Held Up

Photo 2 (11)
An orphanage in Hoi An, Vietnam (Courtesy of Flickr user Satbir Singh).

By Hannah Schwarz

Kim Nguyen and Don Pham are stuck. Thousands of miles away from the United States, and they’re still bound by the country’s laws. Yes, they do have to file taxes in both countries, but that’s not what’s bothering them. They want to adopt a Vietnamese child, but the United States says they’re not allowed. As we share brunch in a sweltering Vietnamese restaurant, they explain.

Though Pham and Nguyen are husband and wife, the law treats them differently. Only Nguyen is legally allowed to adopt a child in Vietnam because, unlike Pham, she holds Vietnamese citizenship — Nguyen also holds citizenship from Canada and the U.S.; Pham is only an American citizen. Nguyen and Pham both grew up and attended college in the U.S, and moved to Vietnam a few years ago. But because of U.S. laws, Pham, as solely an American citizen, would not be able to join the adoption. If Nguyen were to adopt, her child would not legally be Pham’s.

Also frustrating is the fact that, had they adopted a child before 2006, they would not be facing this dilemma. Nor would hundreds of other couples — couples who desperately want to become parents, and who, until recently, were planning on turning to Vietnam to fulfill their dreams.


From late 2007 to early 2008, the U.S. State Department uncovered evidence that some Vietnamese adoption agencies had placed children — whose parents had not voluntarily relinquished custody — in foreign homes. Some child launderers convinced mothers who were financially desperate to exchange their children for money. Others simply kidnapped the children.

On September 1, 2008, the State Department responded by placing a moratorium on all U.S. adoptions from Vietnam. U.S. officials would go on to disrupt multiple adoptions initiated, but not completed, before September, which meant that some parents would likely never be able to bring home the children they had spent the last months and years preparing to adopt.

The situation was heated and messy already, but then in February of 2011, Michael Michalak, the U.S. ambassador to Vietnam, stepped down for reasons unrelated to the moratorium. President Obama nominated then deputy assistant secretary of state for East Asian and Pacific Affairs David Shear, who supported the moratorium, a stance that would complicate his confirmation. Parents in the midst of adopting Vietnamese children — parents whose adoptions were being held up and would likely be disrupted by the moratorium — decided to do everything they could to keep Shear out of the position. They wrote to their senators and asked them not to allow his confirmation to come to a vote.

Ultimately, three senators, all Democrats who usually supported Obama’s policy agenda, listened to the pleas and held up the confirmation for three months. It may have been a victory, but it was short-lived.

Now, six years after the moratorium was first implemented and three years after the hold-up of Shear’s confirmation, the policy still stands. Based on data from 2006 to 2009, during which a final 2,200 American adoptions from Vietnam occurred, the moratorium thus far has meant roughly another 2,200 children who potentially would have been adopted but were not.

Pham doesn’t hesitate to give me his thoughts about Shear or about the moratorium. He said he has gone to the Ambassador multiple times to explain his own situation and urge him to take action. But nothing has changed for Nguyen and Pham, because nothing has changed with the moratorium.

“I could be the test case,” Pham joked about a hypothetical legal case. But then, he points out, a whole slew of issues, mostly unrelated to the important legal one, would come up. Where would the case be adjudicated? And what about the legal fees? “I don’t want to be [the test case].” The moratorium’s personal impact frustrates Nguyen and Pham, but so too does the logic behind it.


While the very nature of child laundering makes it difficult to track, even the most liberal estimates of how many Vietnamese children have been trafficked pale in comparison to the number of children who might have been adopted during the course of the moratorium. And even if the number of children who have been trafficked is somewhat higher than most estimates, “is it enough to shut down international adoptions?” Pham asked me rhetorically. “No.”

“That’s a kid’s childhood,” Nguyen chimed in. “Once they’re past the age of five, the chances of their being adopted significantly decrease.”

A young boy eating lunch at the Khai Tri Orphanage (Courtesy of Flickr user Dirk Tussing).
A young boy eating lunch at the Khai Tri Orphanage (Courtesy of Flickr user Dirk Tussing).

Pham and Nguyen’s comments point to a fundamental tension in foreign policy decision-making those who disproportionately suffer the consequences are rarely those who have made the decisions. When the U.S. imposed economic sanctions on Iran in reaction to the nation’s alleged nuclear weapons program, it affected millions of poor Iranians. When the U.S. slapped similar sanctions on Uganda this year for the country’s severe anti-gay laws, few protested, even though it is one of the world’s poorest nations. There is a similar layer of irony to the moratorium put on Vietnam — it is meant to help the very children it may be hurting.

Although the U.S. has yet to lift its ban, Vietnam has implemented a slew of new adoption and child protection policies in the last few years. In 2011, the government ratified the Hague Adoption Convention, establishing stricter international standards for inter-country adoptions. Since then, it has increased centralization of its adoption services; made it illegal for adoption agencies to pay Social Protection Centers (SPCs), which house orphans; and, in coordination with USAID, piloted a program to increase the number of special needs children who are adopted. So why hasn’t the U.S. lifted its moratorium?

According to Vijaya Raman and Nguyen Ha, legal specialists in the Child Protection Unit of UNICEF Vietnam, who emphasized that they could not comment on the rationale of any nation’s policy decisions, the U.S. may simply want to ensure that, in the slow-moving policy world, the laws are doing what they are supposed to do. Six other nations are still waiting before they lift their moratoria, Raman noted, and they want to know that they are on sure policy footing before doing so. “Three years in the policy world is a fairly short period of time,” he said. “I suspect [the U.S. not lifting its ban] is about making sure the [Vietnamese] system is strong enough to cope” — to actually successfully implement all these changes.

