5/29 Update from Asociacion Defensores de la Adopcion

Thursday 29 May 2003 Update (RE-posted with permission from Susana Luarca, Attorney at Law). A note to readers: Asociación Defensores de la Adopción is creating a website to answer many of the questions and to post these updates. We plan to link to this site when it becomes available and to note important news when it becomes available. We appreciate Susana's permission to temporarily repost this information as we feel it is important for as many people to read what is going on.

Dear Friends,

Here is this week's The Thursday Update containing
up-to-date
information including:

Part One
a. Foster Care at Private Homes
b. Hogares
c. US Adoptions not affected by Hague Convention
d. Central Authority - Post-March 5 Cases

and continued in Part Two
e. Delays in Release of Files from PGN
f. Adoption Law Project (UNICEF)
g. Constitutional Challenges
h. Pro-Adoption Educational Campaign

a. FOSTER CARE AT PRIVATE HOMES
In Guatemala, It is perfectly legal to take care of
other people's children in
private homes. No authorization is needed and nobody
supervises the thousands of
informal child-care centers that operate everywhere to
help working mothers. It
is only when the Police have reason to believe that
the children are cared for
international adoption purposes, that the generous act
of fostering a child
becomes "child trafficking", the house becomes a
"clandestine crib
house" and the children "need to be rescued from
adoption"

Over and over again the newspapers fill their pages
with pictures of uniformed
policewomen holding babies, taking them out of the
house where they were living
and of the foster mothers being captured and branded
as "part of the gang of
child traffickers". They never mention later that the
children were there
because their mothers signed an authorization, that
the adoption processes were
impeccable and that the poor woman who helped to
support her family by fostering
with loving care a couple of children, was released
after a nightmarish night
in jail, for lack of reasons to keep her locked.

Also not mentioned is the ordeal of the lawyers who
have to present many
documents and jump through every hoop that the Court
of Minors can come up with,
in order to regain custody of the "rescued children".

Before you start fretting for your child in foster
care, now that the PGN issued
the Acuerdo 53-2003 that leaves without effect the
Acuerdo 235-94, that
established the agreement that the PGN and the
Notaries reached in 1994 to
legally protect the foster care in private homes, let
me tell you that the
notification to the PGN given by the notary was the
best source of information
for the Police when they needed to raid foster homes,
because it stated the
address and name of the foster mother.

In my opinion, it is better what we are doing now. We
are having interviews
with the Police, Supreme Court, District Attorney
and Ministry of Interior,
to make them understand the legal reasons to respect
the right of the foster
mothers to have two children in their homes and to
instruct their enforcment
people to respect the law that allows this.

We worked together to form an emergency committee of
twelve lawyers to be on
call if there is a raid, which we think will help make
the law enforcement
officers respect the foster mothers and the children.
This is the first time
that something like this is being organized and I am
sure that it will be more
effective than the "aviso" to the PGN, that not even
the PGN social worker
honored, two weeks ago. We are working hard on this,
and time will tell how
effective our efforts are.

b. HOGARES
The hogares or private orphanages are rarely harassed
by the Police, because
there is no press coverage for "finding children for
adoption" at a
temporary home for children for adoption. The fact
that hogares insist upon
having a director and a lawyer at hand discourages the
Police from harassing
them. And of course, they have all their documents at
hand, as well.

c. THE US ADOPTIONS SHOULD NOT BE AFFECTED BY THE
HAGUE CONVENTION
I hope that you will join the letter campaign
requesting clarification to
clarify that Hague Convention should not affect the US
citizens' adoptions of
foreign children, because the US is a "third state"
(in the terms of the
Vienna Convention) because it has yet not ratified the
Hague Convention.

It would be good if you send a request for this
clarification to the US Consul
in Guatemala. (not to Guatemalan authorities) We
already sent the information
to INS Director Roy Hernandez at the US Embassy in
Guatemala.

