It's been an extremely busy day in the office but I didn't want it to pass without acknowledging that today, Sept. 13, is the first anniversary of the official end of the Hague Treaty in Guatemala when the decision of the Constitutional Court was published in the national newspaper.
For a few months I have been working on a book about our adoption and adoption in general. So for those of you with a few minutes to spare, here is the section I wrote for the book describing what it was that happened. As I read this just now, I couldn't help but to think of the stereotypical Grateful Dead lyric from the song Truckin: What a long, strange trip it's been....
That Pesky Hague Convention
There was something else going on with Guatemalan adoptions in general that merits a book on its own rites. After much deliberation on how to integrate this into the story, it seemed most viable to describe it on its own and then just allow the emotional agony it caused to naturally make its way into the story itself.
This “something else going on” was Guatemala’s attempted accession to the Hague Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption. The topic of international human rights type agreements as they relate to intercountry adoption will be focused on later, for the time being let it be enough said that these things can raise holy terror on the poor folks that get caught in the middle of a country trying to comply with one. The Hague Convention in Guatemala was no exception.
The Hague in Guatemala will be described as how it came to us as we went through it. To step back in time, unbeknownst to us, in November while we were in the middle of our homestudy, Guatemala essentially agreed to join this Convention. This in itself was not a major cause for alarm. Most countries take years to develop a system of compliance and formally accede to the Convention. Our adoption should have long since completed by the time this would happen. Then on March 13, 2003, the Guatemalan Congress made a surprise announcement that as of March 5, 2003, it had formally acceded to the Convention.
What this meant to families like ours was uncertain. Quickly, the in-process families were divided into two groups, “pre 3/5” and “post 3/5”. Determining which category you fell into was not clear for many families because of the official criteria needed to be “pre 3/5”. If the birthmother’s relinquishment, called the “first acta”, and the power of attorney were both formally registered before March 5, then you were considered “pre 3/5” and your case would be able to proceed according to the old rules. Because these two criteria were not normal milestones to parents in the process, they were generally not noted by the adoption agencies or communicated to the parents. As a result, it took many people quite some time to find out which group they were a part of.
We were clearly in the “post 3/5” group, which appeared a more precarious situation. For a few months, everything pretty much proceeded normally except for the fact that no one could ultimately get out of PGN, because there was no legal system in place for adoptions covered under the Hague Convention. The Convention itself is a bunch of principles. It is up to the country to work out the details of how to implement those principles. Guatemala had not worked out the details. So for the time being, until they enacted the new system, we were caught in limbo.
Early on in Isabel’s adoption, I wasn’t very concerned about this. The rumor in the adoption community was that a few new documents would be required and that it would all be put to rest within a couple of months. Since we were early on in the process, it would already be a few months before we got to the point of being stuck in PGN with no way out.
In June, UNICEF brought the head of the PGN (the PGN had been declared the official “Central Authority” for adoptions as is required when one accedes) to the Hague. Because of UNICEF’s public and covert attacks on adoption, we knew this could not be a good thing. When the head of the PGN returned, it became clear that he now had changes far greater than just a few documents in mind.
On July 1, a new adoption system was announced. Sort of. It was very clear on a few things. First of all, the notaries and lawyers were now out of the equation. Private foster care was to be ended and only four hogares in the country were authorized for housing children being adopted. In addition, all future referrals had to come directly from the government. All referrals for cases that were “official” (same standards as “Pre 3/5”) before 7/1 would be recognized.
Now the community was split into three groups. Even though months had passed since March, very few of the “pre 3/5” cases were being completed. Then there were the people like us who were no longer “post 3/5”. We were now “pre 7/1”. The new “post 7/1” group, while fewer in numbers, were in the worst situation. Because of what had been announced, they did not know if they would be allowed to adopt the child whose picture and vision they undoubtedly already loved.
What was not clear was how someone was supposed to receive a referral from the government, what would physically happen to the children currently in foster care, or how parents were supposed to complete the cases. We were told that all cases needed to be presented to the Central Authority, a new office located within the PGN. But since they were claiming that our lawyers and notaries no longer had any involvement and they had not made it clear what would happen next, parents realized that trying to have the files moved to this Central Authority could very well mean they were losing their only representation in Guatemala. Some lawyers did comply and turned over the files. But because of efforts underway to try to turn back the Hague altogether, most lawyers and parents waited to see what would happen to those cases that were given to the Central Authority before doing so ourselves.
