6/19 Update from Asociacion Defensores de la Adopcion

For those of you that the statement *effectively suspended* is confusing, there has been no ANNOUNCED or FORMAL suspension. She is referring to the fact that NO post March 5th cases are getting past PGN (although, I have heard there have been some *slips*) *Part 3 has been added...sorry, for the delay...my internet was down yesterday

(Posted with permission from Susana Luarca, Attorney at Law).
Date: June 19, 2003

Re: "The Thursday Update" on Guatemalan Adoptions

Dear Friends,

First of all, I want to present to you my most sincere apologies for the shameful way that the authorities of the Procuraduría General de la Nación (PGN) of my country are behaving, neglecting their duties, abusing their power and causing to all of you who are in the middle of an adoption process, unnecessary grief. We here are working to make this time of uncertainty as short as possible.

Here is information about the following

1. THE “DE FACTO" SUSPENSION OF ADOPTIONS BY THE PGN
The PGN has suspended the processing of post-March 5 cases. That is illegal for them to do, because they are supposed to continue to process cases under the existing laws until new laws are put in place.

Legally and procedurally, when reviewing a file presented to them, the PGN has three days to give an opinion.

If they do not give an opinion in that time, then after the file remains there an additional thirty days the petition (adoption file) is considered denied and it constitutes grounds for a“recurso de Amparo”. This is sort of like an appeal, although that isn't the perfect translation in legal terms.

Lawyers who have adoption cases at the PGN for more than 33 days, regardless of being pre- or post- March 5th, must file the amparo/appeal within 30 days after that 33-day period. After that time, there is a statute of limitations which will preclude them from filing this appeal. Some lawyers do not want to do it because they are waiting to see if the “new procedures” will allow us all to keep working as usual. Many lawyers are concerned that they will ruffle too many feathers, and/or they don't want to be in a position to suffer recrimination. However, I do not believe they are being bold or aggressive enough. They should file immediately after the 33-day period.

My impression is that the PGN has taken a very hostile attitude and position which is totally illegal, and this position should be dealt with accordingly. It is necessary for a court to rule whether a convention that does not have the power to change the existing legislation, actually gives the PGN the right to stop
what they are supposed to be doing, while waiting for some implementing legislations that is not even being established. They are legally required to
continue processing and review the files and give their opinion. This is but one of the disruptive effects of the Hague Convention that I warned about months ago - the uncertainty principle and the law of unintended consequences at work.

The Valladares Law is the only proposed adoption law being studied in ongress, and it does not follow the Hague provisions, because the so-called “attractiveness” of the convention is that the country of origin establishes the adoptability of their children and the country of destiny, qualifies their adoptive parents. According to the Valladares proposed law, it has the right to disqualify prospective adoptive parents, for reasons that go from the very serious ones to the silliest; it goes so far as to insist that parents sign a promise not to "remove the child’s organs”. This only applies to foreign parents. In addition to this technical flaw, it is a terrible and unsatisfactory law to work with.

It also forbids adoptions to countries that are not full-fledged members of the Convention for the Rights of the Child and the Hague Convention, like the United States of America. The revision of this proposed law is (thankfully) going very slowly and it cannot be passed without a favorable opinion of the commissioners. The commissioners are not willing to give a favorable opinion on it, the way it is now drafted. (For more information about this awful proposed law see the June 5 update).

Thankfully, in accordance with my urging, several lawyers are working on their amparos/appeals of their cases which have been stuck in PGN. Also, we have
talked to several lawyers, analyzing each case, and some of them are poised to present amparos as soon as the required time passes by.

Unfortunately, others prefer to wait. It is up to the adoptive parents to instruct their lawyers whether they want to use legal actions or would rather wait and see how others fight for them.

This might sound critical but it is not. It only states the two positions that the adoptive parents whose cases are stuck at the PGN for over a month, may take. Think it over and instruct your lawyers accordingly. My opinion is that all the adoption lawyers should take an aggressive stance and file amparos as soon as the 33 day time period is up. There is strength in numbers and we need to stick
together in order to affect change and progress.

(PART 2)
2. WHAT CAN HAPPEN IN THE NEAR FUTURE?

There are several possible scenarios:

a) There could be a "hostile takeover" of adoption cases by the PGN.
Since the PGN already has the files, they could say that the lawyers must surrender the children, and stay out of the process and make a rule that from then on, the adoptive parents have to deal directly with the PGN. In this scenario, the PGN would collect the second half of the fees and finish processing the adoption.

Believe me, this option has crossed their minds and has been discussed. Not only would this be illegal, but would cause a grand uproar. The lawyers would not give the children and would demand a return of the files, and file appeals on all the suspended and delayed cases. After all, the PGN does not have the last word on an adoption case; it is up to the judges of the Family Courts to rule whether the adoption may proceed.

