Some Analysis...

Let me upfront state that much of the below is opinion, or at least subjective analysis. So if you don't think that is appropriate, don't read on.

The current situation
The DOS has made it perfectly clear that once we institute the Hague, all other things held constant, Guatemalan adoption will cease for Americans. They have stated unequivocally that they consider Guatemala’s accession to the Hague to be in tact. Thus if Guatemala doesn’t pass compliant legislation, adoptions will end. The DOS has also made it clear that, on the US side, as long as you have I600A filed before the Hague, they’ll process the case as usual. This makes everything seem as though it is all in Guatemala’s hands.

What is compliant

Two things are true. Guatemala’s current system is not compliant with the Hague and only Guatemala can change that. But exactly what compliance looks like is a matter for debate. The Hague does set forth some basic standards, but does not specify exactly what it means, for example, to give domestic adoption a preference over intercountry adoption. To understand the heart of the current situation, it must be clear that what Guatemala truly needs to do is pass legislation that US DOS considers compliant with the Hague.

Becoming compliant
Everyone is trying to figure out a compliant system and the DOS is at the heart of that. I personally thank them for doing more than just “wait and see”. There seems to be more support in the Guatemalan congress for reform that keeps the system fairly privatized than there is for the Ortega-Berger model. However, the US seems to be holding fast to a demand that direct contact between attorneys/buscadoras and birth mothers end. I can understand that desire; many of the issues with Guatemalan adoptions do stem from that relationship. But I also need to point out that it is hypocritical for us to hold Guatemala to a higher standard than that which exists domestically. Even the US Hague implementation focuses on private service providers. Nonetheless, if the US won’t budge on this, meaning that someone other than the government handle relinquishment, the outlook is grim. In part this is because the odds of the government instituting a functioning system are slim. In part it is because of the constitutional issues it raises in Guatemala. Might we be stuck in a Catch-22 where the only way for Guatemala to be compliant with the Hague is for them to institute an unconstitutional law?

Constitutionality
I am no Guatemalan legal scholar. And I’m sure there will be some subtleties I get wrong, so feel free to correct them in the comments.

I don’t believe that anyone is arguing that there are no constitutional issues with things like Ortega-Berger. The question is whether Guatemala can pass an otherwise unconstitutional law to be compliant with an international treaty. There is a legal argument that international law supercedes domestic law. But what if the domestic law is to prevent you from joining such international treaties, as is the case in Guatemala. This is why the Hague was defeated in 2003. But, Guatemala has acceded to other international conventions without legal battles, I believe the Geneva Convention being one example. The difference though was that those international agreements did not break Guatemalan law. If you’re getting confused, I understand why. The best I can say was that apparently, the Constitutional Court’s 2003 Hague decision could be questioned even without being overruled.

The issues of constitutionality could be a breaking point. This is hard for us to imagine but we have to respect that larger than the future of adoptions may be the future of the notarial legal system. Adoption proposals that remove the rights of and limit the roles of notarial attorneys could set a precedent unacceptable by many in Guatemala.

Will Guatemala pass a compliant system
The million-dollar question. There are those working on a solution that would satisfy the US, reform the system, and keep adoptions viable. Some of those “in the know” are optimistic, others not so. I am personally torn, falling a bit on the pessimistic side. To me, there are a lot of cards on the table and I’m not sure everyone is showing all of them.

There is little doubt that reform will be on the Guatemalan Congress’s docket in 2007. But what bills will be voted on? Who will take the momentum? How much support is there for Ortega-Berger? How much support does the ADA and Instituto really have? We’ll find out in the months to come.

In process
The embassy’s latest notice really only had one new thing in it – a warning to parents that Guatemala may do any thing at any time. This was troubling to me. I’ve told many people that the one thing I was confident of, because the DOS was so involved, was that in-process cases would be “grandfathered”. While the US can’t tell Guatemala what to do, I did always believe that they’d use all the influence they could to ensure this.

All previous legal proposals considered by the Guatemalan Congress have had a provision to allow in-process cases to continue. Generally “in process” has been considered to be when the POA has been registered along with the birthmother’s “first acta” or Consent for Adoption. So I see no reason to believe that the Congress would change that trend. Really, it’s inhumane because then what happens to the children in process?

So what does the DOS now know? Why did they say it? They’ve never said that before in the recent notices. There wasn’t much else new in this one.

Hopefully they added the warning just to be safe. However, in my opinion, the threat of a moratorium via Executive Order is still real. I sincerely hope this isn’t what’s happening.

Please don’t get freaked out by that last paragraph. Maybe I shouldn’t have written it. Maybe I’ve become the rumor mill the Embassy warns about in the notice. Maybe I’m over analyzing that line in the notice. I’m just being honest.

In conclusion
There will likely be calls for action ahead. Your help and support may be needed to help push the DOS to accept a system that maybe it doesn’t consider perfect. Realize that the job of the DOS, as given to it by the US Congress when they designated it the Central Authority, is not to save the children of Guatemala. Nor is it to worry about the constitution of another country. It is to institute and manage the Hague. I’m sure that’s what they are trying to do. But it doesn’t mean they can’t be influenced on it.

People often ask, “would you start an adoption right now”. My answer at this point is that I’m happy I’m not faced with the decision. I can’t really say that I would. But I also know that we survived the Hague in 2003 and had we not rolled the dice a bit we wouldn’t have our family. Guatadopt will update things as we know them. And I feel the need for commentary; I’ll put it here in Kevin’s Corner.