(Posted with permission from Susana Luarca, Attorney at Law).
Dear Friends,
THE CONSTITUTIONAL COURT RULING
On August 13, 2003, the Constitutional Court of Guatemala upheld the challenges against the law passed by Congress on August 13, 2002, (Decreto 50-2002) which approved the accession of Guatemala to the Hague Convention.
The CC ruling is already signed and the interested parties were served today with a copy of such ruling. It will be official three days after its publication in El Diario de Centro América, the official newspaper of the State of Guatemala. We trust that it will be done within the next two weeks.
Today was published in the Diario de Centro América, an amendment to the Decreto 50-2002 , correcting the part that falsely stated that Guatemala signed the Hague Convention and stating that the convention is open to accession. This last minute attempt by Congress to correct the law, has no effects on the ruling, because even though the convention may be acceded to, Guatemala cannot do it.
THE EFFECTS OF THE RULING.
The first and most important effect of the declaration of unconstitutionality of the accession to the Hague Convention is that such convention will cease to have any effects. Although the effects of the Convention were never clear, it paralyzed the adoption system in Guatemala for over six months.
Some people have expressed their concerns because article 47 of the Hague Convention establishes that the convention still will be binding after the denouncement of a State party, for the following twelve months. Others are worried that the ruling will benefit only those cases started after the publication of the ruling, leaving in a vacuum the cases started after March 5th. and before the official publication.
Guatemala is not a member of the Hague Conference of International Private Law. Guatemala was not present at the 17th Conference in May 29, 1993; its representatives never signed the Hague Convention and never ratified the convention. Now the Constitutional Court has ruled that the accession is not within the powers of the President of Guatemala. Based on all those reasons, we sustain that Guatemala cannot be bound by an international treaty that it never was a party to. But even if the Hague Conference insists in regarding Guatemala as a member to the Hague Convention for Inter country Adoptions for another year, that cannot affect anything in Guatemala. The Hague Convention IS NOT a law of the country because its accession violates our Constitution.
The other concern, that the PGN will reject all the adoption cases started between March 5th. and the date that the ruling is official, is also groundless. Three days after the ruling is published, all cases will have to be processed by the PGN, regardless of their starting dates, or the dates of the powers of attorney. The notarial process has always been valid. The PGN cannot base the rejection of the adoption cases on a convention that Guatemala is not a party to. It is be reinforced with the orders of the Court of Amparo. The PGN has chosen to disregard such orders thus far. This has forced the adoption lawyers to follow the necessary steps to start criminal procedures against the PGN lawyers.
Although not as quickly as some would have liked it, but the time will come when the warrants for the arrest of the first PGN lawyers are issued. Facing this, the rest of the PGN lawyers may take two positions: to systematically reject all adoption files, in defiance of the amparo, or to respect the laws of Guatemala, by giving an opinion about the legality of the adoption processes in the three day time that the law states. We expect that they will come to their senses and that they will abide by the laws of our country. It would be most unfortunate if they do not, because there is so much that they can loose: their professions, their jobs and their freedom.
THE PRE MARCH 5TH CASES
We are not saying that things will go back to the way they were before March 5th., because even before the Hague Convention crisis, things were not right at the PGN; there are still many cases that were started before that date, that are still delayed at the PGN . Although each case is being delayed for a different reason, a class action amparo could be filed by the lawyers of those cases. The grounds for the amparo would be that the PGN is requesting more requisites or documents than what the law states. That will move ahead all those cases that are being delayed for no valid legal reason. If your case is in that situation, talk to your lawyer about an amparo.
The law establishes that the person who wants to adopt a child must provide:
a. the birth certificate of the child,
b. the marriage certificate ( if the adoptive parents are a couple, which excludes adoption by two people living together),
c. deposition of two witnesses about the good habits, moral solvency and economical capacity of the adoptive parents to fulfill their duties as such, and
d. a home study recommending the adoption.
All the other documents that you gathered, are what the PGN has been demanding over the years without a legal right to do so. Also, a great majority of the cases are rejected by the PGN for reasons that have no legal grounds. The adoption lawyers have been trying to accommodate all the requests of the PGN, to prove that they are not hiding anything, in an effort to maintain the transparency of the process. We were who suggested to the PGN that the DNA tests were made mandatory in all relinquishment cases. We present all the documents of the birth mother and request new documents of the adoptive parents, because one day any of the PGN lawyers decides that the documents on file are not what they want. Every rejection sets back the file for at least two weeks, sometimes much more and deprives a child of a family for as long as it takes to get the file approved. The demands of the PGN change from one lawyer to another, from one day to another, creating uncertainty
that not only is illegal, but causes pain and suffering to all of those who wait for the finalization of the adoption. That is something that must be addressed with the proper legal actions.