A legal battle challenging the constitutionality of the Hague Convention in Guatemala now rose to new levels. There were a number of different fronts to this battle. As I understand it, one challenge had to do with the fact that the Guatemalan Constitution prevents the government from becoming party to international agreements that it was not involved in drafting. Another focused on Congress having overstepped its legal authority in acceding to the treaty. Yet another involved the fact that by naming PGN, which is part of the executive branch, as the Central Authority and leaving the implementation up to them, Congress had effectively granted legislative powers to the executive branch – an understandable no-no (except for in the United States where Congress seems happy to see the executive branch usurp its sole authority to wage war!). Finally, the Guatemalan Constitution, to its credit, is very specific in the rights of the woman to decide the course for her child. And the function of the notarial system is deep rooted in its function and purpose. What was happening here went beyond just the adoption laws, it was setting precedent. I’m still not sure how these issues combined into different formal legal challenges. The bottom line was that there were a few different challenges being brought before the Guatemalan Constitutional Court that could overturn all this Hague nonsense.
There was another front to be waged in this battle. This had to do with the nature of the Convention and I apologize for the disgustingly technical details. By definition, the Hague Convention is only valid between countries that have implemented it. The United States had not implemented the Convention. The United States had signed on to it, agreeing to implement some day. But it had not implemented it and thus adoptions between the United States and Guatemala were not covered under the Convention even if none of the constitutional challenges worked. There was hope that if the United States officially declared its “Third Party” status, everything could go back to normal until the United States eventually implemented it.
A group of lawyers banded together in an organization known as the Associación Defensores de la Adopción (Association in Defense of Adoption) and sought out the help of a reluctant Guatemalan Bar Association. One notorious and brave attorney took the gutsy and unprecedented move of keeping the parents abreast of what was happening. I venture to say it was gutsy because by doing so she was to a certain degree laying the legal battle’s strategy out for all to see. Secondly, much of what she said was her best and honest opinion. But people desperate to get their children home took this as the gospel and were quick to jump to conclusions if things didn’t go as they should. In addition, for a time these updates were done on an e-mail list known as “The Big List” with over two thousand members. Inevitably, her voluntary updates led to some uncomfortable debate and endless questions being asked of her. I’m sure that she also got infinite e-mails from parents looking for help because of some intricacy involving their case. Lastly, it created an awkward situation where many parents knew more about what was going on than did the adoption agencies they paid to represent them. For many agencies, Guatemala was a very small portion of their operations and they weren’t deeply involved in the details. This I am sure led to some of sort of schism for her openness in an unfortunately secretive industry. Nonetheless, “Thursday Updates” became a ritual for many and about the only thing they had to lust for in the week. These updates, when copied and pasted into a word file, make up anywhere from seventy-five to one hundred twenty-five pages depending on the font size.
From July through the beginning of August, the adoption system for the most part came to a screeching halt. The US Embassy stopped processing cases, refusing even to grant requests to initiate DNA tests. The cases presented to the Central Authority weren’t going anywhere and the children were still in foster care. Cases were receiving Previos from PGN for not being Hague compliant and there was no known way to be Hague compliant. Even the “pre 3/5” cases weren’t being completed. An abyss for certain! The most difficult part for most people was the fact that there was no guarantee of any end in site. Something had to break sooner or later, but which it would be was unknown.
At one point of group of ninety-seven notaries filed a legal proceeding called an “amparo” (appeal), accusing the PGN of breaking the law by not allowing the notaries to perform their duties as defined by the Constitution. The courts agreed with the notaries and if everything proceeded according to law, cases should start moving again even if the Hague challenges were still up in the air. In a symbolic way, this was also the courts agreeing that the Hague was unconstitutional in Guatemala. The only problem was enforcing the amparo. In order to do this, criminal legal charges had to be brought against those not abiding by the amparo. This took more time, money, and resources. It is worth noting that by and large the notaries did not solicit money from in-process families in order to fund these challenges, although some families did have to pay for the foster care as cases were taking much longer than expected.
On August 13, the Constitutional Court of Guatemala sided with the notaries that Guatemala’s acceding to the Hague was unconstitutional. The battle had been won, although it didn’t seem like it for quite a while. For starters, the decision would not be official until the day after it was printed in the national newspaper, El Diario de Centro América. Exactly one very long month of skeptical unease later, the decision became official. Because of the stand still that had occurred, even then it took quite a while to get past the backlog of cases that had been stockpiled.
In total, it’s estimated that 1500 – 2000 families were caught in the middle of what is now known as the Hague Fiasco. While it was a trying time, it was also a time of great solidarity in the adoption community. Lawyers, agencies, and parents were working together and much of the secrecy disappeared. Grassroots efforts of various sorts were organized. Elected officials were lobbied. Groups opposing intercountry adoption and supporting the end of adoptions in Guatemala were targeted with information campaigns and petitions. While all these efforts ultimately did not impact the outcome since the lawyers had really taken care of it unilaterally, it brought together many people, enlightened some on the politics of children, and gave others a new direction and outlook in their lives.
