Hague Evaluation

When Will Adoptions Resume for US Citizens?

It is our position that if Guatemala implements the Convention as it was intended, it is impossible to put the array of required administrative policies and procedures in place quickly. Guatemalan authorities have put forth a pilot program for the nation and it appears that 4 agencies will be chosen as collaborative partners. These may or may not be US agencies. It is clear that a number of European nations are pursuing this partnership and many predict that Spain is well-positioned as of January 2010.

WHAT HAPPENED? WHY THESE REGULATIONS?:
History of Adoption Fraud and Irregularities

(Please note, the following was written prior to the new changes noted above)

Since the millennium, over 30,000 Guatemalan children have been adopted overseas, most of them were infants who joined families in the US. Over time, the practice became controversial and there have been abuses. It is impossible to know the depth of such abuses, but it is widely believed that at the very least some birth mothers have received payment for their signature of release and, even worse are allegations of birth mother coercion. Both are illegal in Guatemala

and it is a violation of US orphan visa requirements. Concerns about adoption fraud led the US Embassy required DNA tests to confirm the identity of the child in question to at least limit falsification of identity.

Complicating everything were rumors of child theft. Such rumors are not new, and long before adoption became common in Guatemala, child organ theft rumors led to vigilante lynch mob attacks. In 1993, before intercountry adoption was really even a known entity in the nation, an American tourist was attacked in San Cristobal and left for dead as the angry mob believed that she had stolen a child. In the same year another tourist was briefly imprisoned on suspicion of child theft. With the adoption boom, new child theft rumors have arisen (as well as lynchings of Guatemalans) and Casa Alianza and Sobrevivientes (Survivors), both well known non-governmental organizations, have advocated  for birth mothers caught in this situation. This includes the return of one such child from Spain. The organization continues to advocate for other birth mothers who have particularly painful stories of theft, deception and fraud.  In August 2008, after DNA testing ,a child in the final stages of the adoption process was reunited with her biological mother after being stolen from her more than a year prior.

More recently in late 2007, there has been controversy about false identities of birth mothers and children. For example, Casa Quivera, a children’s home in Antigua, Guatemala came under scrutiny and at least 35 children were removed from their care when a records review indicated that at least 5 children’s identities were in question due to false documents, such as a birth mother’s use of a government identification card (cedula) of a deceased person. While this institution continues to be scrutinized some have been released to their adoptive families in the US and the remaining cases remain under investigation. Everyone is hopeful that the situation will resolve itself and the remaining children will be released, a decision that will be made on a case-by-case basis by the special prosecutor appointed to investigate adoption fraud. It should be noted that falsified documents have been used to portray the birth mother as a single woman and thus avoid the necessary processes to secure the birth father’s rights to be informed and the case heard in a court rather than the more expedient process of a single mother’s relinquishment. This also ensures that the case meets the requirements of the US Orphan Visa.

It will never be clear just how many adoptions have been tainted by unethical practices and most certainly there have been many legitimate adoptions. However, given international scrutiny and years of advocacy work by organizations such as Casa Alianza, UNICEF, Diplomatic Missions (esp. the Dutch and Swedish) and the US Department of State, a new adoption law was passed in December of 2007. This law was written to meet the standards of the Hague Convention on Intercountry Adoption and, as such, it meets three clear standards. First Guatemala must make every effort to keep the child within the family group, including extended family. Then a domestic adoption is the second priority. When these two options are exhausted, an international adoption may be determined by the government to be the best option.

Inevitably it will be difficult to recruit sufficient numbers of Guatemalan families to relieve the suffering of institutionalized children in Guatemala. This will be a great challenge and everyone agrees that the nation lacks a culture of formal adoption. However, the good news is that  as of September of 2008,  approximately 150 Guatemalan families had signed up to adopt a child. Some of these families will adopt children who were caught in the US shutdown of adoptions from the nation. As of early July 2008, the first Guatemalan domestic adoption was in final stages of completion under new standards.

