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 document.

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 adoption.

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.