Hague Evaluation Information & Consultation

Baby Boom in Intercountry Adoption Prompts New U.S. Standards

By K. S. Rotabi, PhD, LMSW, MPH 

The diverse household of superstar power couple Angelina Jolie and Brad Pitt epitomizes a growing number of American families who are seeking to adopt children from other countries. As a result, the U.S. Department of State (DOS) has experienced a surge in intercountry adoption-related orphan visa requests. U.S. citizens adopted 10,641 children worldwide in 1996 and nearly doubled this figure with 20,679 adoptions in 2006. During this decade, more than 200,000 children have been adopted by U.S. citizens from a variety of nations around the world with Guatemala, China, and Russia as the recent top three sending countries. This baby boom has prompted new US requirements under the Hague Convention for Intercountry Adoption (HCIA).

While state laws apply to adoptions, the Department of State (DOS) historically has exercised the greatest control over intercountry adoptions due to its role in issuing orphan visas for these children. Some of the criteria defined by DOS include requirements for home studies and grounds for the declaration of a child as actually “orphaned.” In countries like Guatemala—where there have been concerns about child theft and sales—DOS has exercised further control by requiring a DNA test match between the relinquishing birth mother and child in question at two different points during the adoption process. While these controls may appear to be effective, concerns remain about adoption fraud cases. U.S. immigration violations have been central to the criminal investigations related to Guatemala as well as other nations.

New U.S. Requirements

The HCIA is an international agreement that prohibits the sales and trafficking of children under the guise of intercountry adoption. The United States signed this agreement in 1994 along with more than 65 nations. Shortly thereafter, U.S. child welfare professionals and foreign policy experts began planning for its implementation. This was a lengthy process that eventually culminated in the Intercountry Adoption Act of 2000 (IAA) (Pub. L. No. 106-279, 114 Stat. 825).

The United States ratified the Hague Convention on the Protection of Children and Co-Operation in Respect of Intercountry Adoption on December 12, 2007, and is now a full member of the HCIA. The HCIA will enter into force on April 1, 2008, and govern intercountry adoptions between the United States and other member countries in accordance with the IAA.

QUICK TIP: The HCIA requires a sending nation to ensure that intercountry adoptions take place in the best interests of children. This means that the nation must make an active effort to keep the child within his or her family and kinship group. If this is not possible, the nation must attempt to place the child domestically, thereby preserving culture and language. When these criteria are not possible, then a child may be freed for intercountry adoption. When there is evidence of child sales or theft, the nation is expected to intervene and respond appropriately.

There have been recent changes in intercountry adoption standards—especially given U.S. government law enforcement and United Nations investigations and subsequent findings of child trafficking. Specifically, previous intercountry adoption irregularities in countries such as Guatemala, Romania, and Cambodia have illuminated problems of falsified documents, financial profiteering, and money laundering. As a result, the new standards focus primarily on agency financial operations and practices of their employees during the intercountry adoption transaction.

Major areas required for HCIA implementation include:

• Designation of a central authority for the regulation of intercountry adoption;
• Requirements for agency adoption accreditation;
• Transparency of agency budgets and fee schedule policy, including accounting audits; and
• Professional standards of practice including supervision guidelines, and the training of agency employees, board members, and prospective adoptive parents in HCIA requirements.

Designation of a Central Authority

As required by the HCIA, DOS has been identified as the central authority in the United States. As such, DOS oversees HCIA implementation. One indication of DOS’s role and expanded capacity in the area of intercountry adoption is the organization’s website for each sending country. While in the past there always has been some information available for prospective parents, now there is a substantial compilation of information provided for U.S. citizens. This includes specific country policies and even warnings about problems in different nations. For example, the November 2007 update to information about Vietnam indicates concern about adoption irregularities such as the unregulated activities of birth mother recruiters (see www.state.gov).

DOS information also focuses on the adoption process in general—especially the required paperwork for visas and other documents such as medical clearance. As the central authority, DOS will implement policies and procedures necessary to safeguard the adoption process.   

Requirements for Agency Accreditation

Adoption agency accreditation is required under the HCIA and is overseen by DOS. This means that any agency engaged in either sending or receiving children for intercountry adoption to or from another Hague-signatory country is required to be accredited for such practice. The Council on Accreditation, an organization that accredits a variety of human services organizations (such as group homes) is the only national organization designated by DOS to accredit intercountry adoption agencies. The accreditation process began initially in 2006 when 306 agencies applied for HCIA evaluation. Accreditation reviews—including site visits—are now taking place and a list of accredited agencies will be released in the first quater of 2008.

