Jan 11, 2013

Blind Stubbornness of Ministry of Health and Welfare

Korea’s new adoption law and the interpretation of the law by some in Korea’s Ministry of Health and Welfare (MHW) is contributing to destroying the lives of Korean children in need of loving families.

The law, an inter-country adoption quota and, also, the interpretation of the law by the MHW, in short, is making it more difficult for foreigners to adopt Korean children, while placing seemingly more power into the hands of the MHW, an agency that is showing that it cannot be trusted with the increased power.

At present the MHW is engaged in the persecution of a birth mother and her parents who relinquished their rights to a child to an American couple through Korea’s civil law. The MHW, through overzealous officials at the MHW, has lodged criminal charges against a director of a homeless shelter, a minister who introduced the biological mother to the adopting parents and the adopting parents. The criminal charges against the minister and adopting parents include child abduction charges. The MHW has, also, likely spent a small fortune on an expensive Chicago-based law firm, flew individuals in from Korea and has pushed police to investigate this matter, all with taxpayers’ funds.

The adopting mother, born in Korea, and father, who I have come to know, are loving parents who adopted another child for Korea 10 years ago. There are no signs that these parents are unqualified to be parents.

The MHW, for no apparently logical reason, is wrongfully and in the most un-intellectual manner, as seen in the testimony of an official from the MHW at a U.S. federal court, claiming that the child, in question, is a child that may be, only, adopted under a special adoption act, since they believe that the child is a “child required to be protected” as defined in this Act. Children under this adoption act, in most cases, are under the protection of the MHW and, thus, may only be adopted through the procedure setup by the Act and MHW - a system that places a quota on inter-country adoption. However, the MHW is flat out wrong.

According to a quote by a retired Korean judge and National Assembly member: “Since the child wasn’t abandoned or entrusted at a facility, she can’t be seen as a ‘child required to be protected’ and therefore this is not an illegal adoption.” He goes on to note that “MHW, with its firm determination, is actually violating the human rights of the birth mother and foster parents.”

A little background understanding of the law shows that the new adoption law was passed based, partially, on a misplaced sense of nationalism. Sure children, if possible, should stay in Korea, but the reality is more important.

The reality is that the law and the inter-country adoption quota has increased the number of orphans in Korea, since the drastic decrease in the number of children being sent to parents abroad has not lead to a significant increase in local adoptions – thus causing an increase in the number of children in orphanages that have little to no hope of ever being adopted. Is it really better for these orphans to reside in an orphanage in Korea?

This situation, obviously, is terrible for the children, while, also being terrible for the nation. Many of these children will grow up to part of an underclass in this society - an underclass that is increasingly turning to crime or is living on the fringe. Korea is a country that I love, because of its warm and passionate people and its openness it has showed me.

I have been privileged to have worked for the Constitutional Court of Korea and for other government agencies. I know from my experience with Koreans over this part 15 years that this law, if they knew the damage it is causing to children, would not be supported by the mainstream in the Korean population, court or the administration.

This tragic case highlights why Korea should not be placing more power into the hands of the Korean bureaucracy with interests that, often, are not aligned with the well being of the people and, also, that Korean politicians and government officials need to think beyond the rhetoric and think what is best for the people based on reality.

This law, simply, is an embarrassment to Korea and the application of the law is an embarrassment to the officials at the Ministry of Health and Welfare. The Korean government officials at the MHW that are involved have, clearly, fatally failed the famous Abraham Lincoln test of character.

 As in the words of Lincoln: “Nearly all men can stand adversity, but if you want to test a man's character, give him power.” Sean Hayes, a member of the New York bar, formerly worked for the Constitutional Court of Korea and as a member of a Korean law faculty. He presently works for a law firm and as a professor of law.

SeanHayes@ipglegal.com