Another option when the PGN rejects an adoption, is to present the case to a Family Judge and to let the judge to decide on the merits of the case. We know of a handful of cases that after being rejected by the PGN, were approved by the Family Judges. The PGN only gives an opinion which is not binding. The PGN does not have the last word in the adoption process, but the judicial option is a lengthy one.
The US embassy has stated that they will start accepting new cases as soon as the Constitutional Court ruling is official. Other countries will have to be contacted directly, to dispel the wrong ideas they might have of adoptions in Guatemala, that are preventing them from letting their citizens to adopt children from Guatemala.
We understand that the US embassy will keep using Lab Corp to do the DNA tests. The lab of Life Codes was removed from the PGN, but is still open in its usual address.
NEW ADOPTION LAW
The last and newest project of adoption law was just a desperate attempt of UNICEF and the PGN to regain control over adoptions, after the Constitutional Court ruling, but it never has been a real threat. The elections campaigns are taking most of the time of the Congressmen and the PGN is very busy right now, trying to find the way to justify the embezzlement of several thousands of millions of dollars of the funds of the Social Security, in order to exonerate their fellows FRG congressmen who are in jail for that reason.
NEW REFERRALS
If you want to adopt a newborn baby in three months, we suggest that you either wait until things go back on track, or to switch to another country. But if you are patient and have realistic expectations, taking into account that the PGN is not very willing to collaborate right now, you may accept a referral as soon as you feel comfortable with your decision. For some people, the CC ruling is enough, for others it is necessary to hold in their hands the official newspaper. The good part of starting an adoption now, is that by the time your file exits Family Court, the situation at the PGN will be as it should be. We expect that it will happen in a couple of months, or less.
I have been asked if the children whose adoptions are already started are going home for the Holidays. I say that it is very possible. If the PGN gets to work seriously, they could review the delayed cases in less than a month and those children would go home way before the end of the year.
Our goal is to get the files back from the PGN in three days, and that their objections are based on legal grounds. We do not regard that as something unreachable. It will not happen overnight, we are aware of that, but eventually it will. We are committed to work to make adoption as painless and as short as possible, without sacrificing any of the necessary safeguards to protect all the parties involved in an international adoption. Adoption is the process where “long” should not mean “legal”. An adoption process can be legal, trustworthy, ethical and very short.
Best regards,
Susana Luarca,
Attorney at Law,
Asociación Defensores de la Adopción. Guatemala City
Here is my question, and it would be great if Susana or someone could address this at some point:
Since the problems seem to be based in the PGN and with the party in power at the moment, what is expected to come from this year's elections? Is that party expected to maintain control of the government? If so, shouldn't we expect them to continue to alter adoption procedures? If the party is removed from power, what are the other parties' stance on adoptions?
We lost our referral a few weeks ago, and are in a position to either accept a new one or change countries. Accepting a new referral would take us past the end of this year. I would love to know what is going to happen after elections.
Tom
Posted by: Tom Sawyer at September 4, 2003 02:33 PMSusana,
Thank you so much!! To the waiting families, the information you provide is worth more than you'll ever know or more than we could ever express in words.
As for the babies being home by the holidays, may it go from you lips to God's ears.
God Bless!
Sincerely,
Dawn
my comment is to whom ever may can answer this. the only thing holding us from getting out of pgn is the DNA test and we are hoping once that gets done that pgn will sign off our case so we can finally bring our son home after a year. my question is if we get the test done, do we have to be resubmitted into pgn with that and then wait some more or will they just sign off on it and let him come home finally. please let me know if you or anyone can find the answer for me.
Posted by: Gina Torres at September 4, 2003 06:09 PMSusana,
I cannot find the words that can remotely come close to expressing my deepest gratitude and thanks to you. The regular updates that you allow to be posted bring peace to my mind. No longer can the unknown and the uncertainty of my daughter's future rain havoc on my heart. I am very pleased with the hard work that all of the lawyers have demonstrated, I also want to say thank you to the families of the attorneys, for their support. Thank you, I am truly greatful!