About two weeks ago, a judge approved an adoption after it had been rejected by the PGN for "failure to comply with the Hague Convention provisions". My opinion has always been that this reason is just an lame excuse, because there *are no* Hague Convention provisions to follow at this time. Thankfully, the child has now already left the country with his adoptive parents. There are several legal actions which could be taken against these illegal measures and the PGN authorities would be in trouble.

Therefore, we do not believe -even though this was discussed - that They would attempt something as dumb as trying to take total control of adoptions mid-stream.

b.) Issue new regulations that would establish new requirements
If PGN were to issued "new regulations", this would be totally illegal. Since the regulations in this case would be issued by the PGN, those regulations would not have the power to modify the rules of the adoption process because only Congress can modify the existing laws.

On a practical level if such "new regulations" by the PGN were not to absurd, some lawyers might accept them because they want to finish the cases. However, to compromise on such an important matter and effectively "look the other way" would be wrong, as it would open the door to more abuses from the PGN.

We have been told that the lawyers at the PGN meet every week to think of new reasons to reject the files and that they find very amusing how the adoption lawyers accept them without arguing. If we accept the power of a Central Authority - of dubious existence - to issue laws, and follow them, we will be duplicating the abuses of the PGN. First the Central Authority and then the PGN, will be demanding different things every time. Remember, they are not really interested in processing adoptions or the welfare of the children.

We have many times asked the Attorney General to make a complete list of all the reasons why a case can be rejected, so that we can be certain that all is in order. However, the Attorney General ignores this request. They simply do not want to limit their right to improvise to their heart's content. That is why we constantly see new and creative reasons for rejecting a file.

c.) The United States could assert its position as Third State and the PGN would then have to process all cases according to the existing laws.

In the last two days I was able to speak with Hannah Wallace at length and I have had long conversations with other adoption professionals including some in the USA. Topics included the change of heart by the adoption agencies who are no longer supporting the Hague Convention and are requesting the Joint Council to withdraw its support as well.

Another topic was United States' Third State Status, regarding the Hague Convention. The consensus is that this is an issue that is difficult to explain to the Congressional Coalition of Adoption. I agree that it is difficult, but I still believe that it is the key to unlock the post-March 5 cases.

Guatemala is a member to the Vienna Convention of 1969 that says in its article 34: "A treaty does not create either obligations or rights for a third State without its consent". The PGN has ignored this aspect, even though we have presented this argument to them. But this same point, if coming from the US DOS, cannot be ignored.

I allow myself to urge all of you to keep writing to the DOS, to request that the United States as a country do what it is right to protect the rights of its citizens from having their adoptions dragged under the scope of a treaty that the US is not a member to.

I know this is the legally correct stance. However, be prepared that this argument may not seem valid to some people. But that is because those people don't want to see this as the catalyst that will help to expedite your adoption cases and will allow new cases to be processed smoothly, without the added layer of bureaucracy of the Hague Convention.

d.) Other Hague Countries could object to the accession of Guatemala to the Hague Convention.

According to the provisions of the Hague Convention, the Contracting states may object to the accession of a country, according to Article 44 which says, in part: " (3) Such accession shall have effect only as regards the relations between the acceding State and those Contracting States which have not raised an objection to its accession in the six months after the receipt of the notification referred to in sub-paragraph (b) of Article 48. Such an objection may also be raised by States at the time when they ratify, accept or approve the Convention after an accession. Any such objection shall be notified to the depositary."

It that were to be the case, and a country objects to Guatemala's accession to the Hague Convention, then that country may choose to take one of several courses of action: (1) keep adoptions open regardless of the Hague Convention or (2)close adoptions from Guatemala based on what UNICEF, ISS and the EU have been telling them about the "horrors" of Guatemalan adoptions. In that case, it would be a very big task for the nationals of those countries to show and convincingly explain to their authorities the evidence of those organizations' agendas and to help us to defeat the Hague.

e. The PGN could declare an official suspension of all adoptions started after March 5th

A week ago, I thought that a suspension could be likely due to the "hands-off" attitude of, and apparent lack of support by, the US DOS. However, after seeing your success (now you are a mob and you rule, yes!) in persuading the DOS to take a more proactive position, I seriously doubt that the PGN will declare an outright official suspension.

According to Guatemalan law, an outright suspension would be unconstitutional because it would violate several articles of the Constitution and according to the Criminal Code, it would constitute more criminal offenses.

The PGN director Merida and General Attorney Rosales were elected Congressmen. They are out of Congress with permission. It's an election year, and they want to be reelected, so it would not look good to be accused of criminal offenses at election time. It would be a serious mistake for them to do anything that could result in criminal actions against them.

Any three lawyers can file a constitutional challenge if there were to be an official and outright suspension. However, the amparo/appeal I discussed in Part 1 of this update has to be filed individually and it benefits only that specific adoption case.

Remind your agency and attorney that the filing of an amparo is a powerful and effective measure that your attorney can use to pull your adoption case out of limbo in the event that the PGN continues to let the cases pile up which is really a passive-aggressive way to effectively 'stall' adoptions while they plot what to do next.

