5/27 Update from Asociacion Defensores de la Adopcion

Tuesday 27 May 2003 Update (RE-posted with permission from Susana Luarca, Attorney at Law)

Re: "Preview of The Thursday Update" on Guatemalan
Adoptions

Dear Friends,

The chief of section of the PGN, Rudio Lecasa Merida
has assured the Guatemalan adoption professionals, the
US Consulate officers and the US adoption agencies,
that it is not their intention to hinder adoptions.
However, the PGN is taking measures that indicate
that it is attempting to eliminate private adoptions,
following the Hague Convention provisions. Instead
of creating state orphanages or establishing a
state funded system of foster care for the thousands
of children that roam the streets, the measures
that the PGN is trying to implement, affect only the
children who are being taken care of by private
persons or private institutions.

a) Foster Homes:
In Guatemala it is not illegal to take care of
children in private homes, but in order to protect
the foster mothers from false accusations and undue
harassment from the Police, the adoption lawyers and
the PGN reached some years ago, an understanding that
allows a woman to take care of two children en her
house. Without previous notice, the PGN revoked
today the Decree that allowed the foster care in
private homes. Tomorrow, the adoption professionals
will take legal measures to protect the foster mothers
from being harassed like some of them were, two weeks
ago.

The raids that took place two weeks ago were against
foster mothers who live in the same zone of
Guatemala City. The newspapers and TV news
exaggerated the number of children “rescued” and
neglected to tell that all the foster mothers had
their documents in order, including the notification
of foster care to the PGN. In one of the cases, the
mother was taking care of two children and her
daughter, who lived in an apartment in the second
level of the house, took care of other two babies.
Even though the Police and the MP understood that
there were two different housing units, the PGN social
worker who lead the raids, insisted in removing the
children from their foster mothers “for having more
than two children in the same house”. The children
were transferred to orphanages. Those who already had
a DNA test have been returned to the foster mothers
by the courts of minors. DNA tests are being done to
the rest of the children in order to establish,
without any doubt, the origin of the children.

b) Hogares (private orphanages).

The chief of the section of minors of the PGN, Denis
Alonzo and the Secretary of Social Welfare, Marilys
de Estrada, met today with the Magistrate of Minors,
Isabel Prem, to request her that the abandonment
decrees of children living in hogares be ruled by
the judges of Minors, appointing the Secretary of
Social Welfare as legal guardian of the children.
That would give such Secretary, the power to decide
who can adopt those children. The Magistrate of Minors
denied the petition.

c) Hague Convention implementation:
The Central Authority’s small office was moved today
to larger offices in the building of the PGN. We still
don’t have any information about the conference that
the chief of section of the PGN, Rudio Lecsan Mérida,
attended the last week at The Hague, Holland, with
the directors of The Hague Conference of
International Private Law.
The PGN as Central Authority in Guatemala for the
Hague Convention intends to apply the provisions of
such treaty to all adoptions, regardless of the
dispositions stated in the Hague Convention and the
Viena Convention, that limit the scope of appliction
to the contracting states. We must insist that the
Hague Convention does not apply to adoptions by US
citizens.

The legal grounds that support that allegation are
based on two international treaties:

1. THE HAGUE CONVENTION - CONVENTION OF 29 MAY 1993
ON PROTECTION OF CHILDREN AND CO-OPERATION IN RESPECT
OF INTERCOUNTRY ADOPTION.
2. THE VIENA CONVENTION The Treaty of Treaties .
Viena, May 23, 1969 U.N. Doc A/CONF.39/27 (1969),
1155 U.N.T.S. 331, entered into force January 27,
1980.

1. THE HAGUE CONVENTION
The Hague Convention, articles 2, 14 and 41 very
clearly establish that the convention shall apply only
to “contracting states”. The United States signed
The Hague Convention on March 31, 1994, but has not
ratified it. That information can be verified in the
website of The Hague Conference of Private
International Law, the multinational organ who helped
to give life to the convention on international
adoptions
http://www.hcch.net/e/conventions/text33e.html

2. THE VIENA CONVENTION
Ratified by Guatemala, this multilateral treaty
establishes the way the international treaties and
conventions should be interpreted, understood and
applied.
http://www.un.org/law/ilc/texts/treaties.htm

According to Article 2, that states the Use of Terms
“f) 'contracting State' means a State which has
consented to be bound by the treaty, whether or not
the treaty has entered into force; and
h) 'third State' means a State not a party to the
treaty;”

The United States is, without any doubt, a THIRD
STATE WITH REGARD TO THE HAGUE CONVENTION. The rule
that the Viena Convention sets for third states is the
following:
Article 34: General Rule Regarding Third States:A
treaty does not create either obligations or rights
for a third state without its consent.”

The United States of America must assert its position
as third state regarding the Hague Convention
instructing its diplomatic officers to deliver the
message to the Guatemalan Minsitry of Exterior
Relations, in order to protect the rights of its
citizens who are adopting a child from Guatemala,
from having their cases delayed innecessarily due to
the implementation of a convention that does not apply
to their cases.

Because time is of essence, we allow ourselves to
urge the US adoptive community, to support our
campaign, by writing letters to congressmen/women,
senators and State Department, requesting them to
clarify to the Guatemalan Authorities, the position
of the United States of America as a third state, with
regard to the Convention On Protection Of Children
And Co-Operation In Respect Of Intercountry Adoption.

Best regards,

Susana Luarca, Attorney at Law
Asociación Defensores de la Adopción
Guatemala City