6/6 Update from Asociacion Defensores de la Adopcion

Thursday June 6th 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, Two and Three
a. The U.S. Department of State notice about adoptions
in Guatemala
b. The PGN - Adoptions pre-March 5th
c. The PGN- Adoptions post-March 5th and continued in Part Two
d. Proposed UNICEF Adoption Law
e. The Law of Integral Protection to Childhood and Youth
f. Position: US Adoptions not affected by Hague Convention
g. Letter Campaign to US authorities
h. Publicity and Legal Campaign
Bruce Harris' trial should have been today

THE U.S. DEPARTMENT OF STATE NOTICE ABOUT ADOPTIONS IN
GUATEMALA
The U.S. D.O.S. posted a notice stating: "In light of the uncertainties facing international adoption in Guatemala with the implementation of the new procedures, adopting families should not file for adoption in Guatemala until the current problems are resolved."

Despite our attempts, neither the Consul nor the Vice-consul have given us an appointment so we could explain to them the real situation about the PGN and the so-called implementation of the Hague Convention. Hannah Wallace, Caroline Tiffin and Rudy Rivera have asked for an interview on our behalf, without any results. The Consul, Mr. Mike Jocobsen insists that he only talks to the Central Authority/PGN and that any issues about Guatemalan Adoptions should be discussed either with the PGN or with the US Central Authority in the US Department of State because these are the proper points of contact under the Hague Convention. It is rather obvious that Mr. Jacobsen is not aware that the US has no "central authority" and no "proper points of contact" because it is still "Hague-free"; I hope it stays that way for many, many years.

b. THE PGN - Pre-March 5th Cases
Yesterday the PGN director Rudio Lecsan Merida, the chief of the section that deals with adoptions, released a large number of adoption files. If some of them are noted as having been rejected, they will have to be corrected and submitted again. If they were approved, then your lawyers may draft the deed of adoption and once the birthmother or the director of the hogar (if it was an abandonment) has signed off, the adoption is finished. Copies are then sent to the Civil Registry, new birth certificates are issued, passport and visa are obtained and you are free to take your child home. It takes a couple of weeks between the date that the PGN gives the approval and the pink slip (ticket to pick up your child) is issued.

c. THE PGN - Post-March 5th Cases
In the Constitutional challenge against the appointment of the PGN as central authority, we pointed out that such an appointment was a mistake because even now they can not handle the daily work of reviewing the files that by law have to be submitted to the PGN for its opinion. Their response was to deny our assertion and to accuse the lawyers of defaming them "now that with the Hague Convention ... the hen who lays the golden eggs is running away." This they put in writing, in the response to the challenge, believe it or not.

If your case has not been released after one month in PGN, whether it is a pre-March 5th, or a post-March 5th case, you may file a legal motion called a "recurso de amparo", for denial of an administrative response.We have talked to a lawyer who specializes in these matters and who will handle all our cases and who will also prepare criminal lawsuits for the criminal offenses ncurred by the persons who are delaying the files.

This is the first time in history that the adoption professionals of Guatemala are taking legal action against the abuses of the administration. It is also the first time that we have had so inefficient and negligent authorities. When faced with
this kind of problems the common attitude has been to be patient and to wait. I have many times told impatient parents: "They can delay it, but they can't deny it", knowing that it was just a matter of time.

But now, when they say one thing today and do the opposite tomorrow, we
can no longer afford to be passive. The officials have no idea what to do about an international treaty that cannot be applied by itself without implementing legislation. Yet they knew more than eight months ago that the PGN was going to be appointed Central Authority, and it is only now that they have about eighty cases already presented to them, that they are "considering a temporary suspension of the new adoption cases to address the concerns raised about the
implementation of the Hague Convention".

All they have done until now is to interview a few birthmothers, and in such a manner as to have made them cry and feel guilty.

e. THE LAW OF INTEGRAL PROTECTION TO CHILDHOOD AND
YOUTH
A less poisoned and less potentially dangerous version of the Code of the Childhood and the Youth of seven years ago, was passed by Congress yesterday. It was almost approved before Congress went into recess and yesterday the congressmen of the ruling party met at a special session, just to approve this law, with some changes. It makes the legal procedure for minors in conflict with the Criminal Law.

According to the Constitution, minors can not be judged to be delinquents, so they have to be treated differently when they commit criminal offenses. The former – and terrible - version of this new law was fully supported by the PGN State Attorney and Casa Alianza. At a press conference held at the PGN offices on September 11, 1997, Casa Alianza’s director Bruce Harris accused the Guatemalan adoption professionals of opposing the law because it ”would stop illegal adoptions”.

He publicly accused me,- when I was then still married to the President of the Supreme Court - of illegal activities regarding adoptions so that he could sway the opinion of Congress about a motion presented by my then-husband; the purpose of that motion was to try to postpone the effect of this terrible law for six months based on of a lack of funds to implement the additional courts that would be needed.