Yvette
Posted by: Yvette at September 4, 2003 07:00 PMSusana, Again I say thank you from all my adoptive parents and from my agency for your continued help in updating us all and helping us to understand the complications of adoption, not only in Guatemala but everywhere, even here in the US. It is my fervent wish that all of the officals in the adoption courts would understand that these little bodies need to get home to their loving families, where their every need will be met. Children need parents not temporary situations so that they can grow and develop into good citizens of this world, this is all we want to provide. Hang in there, keep up the good fight, we are all in this together.... Thanks again , Sandi
Posted by: Sandi Russell at September 4, 2003 07:22 PMSusana, Thanks so much for the updates. The only information we have been getting comes from you. It makes us feel more at ease just knowing that someone out there is keeping all of the families up to date. We really appreciate it!
Posted by: Annie at September 4, 2003 08:20 PMI just want to ditto what Annie stated. You have kept us up to date and given us a little ray of hope. Thank you so much for all your hard work and effort. I cannot tell you how much I appreciate it.
Posted by: Sharon at September 4, 2003 08:45 PMThanks for your updates. You are the only source of info. since our agency does little to keep us informed. We haven't been able to get a status of where our child is in the process nor pictures & medical updates for months. Although our DNA was completed in March, we haven't heard a thing. Hats off to your hard work; you give us hope!!!
Posted by: J at September 4, 2003 09:01 PMSusana,
Thank you for your detailed, careful updates on the adoption situation in Guatemala. My husband and I are working with the agency that Sandi Russell so lovingly runs. We are awaiting our referral, and are both anxious and very nervous. Because of the hard work and devotion of people like you and Sandi in helping all of us who desire to adopt a child from Guatemala, I am still confident that this was the right choice for us. Thanks again for all your hard work. It is truly appreciated!
Although you say IF the PGN gets serious they could get rid of the backlog in a month and have the referred children home by Christmas....what is your honest opinion as to whether they will do this or not? To this point they have seemed EXTREMELY unwilling to get serious! I want to be optimistic...BUT not sure we can afford to be. Also any idea when DNA testing will actually resume? It is the last piece of the puzzle before the PGN for us and our little boy Casey.
Posted by: Tom at September 5, 2003 08:12 AMThank you, thank you, thank you.... you have brought peace to our hearts, and a voice of reason to our thoughts. Our only information comes from your voice and heart. We are still waiting for DNA testing! Hoping you are right about bringing our little four-year old home for Christmas! As our lives go on... so do the lives of the children waiting. We are missing their developmental milestones, as grown, "professional???" people let egos and political agendas get in the way!! God Bless You for your hard work at uncovering and proclaiming the TRUTH. Deborah & James
Posted by: Deborah at September 5, 2003 11:25 AMThank you for this web site and for the detailed and caring updates. Though there are still no certainties or guarantess, it SO much better to walk in the light during this adoption process than to sit in the dark.
Wendy
Posted by: Wendy at September 5, 2003 12:40 PMOn 9/5, I received an update from our IL Senator's office, who told me the State Department said to them today that even if the decision becomes official "soon" by being published, they (State Dept/Embassy)are "watching" pending legislation in Guatemala about adoption and may not take action (resume DNA and VISA processing) until it is clear what will transpire with pending legislation. I was very disappointed to hear this, as it seems the State Department and US Embassy continue to legitimize the circus down there. The law right now recognizes the notorial process, which is what the State Department and Embassy should follow! Has anyone else heard word of this? How concerned should we be?
Posted by: Lisa at September 5, 2003 03:28 PMLisa,
Thanks for the update! Even if the news is not good, any news is very appreciated.
Yesterday, I emailed my Senator's office(NJ)and I will let every one know once I hear from them. It will be interesting to see if they give me the same response.
Dawn
Posted by: Dawn at September 5, 2003 04:44 PMSusana,
Thanks for being our front-line communicator! Perhaps you can help to quiet my very pessimistic concerns which are as follows:-
1. I have heard from our Government rep. that it will take 12 months for the Guatemalan government to end their accession to the Hague Treaty with its requirements to inter-country adoptions, do you know what this will mean to the state of current adoptions?
2. Do you have any idea from members of the PGN whether they intend to carry on on a go-slow with current adoptions, whilst they bring in the requisite new laws or try to fight the decision of the Constitutional court?
