Stateless

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Rejected Romanian Adoptee Sues Canadian Couple
Via Reuters
Thu February 17, 2005 3:30 PM GMT-05:00

TORONTO (Reuters) - A Romanian woman, adopted as a child by a Canadian couple, who sent her back after only five months, is suing the family and the government for years of hardship and loss of identity, her lawyers said on Thursday.
Alexandra Austin, now 22, was given up for adoption by her mother and brought to Canada in 1991.
After five months, the couple sent the girl back to Romania where she ended up in legal limbo. Authorities there refused to recognize the newly named Austin as a Romanian while Ottawa said she did not have Canadian citizenship either.
"She's suing to hold everyone accountable for what happened to her, falling through the cracks," lawyer Jeffrey Wilson said. "She was a child who was adopted into a foreign country and then, remarkably, sent home on a one-way ticket to Romania.
"She remained there without school opportunities, without health services."
Austin's C$7 million ($5.7 million) lawsuit targets her adoptive parents, who have since separated and live in the United States and Italy.
It also names the Ontario and Canadian governments and Swiss International Air Lines, which flew her back to Bucharest more than a decade ago. The lawsuit alleges all three failed in their fiduciary duty toward the girl.
The parents, who adopted a Romanian baby two days before sending 9-year-old Austin back, are cited for negligence for "reckless infliction of nervous shock, mental distress and abandonment of a child."
"It's not the first case where an international adoption has broken down," Wilson said. "The obvious answer is simply to place the child in the care of the Children's Aid Society and the child grows up in Canada ... with all the benefits."
Instead, the lawsuit says, she was left stateless in Romania, unable to access state-run services and subjected to grinding poverty.
Austin, the subject of a book and a documentary shown on Canadian television this week, said her life fell apart after she was shipped back to Bucharest where her birth mother no longer had parental rights to her.
"Nobody should ever do this to a child," she told reporters in a brief visit to Toronto. "I've lost my childhood and my identity."
Austin, whose schooling ended at Grade 3, launched the lawsuit after giving birth to a daughter who was also deemed a stateless person in Romania.
($1=$1.23 Canadian)
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The U.S. has been dealing with the ongoing legal dilemma of the citizenship of children of illegal immigrants for a while now. Let's say you are a Mexican citizen who either crossed the border illegally into the U.S. or who came to the U.S. on a visitor visa and then decided to stay, forfeiting your legal status. If you have a child, who in theory should have U.S. citizenship, does your status become legal? Should you be considered permanent resident on account of the child's nationality? Should you recieve benefits? In the case of the U.S. at least, the child's rights are immediately recognized.

The situation of the adopted woman mentioned above entails two cases of the child's rights: 1.her status in Canada post adoption, case in which parents should have entrusted her to the Canadian authorities to receive benefits; 2. the status of the woman's child, born in Romania after she was sent back via Swiss Airlines.

In the first instance, I don't think it's arguable the Canadian adoptive parents had the responsibility to keep the child in Canada and intrust her to the authorities. Once you petitioned for Canadian citizenship and - as a consequence - the child lost the Romanian citizenship - you can't expect the Romanian state to recognize the child as a Romanian citizen.
In the second instance, though, the logistics are even more complicated: because the Canadian state doesn't recognize the Canadian citizenship of the woman (now a mother) and the Romanian state declares the Romanian citizenship was renounced upon adoption, the mother is declared "stateless", a status which transfers onto her child, born in Romania. If she were a Canadian citizen it would be easier to claim Romanian citizenship for the child than without any citizenship recognition from either state. Is this at all justified?

I believe that if the Canadian citizenship of the mother is recognized, the issue should be pretty simple, the child should at least receive Canadian citizenship.

According to Article 29 of the 1991 Citizenship Act of Romania (available only in French):

L'enfant mineur citoyen roumain, adopté par un citoyen étranger, perd la citoyenneté roumaine quand des adoptants, ou le cas échéant l'adoptant demande exprès cette chose, et la loi étrangère prévoit que l'adopté obtienne la citoyenneté de l'adoptant. [i.e. "A minor who is a Romanian citizen, adopted by a foreign citizen, forfeits her Romanian citizenship if the adopting parties [...] specifically request it, and the foreign law stipulates that the adoptee must obtain the citizenship of the adopters."] In other words, the mother doesn't have Romanian citizenship under Romanian law.

As for her 4-year old child, born in Romanian, Article 10 of the same act states that L'enfant né des parents citoyens étrangers ou sans citoyenneté, et qui n'a pas encore l'âge de 18 ans, obtient la citoyenneté roumaine en même temps que ses parents [i.e. The child born of parents who are foreign citizens or without citizenship, and who is under 18 years of age, obtains the Romanian citizenship at the same time as her parents.] Unlike the U.S., in Romania you cannot obtain Romanian citizenship by simply being born there. At least ONE of your parents must be Romanian. I suspect the father is not. If he is, then her daughter should get Romanian citizenship. That said, given that the Romanian state's point of view is that the mother lost her Romanian citizenship, the only hope the child may have to obtain ANY citizenship is if the Canadian state recognizes the adoption as a sufficient claim to Canadian citizenship.

Finally, it's very unclear whether Swiss Airlines officials were even checking passports at the time of the mother's return to Romania, and how her entry into Romania was possible in the first place, as a 9 year-old child.

It will definitely be interesting to see how this pans out.