While the whole Hague Fiasco may only have been five months from start to finish, it seemed like an eternity to those in the eye of the storm.
Posted by Kevin at September 13, 2004 07:24 PMKevin, I can't wait to read the book. Bravo bravo!
Posted by: Becky at September 13, 2004 09:49 PMKevin,
Thank you so much for this article. I started my process in January of this year, and have of course known about the Hague mess, but never really had it explained to me before.
Thanks for the enlightenment!!
Posted by: Lisa Treacy at September 13, 2004 09:54 PMThank you, Kevin, for posting this. It has always been so hard to explain to people what exactly happened during that time, and someday I want our daughter to understand what the "Hague Fiasco" was all about. I will print this and put it into her lifebook. It is a clear picture of what happened. I am among those who will never forget those horrifying months of waiting and waiting and being glued to the computer for any sign of any changes in Guatemala. Emmie has been home with us now since January, 2004. She was 11 months when she came home. Thanks again. Well done.
Posted by: Julie at September 13, 2004 10:00 PMKevin,
I too did not want the day to pass without acknowledging that today, Sept. 13, is just two days after Sept. 11. I too was caught in the hague. Somehow the Hague Fiasco was a blip on a screen compared to things that took place only two days before sept. 13. I know the two should not be compared, Its just that, one would hope that for ONE second we might realize that there ARE worse things then our adoption bumps. I for one feel lucky I was able to have the honor of adopting my son. I am greatful as well. My adoption was caught in the time frame of the "HAGUE FIASCO". Were there times I was scared ? Of course. For me all I can think about on Sept 13 are the many faces we all watched on the news. Faces held by family's looking for there loved ones. Face who all had a history. And now I think of the children who have lost mothers or fathers on sept 11.. I cannot imagine looking back on this day and thinking of my pain or my adoption. For me it would be wrong. As you yourself say kevin. you can bomb the world into pieces but not into peace. You say those five months seem like an eternity to those in the eye of the storm? I imagine the folks in tampa were the only ones who felt an eternity when they truly were in the eye of the storm. International adoption is a risk, it is a time of uncertainty, for some a time of anxiety. In the end its a gift and a blessing.What I learned is that while I may have thought the hague may prevent me from adopting a child, there would be another path to take not matter what. All in all I cannot and will not believe that the Hague was the worst or even close to the worst thing that could happen to one in this life time, I think sept 11 is proof of that. Mostly it gives mes "perspective". This is my opinion that's all, I believe that its our right to post our individual opinions.
I do not want to offend anyone, nor do I judge anyone. Again these are my thoughts on the day.
Peace,
Maria
Thanks, Kevin, for this excerpt from the book. I , too, plan to print it out and put it into my daughter's life book. I agree that the Hague Fiasco's effect on adoptive families was much less a tragedy than the effect of 9/11 on those families involved. However, we can't lose sight of the disastrous effects the Hague could have had on children in need of adoption. It would have left many thousands over the years languishing in vastly underfunded orphanages or, worse, dying on the street. The effect on those children would have been just as great or worse than the effect of 9/11. We must remember this in order not to become complacent and possibly allow something of this nature to succeed in the future. I have my daughter home, but I am now, by virtue of her adoption, a part of a Guatemalan American family. It is now, I feel, my responsibility to help care for the children in need of adoption in the future.
Posted by: lisa at September 14, 2004 08:44 AMKevin,
The only thing missing here is that some of us are STILL waiting. I accepted my referral on May 30, 2003 for siblings. At that time I was totally unaware of the impending Hague fiasco. I had been paper ready since January. The DNA tests were not performed until the end of September and then my paperwork was 'stuck' in the US Embassy until mid January. Back into the PGN in March when my case received a Previos for my paperwork being too old. Completely redid the paperwork and paid for a new I600A, home study, fingerprints, etc., and resubmitted by the end of May. My paperwork got initial approval on June 2. Then we went into limbo. I'm not sure exactly what needed to be investigated, but it had something to do with the children’s birth certificates. I got word early last week that the PGN is to sign my papers either last Friday or this Friday. Maybe soon. But again, some of us are still waiting. Caught in the endless game of who's got the pea. BTW, I have been paying for foster care since September last year.
Maria, I agree with you that certainly the Hague was not as much of an immediate tragedy as 9/11/01. But the Hague decision also came down two days after the two anniversary of 9/11, not after the tragedy itself. I don't wish to diminish the tragedy that was 9/11, in fact it is the single largest "non-state sponsored" tragedy in recordable history (or at least so claims Noam Chomsky). In fact, I came dangerously close to losing my father on 9/11 but that's another story. However, I would also say that we need to keep it in perspective and not allow it to be interjected into everything else we face in the world.