Some of the highlights of the new law include the establishment of a Central Authority that is an autonomous organization charged with administrating the necessary processes of adoption. This office, called the Consejo Nacional de Adopciones, (CNA) is headed by appointed individuals who are expected to carry out their work in a manner that insures the best interests of children. The office will be charged with the development of a DNA data base to insure identity of children and create a means of tracking children if there should be allegations of child theft. Additionally, the CNA will identify when a child is appropriate for domestic or international placement, the latter taking place with a small group of foreign adoption agencies* that are deemed approved providers of adoption services. Finally, the CNA will oversee the necessary child placing processes which includes a brief trial observation period taking place under the order of a judge and oversight of social workers.

All of these processes replace the old notary system which operated with little oversight and minimal, if any transperancy.. That is, attorneys carried out the vast majority of the adoption process in their private offices with little regulation by a court of law. The new system clearly involves the court and removes notary privileges to process an adoption in a private system.  For more information about the “old” system see:

http://www.socmag.net/?tag=Guatemala

The new and emerging system has come under scrutiny and some of the concerns raised are well-founded. The major concern is the expediency of a government system as children languish in institutions. An efficient bureaucracy is obviously lacking in Guatemala however only time will tell. Currently, the CNA is under-funded for its first year without a clear budget for subsequent years. It will be essential to generate more funds for systems building, including the development of a foster care system for waiting children. While one may look upon such prospects with pessimism, the international commitment to adoption may well be a source of funds. For example, the Central Authority in China requires that each adopting family pay $3,000 USD as an orphanage donation as part of adoption expenses. Such a system replication is possible in Guatemala, and if managed well new avenues may be developed that can better promote the adoption of older and special needs children.  At this time, Guatemala has been suspended as an intercountry adoption sending to the US . This is subject to change once Guatemala becomes fully compliant to international standards set forth by the Hague Convention. Of course, full compliance will take time and it seems impossible to expect such a system to be effectively in operation before 2009. In the meantime, some European nations are readying themselves for Guatemala to re-open and families on the continent are ready. Under the new system, questions of the legitimacy of intercountry adoptions should diminish.

*Note: At this time, Guatemala is expected to only recognize only a small group of agencies. This is in contrast to the 200+ US agencies that were active in the nation prior to system reform. If only handful of agencies are selected by the CNA, they will only be those which have proven their commitment to adoption and worked with integrity during the pre-reform system. Additionally, it is clear they the CNA is looking to agencies that have programs above and beyond adoption in their service repertoire.

Addressing Rumors 

As for the various rumors, some speculate that there will be a group of attorneys in Guatemala who will be "approved providers" and the system will recover quickly because of their seasoned experience in adoption. That may be true, but the new adoption law basically abolishes the old attorney/notary process in the nation. It is hard to speculate on this one way or another from our vantage point especially if Guatemalan attorneys set up an adoption agency. However, if the system changes on paper (i.e. the fees are itemized and considered to be reasonable professional compensation), but the problems persist there is one thing for certain. The Department of State will not re-open the flood gates to such a system.

MAY 2008 UPDATE: It has come to our attention that there are some agencies taking applications and collecting fees for NEW Guatemalan adoptions--that is initiating new cases in 2008. There is a great deal of unknown about Guatemala, as we stated before. For any family that is considering this strategy, please read the agency waiver of liability statement and refund policy very clearly before you sign and remember that it is illegal for an agency to accept money for a contract that they knowingly cannot fulfill.  

In 2007, the US Department of State urged families to consider their options carefully and proceed with great caution due to the unknown and fragil nature of intercountry  adoption in Guatemala. In early 2008, there were at least 2900 incomplete cases which are being processed under the "old" system as grandfathered cases. Things started off a little bumpy and then smoothed out until it was determined that there were enough irregularities to warrant another birth mother interview for remaining cases. That process has been very difficult for the waiting families in the USA. Some children have been released for adoption since these interviews. Other interviews were impossible to carry-out because birth mothers could not be found or they were unwilling to come forward. The whole situation was very complex given the law, culture, and the history of problems in the nation.

Moving beyond the concerns of adoption fraud to a coherent and ethical system will require a commitment from the international community. Assistance in developing family preservation programs, including temporary foster care and birth mother counseling is essential. It is possible that Guatemala can become not only a case example for what can go wrong, but also how a system can be transformed with political will, international commitment, and best practices. 

All photographs are copyrighted

K.S. Rotabi