As a part of this process, HCIA evaluators who determine accreditation will review agency records, policies and procedures, and other relevant documentation related to intercountry adoption. Evaluators interview relevant individuals, including prospective parents, agency staff, and board members, to verify agency operations, policies, and procedures.

Transparency of Fees and Accountability

Under the new HCIA standards, intercountry adoption agencies are required to clearly identify their fee schedules, policies for payment and refund of fees, and the annual agency budget expenditures. Fees are expected to be considered reasonable by intercountry adoption standards, including the cost of adoption home studies that are required for child placement approval of prospective families. Salaries of employees will be reviewed and noted when there is exorbitant compensation for professional work. Additionally, agencies must be bonded and guarantee that they have at least two months of operating expenses available either in a bank account or as secured credit to ensure that they can function in the event of an unexpected crisis or closure.  

In the past, some intercountry adoption agencies have operated with ambiguous fee schedules, providing only an expected cost range for their clients. For example, in 2005, Guatemalan child adoption was estimated to cost $25,000 per child, while more recent estimates by child rights advocates range upwards of $40,000, depending on the circumstances of the child (see http://laws.adoption.com/statutes/intercountry-adoption-act.html). During the adoption process, some prospective families have found that fee schedules and expectations change—resulting in a greater expense than anticipated. This has led to claims of extortion with prospective parents facing escalating adoption costs.

Under HCIA requirements, DOS and the Council on Accreditation will document such abuses and respond appropriately in the agency accreditation process, potentially resulting in an agency’s failure of accreditation standards. This is an improvement over the old system in which potential parents had little or no recourse in responding to escalating fees.

Professional Standards of Practice

Under the new HCIA standards, the people involved in the major areas of the intercountry adoption process are required to be supervised by the adoption agency. The only exception to this rule involves the independent home study providers who may operate in an unsupervised manner and work for agencies as independent contractors. Agencies will set their own internal policies as to their relationship with home study providers—whether as contractors or employees—thereby exercising greater control over their work.

Quite the opposite is true in regard to adoption facilitators. Prior to HCIA requirements, adoption facilitators typically worked as “pay-for-service” contractors. Most frequently, they were not supervised by the agency; rather, they provided a service to the agency and prospective family by mediating between all the major actors and facilitating the processes in the sending country.

A variety of problems manifested under the old system. For instance, a facilitator may be in a position where he or she is expected to bribe a government official in order to expedite or even secure necessary paperwork (i.e., a family court judge in a foreign country who offers to move the paperwork quickly for an “additional fee” that is not noted in any formal fee schedule, and if the bribe is not made, the paperwork may be stalled as a result). In developing nations where such fraud is not uncommon and even culturally engrained, this is a particularly difficult position to navigate.

Cambodia Adoption Suspended

Under the “unsupervised facilitator,” there have been serious ethical violations. Perhaps the most egregious example of adoption facilitator fraud is the case of Lauryn Galindo in U.S. v. Galindo, 161 Fed.Appx. 735 (9th Cir., 2006). Galindo had a history of involvement in Cambodia. She claimed to be in Cambodia for humanitarian work, including intercountry adoption facilitation. Her sister, Lynn Devin, headed Seattle International Adoptions, an agency that Devin operated from her residence where she processed the paperwork and adoption fees on the U.S.-side of the transactions. Together, the sisters successfully developed a system that placed approximately 700 children with families who, in good faith, believed that they were adopting a child from an ethical and reputable agency.

While it is fair to say that not all of the children’s adoptions resulted from falsification of visa paperwork and illegal activities, it is impossible to know just how many of those adoptions were ethical and legal due to Galindo’s own confession of sloppy paperwork. Because Galindo and Devin both pled guilty to charges related to money laundering and visa fraud, the full extent of their illegal behaviors and the actual number of illegal adoption cases were not completely disclosed in a court of law.

However, U.S. marshals found that Galindo bribed Cambodian officials for falsified birth certificates and other documents to gain orphan status. She also organized a system of birth mother recruiters who made payments of small financial sums and bags of rice to birth families in exchange for relinquishing their children—often under false pretenses and the belief that they would have an ongoing relationship with their children. Further, waiting children were housed in “stash houses,” described by the federal investigators as filthy and in conditions that would be considered animal cruelty by U.S. standards (see http://cumberland.samford.edu/cumberland_programs.asp?ID=630). As a result of this case, DOS suspended all child adoptions from Cambodia.