Today I had a brief conversation with Mr. Epifanio
Monterroso, director of the
Central Authority. I asked him why they applying the
Hague Convention to
adoptions by US citizens and explained our position.
He answered that they were
studying the information that we supplied him about
that issue and, if they
realized/agreed that we were correct and that they
were making a mistake in
interpretation, they would correct it right away.
Therefore, a little pressure
form the US consul could help them to make that
realization sooner. Keep those
letters and e-mails going, please. I will post a
Sample Letter in the next day.

d. CENTRAL AUTHORITY - POST- MARCH 5 CASES
The Central Authority, after several months of being
appointed by the State as such, is still trying to
figure out the way to implement the Hague Convention.
The cases that are after March 5,are starting to
pile at the new offices of the Central Authority. The
law gives the PGN three days to give its opinion. The
PGN has no legal grounds to hold the cases due to the
implementation of the Hague Convention or to demand
additional information such as psychological tests of
any kind. Based on that, the lawyers are preparing a
legal resource called “recurso de Amparo” to get an
order from a Court to make the PGN to give the
opinion and to release the files. We thought that we
would not need to do that, but it seems that unless
we take legal action, nothing is going to happen.
We have made clear to the proper authorities that we
do not oppose controls, provided they are timely,
logical and based on law, not in the personal
interpretation/opinion/mood of whoever is in charge at
that moment.
According to the well known and respected adoption
professional Hannah Wallace, who has witnessed how
adoptions closed in other countries, and who was in
Guatemala for the past two weeks, this is the first
time that she sees an organized opposition to the
attempts of deprivatization of adoptions that in those
countries eventually have lead to a shut down. We
would not know about other countries, but we are not
willing to let UNICEF dictate our laws just “to please
the international community” at the expense of the
lives of the children who need a family in order to
survive. We are counting on all of you to keep that
option open for our children of Guatemala.

e. DELAYS IN RELEASE FROM PGN
There will be continued delays in the release of files
from PGN because Rudio
Lecsan Merida, the chief of the section that deals
with adoptions, only recently
returned from Holland where he attended a meeting
about the Hague Convention.
But now that he is back, he must attend to his other
job as well, which is the
presidency of the state-owned Housing Bank, which is
currently under
liquidation. Also, the staffing and furnishing of the
new offices for the
Central Authority have taken some of his time. The
cases are piling again on
top of every surface in his secretaries’ office. I
know how difficult the
extra waiting is for many of you, but it is so very
much worth it.

f. ADOPTION LAW PROJECT (UNICEF)
Congress is now in recess until August, but some
congressmen/woman are meeting
to discuss some matters. Last night, the TV news
reported that the adoption law
might be passed in one of those sessions. We talked
to several congressmen and they told us that it will
not happen. Sometimes the anti-adoption people spread
their messages fabricating news like that.

Today I spoke with the advisor to the President of one
of the commissions that
has to give its approval to the project before it is
approved as a law. I told
this person that I didn't know if I should take in
more children and try to
place them with families. His quick response was,
"You should do it,
absolutely".

When I told him about the TV news report, he said that
two days ago there was a
long working meeting, but there was no agreement about
the formal opinion that
the commission should give. However, he said he
didn'think the law could be
approved before Congress reconvenes on August 1, and,
that the project as we
heard/saw it in an earlier seminar had been reformed.
He didn't specify what
the reforms were.

There are several other, better, adoption law
proposals that have been presented
to Congress, but the pressure from UNICEF is making
Congress to consider only
this one.

If you want to read the lies that UNICEF tells about
adoptions in Guatemala go
to:
www.iss-ssi.org/Resource_Centre/Tronc_DI/ilpec-unicef_english_report_2000.PDF

The rebuttal that our lawyers group wrote will be
posted on our soon-to-be-live
website. When our website is ready, I will advise in
one of these Thursday
Updates on Guatemalan Adoptions.

g. Constitutional Challenges
Dates for final arguments on the constitutional
challenges: Friday May 30 - our
challenge to the accession of Guatemala to the Hague
Convention, and, May 22 we
had arguments for our challenge as to the appointment
of the PGN as Central
Authority.

The Constitutional Court has twenty days after those
dates to give its final
ruling. Their ruling is final, because there can be no
appeal. If the
challenges are upheld, Guatemala will have to stop
being part of the Hague
Convention with the first challenge, and the PGN will
cease to be the Central
Authority, if our challenges are upheld in either of
the cases.

h. Private Questions
I receive many questions from people who need
information or clarification. I
would love to have the time to answer you all, but I
simply can't and I
apologize for not getting back to you. Time simply
does not permit me to do so.
Perhaps as soon as this roller-coaster-Hague-time
passes, I will have more time
and be able to find a way to address those questions.
Our website should help in
this.

Best Regards,

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

Posted by Kelly at May 30, 2003 11:57 AM