Right away I pressed charges against Harris for defamation and the court found that there was merit in my claim and disallowed Harris' petition to dismiss my case. However, for over five and a half years now, Harris has been artfully evading trial, filing over and over the same frivolous defense that is denied every time and each time he files an appeal and more frivolous claims. He now claims that he “should be tried as a journalist”, to get the benefits of a more benign law that applies only to the journalists. The court has already informed him that "...because he is not a journalist, he cannot be tried as one”.
When eventually he goes to trial, he could be sentenced to at least eight years in a Guatemalan prison. More information on his website:
http://www.casa-alianza.org

Today was another one of many frustrated dates for his trial. Again the file was still at the Court of Appeals and therefore the trial did not take place. My lawyer and I will continue the struggle.

f. US ADOPTIONS (SHOULD) *NOT* (BE) AFFECTED BY HAGUE CONVENTION
The legal arguments that support our allegations that the Hague Convention is a treaty, and that like any other contract, is binding only between parties, is not nuclear science. But it seems to be for the bureaucrats at the PGN, so it will take a little longer to educate them on what we are trying to explain.

Almost a hundred adoption files are piling at the Central Authority, are a headache to the authorities of the Central Authority. It would not come as a surprise if they, cornered by the impossibility of applying a treaty without implementing legislation and, due to their own incapacity, would give back the files to the notaries/lawyers, with a lame excuse based on their improper interpretation of the Hague Convention.

If that happens, we will take legal action right away.
The silver lining would be their public acceptance of their inability to handle a treaty made for receiving countries and totally unworkable for countries of
origin.

g. LETTER CAMPAIGN TO USA AUTHORITIES
We have discussed the possibility of a letter campaign by US parents and
families to the PGN/Central Authority as the US consul suggested, but we have decided against it. Our reasoning is the we aren't convinced that the USA citizens have anything compelling to say to the Hague Convention contact person at the PGN. There are no “previous procedures” or “new procedures” The procedures are the same for pre- and post- March 5th cases and they are already in the existing legislation. It is not up to the ineffective authorities of the PGN to decide to process or to not process an adoption case. Also, to involve the US Consul's office isn't the perfect contact point, because the Consular office's main purpose is to protect the rights of the citizens in foreign soil.

We believe that the U.S Department of State should clarify why they have
decided that it is fine or acceptable for the PGN to decide to finalize only already-started adoptions and to tell other families not to file for adoptions in Guatemala until the current problems are resolved.

To apply, or to not to apply the Hague Convention is not a matter of internal law or of public policy, but of International Law. We think that the US DOS should recognize this distinction and press for proper application of International law, which is something they already know how to do. This is not, as some have suggested, akin to meddling in another country's laws or internal politics. This is a matter of insisting that a country with whom we have diplomatic
relations regard and respect the International Treaties, policies and procedures already in place by mutual consent. In the case of the PGN, they have arbitrarily decided to change procedures and ignore proper and continuing protocol and treaty matters.

Keep writing to your Congress and Senate representatives and remind them
of the respective positions of the Consul and the US D.O.S. until the US DOS takes appropriate action.

g. PRO-ADOPTION PUBLICITY AND LEGAL CAMPAIGN
Today the first advertisement in our informative pro-adoption campaign
ran in the country's largest newspaper, the Prensa Libre. It shows a little boy with the sign: “I am not a candidate but you can vote for me. Support adoptions, so I may have a family and a better life.” Adoption is an act of Love. Campaign in favor of adoption. (included our email address.)

We are also planning to do an infomercial to show on cable tv stations both sides of the adoption process. We will show the Guatemalan side, with the “before” scenes of the children, their villages, their very sad lives, where they have to work almost since they learn to walk. We will also feature a few birthmothers, telling briefly why they chose adoption for their children. The other view would show some of the adopted children going to school, playing sports, living the carefree life that every child should have. We actually have no
experience with filmmaking and we would welcome suggestions and all the help we can get. The object is to dispel the rumors of organ transplant, slavery, trafficking of children, etc., that some people and organizations have spread so
effectively.

The legal campaign is meant to take immediate and effective legal action against every act of the PGN aimed to suspend, to retard or to stop the legal process of adoption. We would appreciate any help that you may offer. Email me directly please.

We are very confident that this “wrinkle” in the otherwise smooth process of adoptions in Guatemala will be ironed out, hopefully very
soon. But it is taking much more time and effort than we had expected. We see it as a vaccination, that is making us stronger to these and similar attacks against adoption and the true "rights of children". So that is good in the longer term.

Warmest regards,

Susana Luarca, Attorney at Law,
Asociación Defensores de la Adopción
Guatemala City
SusanaLuarca@hotmail.com

Content of "The Thursday Update" on Guatemalan Adoptions is copyrighted
by Susana Luarca. But please pass this information on as much as possible; I only require that you give proper source credit to Susana Luarca and include my email address!

Posted by Kelly at June 6, 2003 10:18 PM