WEBSITE
Our website is under construction. I will post the address when it is ready.

I, and many others, am fully convinced that the Hague Convention is detrimental to adoptions and that it should be defeated around the world, so that adoption can give permanent and loving homes to more children.

I believe it is unacceptable and it should be inconceivable that the decision by a birth mother to place a child for adoption should be subject to the State’s (and UNICEF’s)power. Yes, there need to be regulations and checks and home studies and so on. However, all these things are, and have been, in place along with criminal penalties for transgressors. The HC and UNICEF are trying their best to take things many steps further with the hidden agenda of putting a stop to virtually all adoptions.

The condescending attitude of the proposed Valladares adoption law and of the Hague Convention that sets proposed or preferred geographical limits to the
adoptive parents, is not only puzzling, it will stifle the birth mother's wishes and unduly interferes in the process.

Now, how would it be taken if somebody came up with the idea that people should marry in the same order that they want children to be placed for adoption?
First among the community, then among the country and last, to a foreigner? Many arguments could support that, but nobody would like/accept that limitation. By the same token, who is UNICEF or The Hague to say, in these times of constant moving, that a child is better off in their own country, sick and neglected, than with a permanent family in another country? It is interference in adoptions and not help for the children.

Web Site Help
A powerful tool to communicate worldwide and to join forces against the Hague Convention on Intercountry Adoption would be a website where correct information would be posted. Possible names could include www.NoToTheHague.org, and a Spanish one called www.NoAlaHaya.org. The name maybe different, but the message of opposition has to be clear. People around the world should know what lies beneath a treaty that has mislead so many for so long. We cannot remain silent. If you want to set up the website, e-mail me. I can't do all the work, I don't have time; but perhaps I can get you started.

HARASSMENT OF FOREIGN PARENTS BY THE POLICE

An isolated case of two policemen trying to extort money from four US mothers (two with children and two without) was reported two weeks ago. Fortunately, they had a cell phone and they called their lawyer and other people. Somebody was brave enough to tell the policemen – over the mother's cell phone – that the US Embassy and the Police were on their way to arrest the policemen for harassment. The policemen then let them go.

Be sure to carry a cell phone while you are here in Guatemala, and if any police harassment ever happens to you, be sure to call someone to come to your
rescue. Have your lawyer’s cell phone and do not hesitate to call.

You can ask the policeman “¿Cómo lo podemos arreglar?” which literally jeans "How can we fix this?" Those are the code words for “What can we do, how can I pay for this (bribe)”, without really saying so. If the policeman takes the bait, and starts to hem and haw, or suggests that you pay a "fine" to him right there, or says that he has to check with someone, then you will know that they are not seriously planning to take you to their headquarters. Knowing that, you can assume they are just hassling you in the hope of getting some cash from you. At that point you can inform your lawyer of what is going on and even use the threat of US Embassy action. They will then know that the could get in trouble and likely, leave you alone.

Having said this, they are within their authority to check people and papers. So above all, take with you all the documents relating to your child, the adoption, your passport, etc., at all times. It is also important to have something that shows you are authorized, by the child's custodian, to have the child. Considering all the visits and travels by adoptive parents, there have been very few problems. Take the usual precautions when traveling in a large city and do not let possibility of hassles and problems prevent you from enjoying your
stay.

TO ADOPT OR NOT TO ADOPT?

To adopt or not to adopt is obviously a personal decision. So as much as I would like to give you the quick and perfect answer, I can't.

But the current problems should not be taken as a deterrent to adopt from Guatemala. The US Embassy is accepting applications for the DNA, the Family Courts are processing the cases; they are doing so very slowly, but we will take care of them later.

Passports and Civil Registries are better than ever at processing paperwork; obtaining a Guatemalan passport now takes only three hours. The roadblock is at the PGN but this is an internal "work stoppage" and not based on any legal grounds or new laws. We think that with a little push from the US DOS, the PGN will once again, albeit reluctantly, begin to process the files that are in its office.

Remember that this is not the first time that adoptive parents had problems that looked unsolvable. Last year adoptive parents had to wait two or more months for the passport or their already-adopted child and nobody was talking of not accepting a referral because of that. With extra legal work here in Guatemala, we were able to get a ruling that resulted in the passport office having to process the passports quickly.

Please try to keep things in perspective. Weigh your options and decide on a course of action. If you are asking me, I would suggest that you tell your lawyer
here in Guatemala to file an amparo; but the lawyer must do so quickly because there is a short time limit in which to file.

It might help you in this difficult time to focus on how we can come out of this temporary “PGN work stoppage" experience, stronger and more united.
Meanwhile, perhaps join the petition efforts or write letters to whomever might have an interest in helping you such as your elected officials and the DOS. Be
wary of any mass media coverage, though.

I hope you will go out of your way to join me and many others in doing what is possible to minimize the terrible after-effects of the Hague Convention on
InterCountry Adoption.

Best regards,

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

Posted by Kelly at June 19, 2003 06:23 PM