country adoption.

Unconstitutional use of proxy adoptions, a practice stipulated in the Adoption Special Procedure Act.

Negligence of its duty to monitor and audit the practices of adoption agencies.

Violation of its obligation to perform due diligence in the process of allowing children to leave the country to be adopted transnationally. The government had a duty to execute this crucial step by ensuring that a relevant authority would verify the legitimacy of the adoption agencies’ procedures. However, it failed to do so, thereby being in severe dereliction of duty. 

Failure to monitor and verify the citizenship acquisition of inter-country adoptees, as prescribed by law.

Negligence of its obligation to fulfill post-adoption monitoring of the plaintiff’s adoption.

Failure to uphold the international norms that seek to prevent financial gain by allowing the inclusion of such unethical practices in the implementation ordinance of the Special Adoption Procedure Act. 

Alleged illegal acts of Holt Children’s Services Inc.:

Holt is among the original four accredited adoption agencies authorized by the government to engage exclusively in inter-country adoptions from Korea for foreign adoptive parents. The original intent of granting such exclusive power should have been to secure the protection and welfare of children adopted abroad. However, rather than fulfilling this aim, it abused its power and engaged in gross child rights violations to reap financial benefits from its adoption business. 

In the case of the plaintiff, despite knowing about the existence of the mother and father, Holt proceeded to provide fraudulent information to the registry office to register the plaintiff as an abandoned orphan.

The allegations are: negligence in the conduct of its duty to serve as a guardian and protect the children under its care; illegally relinquishing and transferring guardianship to the agencies of the receiving countries; failure to execute its obligations to provide support in the acquisition of citizenship for adoptees and to verify the acquisition in accordance with the relevant laws of the receiving countries.”

The petition, filed over three years ago, is still being considered in the Korean court system. I am not a lawyer and have no expertise about the Korean legal process, but I’d guess one reason this is taking so long is because of the potentially enormous ramifications of the court’s decision not only for Adam Crapser, but for all Korean adoptees and for international adoption generally.

A Korean human rights lawyer, Lee Kyung-eun (Ph.D. in law), has recently published three articles in the Korea Times. The articles include excerpts from a 70-page amicus brief designed “to assist the judges in understanding the historic meaning of this case.”

Lee Kyung-eun is the director of Human Rights Beyond Borders and author of the Korean-language book, “The Children-selling Country,” and the English book, “The Global Orphan Adoption System; South Korea’s Impact on Its Origin and Development.”

Here are the links to the amicus brief excerpts, as published in English in the Korea Times:

Submission to court about Korea’s inter-country adoption process (part 1) April 2, 2022

Highlights: This article discusses the history of international adoption laws following the Korean War. The laws expanded and systematized what we now know as intercountry adoption processes. Among the significant points here is the creation of the legal definition of orphan. The 1961 U.S. Immigration and Naturalization Act and Korea’s 1961 Special Orphan Adoption Act created policies that meant an orphan was not necessarily a child with two deceased parents. An orphan could also be a child abandoned by both parents, or a child whose one remaining parent gave up the care of the child. Thus, children could be “economic orphans” or “social orphans.”

Court Submission on the “orphan-making” process (part 2) April 9, 2022

Highlights: This article continues the discussion of the creation/relaxation of the definition of “orphan,” plus an explanation of three Korean documents designed to “obtain the final decisions of the adoption proceedings in the U.S. state courts and qualifications for (the child’s) entry to the U.S.” The documents were apparently mass-produced. “The implications…suggest that it is necessary to investigate thoroughly whether inter-country adoption was a system to find a home for orphans or to produce orphans for the sake of adoption.”

Court Submission on responsibility to verify acquisition of citizenship of inter-country adoptees (part 3) April 16, 2022

Highlights; This article discusses the obligations of Korea and of the U.S. (since this case concerns an adoptee to the U.S.) to confirm that adoptees have received citizenship in their adoptive country. There is a reference to Holt’s court documents (which as far as I know have not been published), saying Holt was unaware of such a responsibility. According to the amicus brief, “The obligation to confirm the acquisition of citizenship by an inter-country adoptee belongs to both sending and receiving countries. It is obvious not only under international norms but also under then Korean law. The failure of the Korean government and adoption agencies to fulfill such an obligation is a clear and significant human rights infringement and a violation of Korean law.”

I urge anyone interested in international adoption to read the three articles above which summarize the amicus brief. (There may be more articles to come.) Keep an eye on this case, in regard to citizenship issues for international adoptees, the deportation of adoptees rom the United States, and the definition of “orphan” for purposes of intercountry adoption. The ramifications are global.

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