3. Given that Guatemala is going to be completely involved in the November 9th elections, so that month's work at the PGN looks doubtful and that holidays at Christmas and the New Year take over 4 weeks, do you think it fair to hope that the back-log of 6 months adoptions will be caught up by March 2004? And that the post July 1st cases may take longer than before if they are on a go-slow,and so we are realistically looking at maybe 10 months to process so sometime next December is a worse case scenario? The reason why it's so important to us is that knowing the worst means whatever happens will be a plus! We are very concerned that we will wait, at best if as you say the back-log cases can be dealt with by Christmas and then another 6 months, so June 2004. Only to have new laws which have been put in place in the mean-time outlawing the notorial system. Perhaps you can reassure us? Thanks for all your info. we believe knowledge is power.
Rosy
Posted by: Rosy Casimir at September 6, 2003 12:20 PMThanks for all you do. I'm worried about not having an amparo. The news lately looks to favor cases with an amparo. Am I wrong? I would love for someone to clarify if people with an amparo will be processed first or does it not matter anymore? My agency told me about 6 weeks ago that my atty filed for an amparo. But when I asked her this week she didnt remember saying that. She said "You do not have, nor do you need an amparo anymore." Is this correct? Please give any info you might have on this matter.
Again, For people like me, who get zero info from their agencies, we need people like you.
GRACIAS
Can anyone tell me what a post-March 5th, no DNA adoption case that was recently sent to the PGN has to look forward to? Do I have standing to file an amparo or do I need DNA results? My agency just tells me to be patient.
Posted by: Tonja at September 8, 2003 05:06 PMSusana, Your words are welcome to so many people. I just wish they held out any hope for the mess Guatemala has made of abandonment cases. When it comes to grey areas, the abandonment process takes the cake. Is there anything in all these new rulings that might mean an improvement in the abandonment process?
Posted by: DK at September 8, 2003 08:56 PMMy adoption case is now in PGN. Can anyone advise me the worse case and best case scenario as to when I can bring my child home?
Posted by: Sherry at September 9, 2003 05:39 PMDear Susana..,
What can we do legally to get the PGN moving..Can we go to the courts and have a Amapro charging the PGN with failing to obey the court??Can all the 100+ lawyers fine the PGN the money to feed and care for our children, since they are the ones preventing us for getting our children??
Please answer this...Marion
Dear Susan,
I can't believe I found this site. We started our processing in the US last September. I wanted siblings and we were finally given a referral in May. We had all of our paperwork in Guatemala by June 5. Now the wait. I am going crazy here without news. The US Embassy in Guatemala has been less than helpful. I just wish I had found this site sooner. Is there anything we can do to get things moving??
Hello - we have all of our paperwork including the INS approval and now do not know whether to go ahead and accept a referral or wait for things to become more settled - can anyone give us some guidance????
Posted by: Trisha at September 11, 2003 01:01 PMSusana,
Te voy a escrbir en castellano porque es mi primer idioma y asi me puedo expresar mejor. Solo te queria decir que es increible el trabajo que haces para ayudar a toda esta pobre gente que tiene tanta ilusion en adoptar de Guatemala. Mi marido y yo hemos cambiado de programa a otro pais. Yo naci en Peru y mi trabajo me lleva a Guatemala y a todos los paises de Latinoamerica con bastante frecuencia. Mi experiencia habiendo nacido y crecido en unos de estos paises me demuestra que estos gobiernos se toman siempre su tiempo y todo gira alrededor de la politica. Ahora tienen elecciones en Guatemala en noviembre proximo, tu y yo sabemos lo que eso significa...solo espero que en verdad este programa se mueva y pronto para beneficio de tantas criaturas. Yo personalmente no estoy muy optimista.
Posted by: Gina Graf at September 11, 2003 03:47 PMHello,
I am working on a story for Lifetime Television's website (www.lifetimetv.com) about adoption and baby trafficking. If any of you has had a troubling experience with trafficking (either domestic or international) during your adoption quest, we would be so grateful if you would be willing to share it with our readers. So many parents are willing to do so much in order to adopt, and sadly there are unscrupulous people willing to capitalize on that eagerness. We hope our story will help protect future adoptive parents -- and perhaps even draw international attention to this terrible problem.
I realize this is an extremely sensitive subject, and I very much appreciate your help. Anyone who chooses to participate in this story has my assurances of total privacy and, of course, my utmost respect.
Thank you so much!
Jessica
__________________
Jessica Reaves
for Lifetime Television