Illegal adoption or kidnapping?
Published : 2013-02-24 19:48
Updated : 2013-02-24 19:48
The recent case involving an American couple from Illinois and a
Korean baby highlights the importance of words, especially in a legal
context. The Duquets and mainstream media outlets have referred to the
case as an adoption. The question, however, is whether this case
primarily concerns adoption, legal or illegal.
The United Nations says, "Adoption is the legal and voluntary taking
and treating of the child of other parents as one's own in so far as
provided by the laws of the country." It adds, "By means of a judicial
process, whether related or not to the adopter, the adopted child
acquires the rights and status of a legitimate child." Therefore
"adoption" indicates that legal procedures have been followed.
Ten years ago, the Duquets went through a licensed adoption agency to
adopt their only daughter, Emilie. Later, they wished to adopt another
baby, but were told they were too old to adopt internationally from
South Korea. Instead of looking to adopt from a different country,
they persisted in their plan to have a second Korean child.
It was at that time that the Duquets chose their own path. Jinshil
Duquet, without her husband and unlike most adoptive parents, traveled
to South Korea in June last year, and drafted a private adoption
agreement that was later signed by the parents and grandparents of Kim
Se-hwa. Notably, the signatures of both Duquets are missing from the
Jinshil Duquet was given Se-hwa's passport and received approval to
enter the United States as a nonimmigrant visitor through the ESTA
system. When she was questioned by an immigration officer on June 28
at Chicago O'Hare airport, Jinshil Duquet stated that she was bringing
Se-hwa into the country with the plan to adopt her. Since an immediate
decision was not possible, after 10 hours of questioning, the baby was
allowed to travel with her under the status of "differed inspection."
These troubles could have been avoided if the Duquets had applied for
an IR-4 international adoption visa.
On July 18, the Duquets filed a petition to be designated Se-hwa's
legal guardians. On Aug. 27 they were appointed as temporary
guardians, but only through Oct. 23. The following month, on Nov. 13
and 26 another temporary guardianship was ordered, but later on Jan. 9
it was nullified by the same Cook County Court. However, a week later
a federal judge ordered the baby to be returned to the Duquets.
If the adoption had legally taken place in South Korea, it is unclear
why Jinshil Duquet told U.S. immigration that she had a future plan to
adopt the child. This ambiguity is also present in the letter sent on
Oct. 18 by a Chicago law firm to the U.S. Embassy in Seoul, stating
that the request of notarization was for only guardianship, not
The Duquets have claimed they were misled by a South Korean lawyer
surnamed Sang. The only document they have been able to provide,
however, is a legal opinion, on the very specific question of the
adoption eligibility of a 49-year-old woman, expressed on Nov. 22 by
an international midsize legal and tax consulting firm, which
apparently does not employ any lawyers surnamed Sang.
In South Korea, two different laws detail how an adoption should be
processed to be officially recognized.
The Civil Code recognizes simple adoption, which could be understood
as private adoption, but it is legal only for residents of South
Korea. Furthermore, the official adoption form must be submitted to
city hall. The other procedure recognized by the Civil Code is full
adoption, which requires approval from the Family Court.
The Korea Adoption Special Cases Act, which covers international
adoption, prohibits private adoption, and stipulates that only
accredited adoption agencies, of which there are currently three
operating in South Korea, are allowed to facilitate international
adoption. In order to leave the country, children sent for
international adoption must have an emigration permit (EP) granted by
the Ministry of Health and Welfare.
Because the Duquets did not follow any of these legally mandated
procedures, then this case does not qualify as adoption or even an
illegal adoption. How, then, should this case be classified?
The adoption agreement presented by the Duquets has no legal standing,
since it has not been accepted by the Circuit Court of Cook County. It
is missing the signature of Kim Se-hwa's paternal grandmother and in
my opinion, most notably is also missing the signatures of both of the
would-be adoptive parents.
When the U.S. Embassy in South Korea was asked to grant a governmental
notarization of the adoption agreement for the Cook County Court, it
refused to do so under suspicion of violating U.S. immigration law.
No legal document links the Duquets to Kim Se-hwa, and accordingly on
Jan. 11, Se-hwa was given status of an unaccompanied alien child and
was turned in to the Office of Refugee Resettlement, as designated by
the Congress. Initially, the baby was granted a tourist visa. The
period of time of 90 days has since elapsed, and the child is still in
the U.S. She still lacks lawful immigration status, but has not been
brought back to South Korea by the Duquets, as stipulated in her visa.
The Korean government has filed criminal charges against the American
couple for violating Korean laws related to child protection and
adoption, while I'm inclined to believe they also violated children's
rights making this case closely related to kidnapping.
One notable change that followed the Duquets' adoption of their only
daughter, Emilie, was the U.S. ratification of the Hague Convention on
Intercountry Adoption on Dec. 12, 2007. It stipulates that prospective
adoptive parents have to be officially declared eligible and suited to
adopt. The home study is widely used as one tool to fulfill this
purpose. Only after being granted authorization, adoptive parents to
be are allowed to travel to their child's home country.
It is difficult to believe that in the best interest of the child,
custody should be given to two individuals who, through their own
choices, have made the situation complex and consequently, any
procedure of adoption lengthy and hazardous, meaning a longer period
of time of uncertainty for Se-hwa.
To conclude, the terminology used to describe this case may make the
facts surrounding its understanding clearer or more confusing. The
legal status of Kim Se-hwa, a Korean citizen, remains in question as
U.S. courts continue to hear this case. Evidence points to the fact
that this case is closer to kidnapping, as the Duquets did not follow
any U.S. or South Korean procedures mandated for a legal adoption.
Legal bodies should consider revoking custody for individuals who
choose not to follow legally mandated procedures put in place to
protect children's rights, and furthermore should reject any request
for adoption which goes along.
By Marc Champod
Marc Champod is currently studying social welfare at Seoul National
University as a master's student. Prior to receiving a scholarship
from the Korean government, he worked in Switzerland in the field of
pension and benefits, including contract review. -- Ed.