And though Vietnam has made significant progress in a very short time, he said, five years after the policies were first implemented, it has become evident that gaps remain. There are, for instance, stories that in order to circumvent the new laws banning monetary payments to social protection centers (SPCs), government-run, centralized agencies that take care of particularly vulnerable populations, like orphans, the elderly, and the disabled, adoption agencies have begun in-kind payments instead, Ha said. And although those are only anecdotes, Raman said it is suspicious that certain adoption agencies have much higher rates of picking up children from SPCs than others do.

Still, the types of abuse that inspired the moratorium have significantly decreased. Before adoption reform legislation, adoption agencies often paid SPCs large sums for the most desirable children. The practice in itself was disgusting, but it also had other negative consequences. With multiple adoption agencies vying for kids, prices went up. It was Adam Smith’s invisible hand working its power on human infants. Second, only the most desirable children—that is, healthy, beautiful children without disabilities—made the cut. Agencies were unwilling to pay for children they did not think their customers would want, so those with disabilities, including Vietnam’s many victims of Agent Orange, were rarely given a chance.

In order to combat the problem, the Vietnamese government has coordinated with the U.S. to exclusively allow adoptions of children with disabilities, starting in September 2014. Because Vietnam previously lacked a centralized adoption system, they have made one data system to track all orphans and adoptees, which includes information about the provinces they came from and the countries into which they have been placed. And, in an effort to humanize a difficult to navigate and often bureaucratic system, they are now creating a cadre of social workers who can guide women through the difficult decision of keeping or putting a child up for adoption.


The nation’s adoption system may be improving, adding safeguards to prevent trafficking and exploitation, but questions remain about the children who are left behind — in orphanages, often for years on end. According to Phillippa*, who runs a small, family-oriented orphanage in Vietnam, the nation’s orphanage system is particularly bad.

When she first brought children to her orphanage in December 2010, they gulped down food — in their old orphanages, food was taken away from them if they didn’t finish it quickly enough. They tucked their legs up under their chairs, their calves glued to the bottom of the seats: before, feet on the floor meant legs smacked by a large wooden stick. It took Phillippa months to get them out of the habits.

Her philosophy about what orphanages should be stands in stark contrast to what they are. She thinks they should be modeled after home environments: small, with everyone sitting down for a family dinner every night. She is fiercely protective of her children — she wouldn’t let me visit her orphanage — so much so that she did all the work, cooking, cleaning, and scrubbing, the first year because she didn’t want anyone who she hadn’t comprehensively screened working with her kids. Now, she has a couple of helpers in the house, but until you’ve gone through a background check and been cross-referenced, “there is no guarantee that you’ll see my kids,” she said.

Phillippa’s reasons for founding an orphanage harken back to Pham and Nguyen’s discussion about inter-country adoption. The entire debate around the U.S. moratorium rests on the assumption that legal inter-country adoption (no money on the table, children whose parents have truly given them up or have passed away) is a net positive. But not everyone, Phillippa included, believes that. Out-of-country adoptions are, on balance, worse for children than most other situations, she told me.

She speaks from personal experience. Phillippa is half Vietnamese, half African-American. Her biological father was likely a G.I. in Vietnam; in the late ‘60s and early ‘70s, a good number of mixed-race babies were born from Vietnamese mothers. In 1972, she was flown out of her home country with the help of the British Embassy. Phillippa described the undertaking as a precursor to “Operation Babylift,” a joint mission between the U.K., the U.S., France, and Canada that, from April 3 – 26, 1975, flew 3,300 Vietnamese children from Vietnam to one of the four Western countries.

The whole system was like a lottery, Phillippa explained. You either got a great family, or you didn’t. “My lottery ticket was the bogus ticket,” she said. Sent to an extremely religious family in England, her adoption was never spoken about in a positive way. She was never called by her name, only “devil’s child.” They hit her, but never their other children, also adopted, because “they conformed to Christianity,” she said.

Most parents who adopt have no understanding of where their child is coming from, she said. They don’t understand the food, the culture, or the history. And, oftentimes, their adopted child enters the home speaking a language that they do not. She gave an example: when Angelina Jolie adopted her son Pax from Vietnam, he left speaking Vietnamese. When she took him back recently to see his father, he had forgotten it — he was no longer able to communicate with his biological father.


Adoption advocates expected that the U.S. would lift its moratorium in 2012, the year it was set to expire. But instead, on February 1, 2012, the Department issued a notice stating that it would be keeping the moratorium in place even as the Hague Convention went into effect in Vietnam.

“Despite Vietnam’s initiatives to strengthen its child welfare system and ensure the integrity of its domestic and international adoption process, it does not yet have a fully Hague consistent process in place,” the Department’s Bureau of Consular Affairs declared. “[I]mportant steps must still take place before inter-country adoptions between the United States and Vietnam resume.” The notice did not specify what exact steps Vietnam would be expected to take.

Though the moratorium still stands, the State Department’s decision to allow American citizens to begin adopting special needs children may change that. The success of the pilot program will indicate whether the government should move forward and allow all adoptions, Viajaya Raman explained. The program also serves another purpose: refocusing on what matters most — the children.

“In the past, the scale has been a bit off-kilter,” Raman said. “All of the reforms are about returning to a place where the best interest of the child takes precedent.” But to prospective parents like Nguyen and Pham, that means more than the State Department pressuring Vietnam to improve its laws — it requires lifting the moratorium itself. For now, they wait.

Hannah Schwarz ’16 is a Political Science major in Silliman College. Contact her at hannah.schwarz@yale.edu.