Guatemala: A Case Example

Another case in Guatemala also is a good illustration of problems associated with adoption facilitators acting as independent professionals without formal oversight. Guatemala is estimated by the U.S. government as one of the most corrupt countries in this hemisphere, and bribery is not an uncommon practice. There are numerous examples of questionable processes and potentially falsified paperwork. For example, Mary Bonn, a facilitator, was arrested by U.S. marshals in Florida in early 2007 on immigration violations related to illegal transportation of a child out of Guatemala and into the United States. Because Bonn pled guilty to harboring an illegal alien, all the facts have not been presented in a court of law. As a result, it is not clear exactly how she used bribery or paid others to participate in her crime. However, there are Guatemalan citizens implicated in the crime, thereby suggesting that they were motivated by some tangible reward.

Notably, Guatemala was, on a per capita basis, the single most active sending nation in 2006. The nation’s private adoption system has become a case study for what can go wrong in an unregulated system in a country riddled by poverty and corruption. Guatemala’s millennium adoption surge has led to many lessons learned, including issues about birth mother recruiters, attorney roles, and illegal payments to birth mothers (see www.socmag.net/?p=171). The corruption problems in Guatemala further underscore the need for international regulation of intercountry adoption. At this time, Guatemala’s own implementation of the HCIA has become a contentious issue as its system slows to a halt.

Safeguard Against Fraud

Under the new policies, facilitators working with U.S. agencies are expected to be supervised by the adoption agency. As a result, agencies are held accountable for their practices as facilitators, conferring liability on them for any legal and ethical violations committed. This will be a challenging component of implementing the HCIA at the agency level because facilitators work in both countries, with one foot in the United States and the other in a foreign nation.

Quick Tip: Adoption facilitators’ practices in a foreign nation will require strategies for supervision at a distance, such as the use of virtual technology, good communication, and professional training for problem solving in countries where corruption is part of the culture and sometimes inherent in completing official paperwork.

Required staff development and training—including appropriate agency staff orientation and continuing education on the problems that HCIA adoptions may have (including child health and development and ongoing HCIA training)—are added safeguards against fraud. Additionally, prospective parents are required to receive at least 10 hours of HCIA-related training after their home study is completed. This training helps ensure that both staff and families understand the complexity of HCIA and the problems they may encounter, especially practices that are in violation of it.

Anticipating Loopholes

Now that the United States has ratified the HCIA, one of the greatest changes will be an imposed moratorium on some nations that have signed the HCIA and are deemed incompliant to its standards. Most notably, Guatemala is expected to be closed as a result of HCIA ratification due to the nation’s slow response to HCIA requirements—largely due to constitutional challenges that have only recently been resolved. Now the nation is attempting to implement the HCIA and it is yet to be seen whether the system will be effectively reformed.

While Guatemala will likely be closed, at least in the short-term, due to the HCIA ratification, Russia and Ethiopia are not signatory countries. As such, the relationship between the United States and these nations are not regulated by the HCIA. Internal controls of the agencies engaging with such sending countries are important. This is a tall order, especially in a nation like Russia, where it is speculated that the intercountry adoption system is controlled by the Russian mafia. As for African nations, the continent has unique dynamics related to the history of human sales and corruption in general.

Inevitably, as the market shifts from countries like Guatemala to other nations, there will be agencies that choose to interact only with the non-HCIA countries, thereby avoiding the requirements for accreditation. This will create a two-tiered system of adoption agencies: those willing to comply with new ethical standards under HCIA and those choosing to operate without accreditation, engaging only with countries that have not complied with these international standards. As a result, problems and corruption will continue in the intercountry adoption process if these loopholes are not eradicated.

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 Note: This summary is an adaptation of a feature article appearing in the Spring 2008 issue of Immigration Law Today. Karen Rotabi is a regular contributor to Hagueevaluation.com

Major Changes IN INTERCOUNTRY ADOPTION REQUIRE THOUGHTFUL RESPONSES

 TO BE ACCREDITED ADOPTION AGENCIES MUST:

-Develop agency strategy for Hague Convention compliance

-Train agency staff & prospective families in essential information

-Prepare the board of directors to respond to their fiscal obligations under the Hague Convention

-Have adequate financial resources to prove solvency and have appropriate bonding and insurance

-Disclose their fees clearly and with transparency

 UPDATE: Bonn served a short jail sentence.

Guatemala was closed as a sending nation and now is re-opening on a limited basis beginning in 2010. Only older children, sibling groups, and special needs children are expected to be matched with families outside of the nation.