And as it relates to 9/11, history, and Latin America, we should also acknowledge that 9/11 is the anniversary of the 1973 bloody coup in Chile that overthrew popularily elected Allende and placed the murderous Pinochet into power. And Pinochet killed far more people than on "our 9/11". Pinochet's power rule, supported by the US, was also interpreted as a signal of what was considered acceptable behavior by those in Guatemala. Some accounts I have read attribute the escalation of the atrocities in Guatemala's Civil War, including the creation of the Civil Patrols and the Scorched Earth Policy, that killed well over 50 times as many people as on "our 9/11" to what had taken place in Chile. I wonder if Henry Kissenger, believed to have given the thumbs up to Pinochet, remembers this while he grieves for the loss of American lives each year.
This excerpt is about 150 pages into a story about the emotional struggle of infertility, the adoption decision, one failed referal, and a beautiful little boy we were adopting who passed away six weeks into the process. I don't think that there was anything written in it that made a claim for this to have been one of the greatest tragedies of our time in history, but it certainly was on a personal level.
For me personally, the Hague Fiasco was without a doubt the worst and most difficult period of my life. I suppose I am lucky that this is the case as it shows how fortunate I am.
Finally, PLEASE DO post your opinions, that is what the comments are all about. And certainly no offense is taken. It's kind of odd that in the prologue to the book I warn people about my strong, often offensive, opinions. And I say that opinions belong only to the person who holds them, so they should never offend anyone else.
Yes, we can bomb the world to pieces but we can't bomb it into peace. And look at the havoc on the world, right or wrong, that Osama caused with 9/11. How many innocent Muslim civilians, American soldiers, and children have died because Osama had to go and pull a cowardly low blow on the United States. What did he think would happen to those he purports to support? It is all very sad...
Peace,
Kevin
Posted by: Kevin at September 14, 2004 12:22 PMThis is indeed a big day for all of us who were caught up in this mess. I don't know what we would have done without this site. I for one came here at least 10 times a day. It took us until October 29 2003 to get our son home but he is worth every second of the battle. He has changed our lives. Thank you Guatadopt from thebottom of our hearts.
rjv dav and Anthony
Posted by: ralph at September 14, 2004 12:46 PMWell said Kevin. I plan also to print this for my daughters lifebook. I finally brought my daughter home this past February after being post March 5 by only a few days. Last year was a horrible year of the unknown. But I am so thankful for the bonds that were established with other "waiters". Thanks to this website for the information that was given to us and continues to enlighten us.
Ritta, I am so sorry to hear that you are still waiting to bring your children home. I was not aware there were still people waiting. I pray all will be resoved soon.
Kathy(Mommy to 21 month old Eliana)
Hi Kevin,
I replied to another post you wrote on the same subject and you were kind enough to e-mail personally about the problems we faced. As an update, I wanted to let you know that we are out of PGN and waiting for notice to travel - FINALLY. For those unaware - we accepted our referral in February of '03. We were considered post 3/5 we found out after a lot of anguish. For us, the past 6 1/2 years have been very difficult, the past 19 months in particular. We too have been very fortunate, and have not faced a great amount of tragedy. We have faced tragedy however, and what we have gone through has been tremendous to us. September 11, 2001 was such an insanely dark day for me, but we so often forget as Kevin has pointed out, the tragedy faced ouside this nation. I recently commented to my husband about how sad it is that we turn our backs on literal genocide in other countries all the time. September 11 should serve as a reminder to us that we cannot stand idly by as evil flourishes. Advocating for children in Guatemala and for their adoptions is a small part of fixing the problems in this world, but it is a part, and our efforts there are needed. Our emotions involving these children, our children, are real, and painful. As someone who has been in the adoption process a long time, I have watched people struggle who've been at it much shorter a time than I. Does my struggle outweigh theirs? Do my feelings, because I feel they may be more legitimate negate theirs? No! To them, what they are going through is horrible. We each have our trials, and we should not forget others in theirs, but this life is not a contest for martyrdom, and our sympathy for others should not be saved up for only those in the worst imaginable grief. We should not be made to feel that our grief is unwarranted simply because someone else's may be worse.
Chelsea
Posted by: Chelsea Flitton at September 14, 2004 08:57 PMHi Kevin,
I replied to another post you wrote on the same subject and you were kind enough to e-mail personally about the problems we faced. As an update, I wanted to let you know that we are out of PGN and waiting for notice to travel - FINALLY. For those unaware - we accepted our referral in February of '03. We were considered post 3/5 we found out after a lot of anguish. For us, the past 6 1/2 years have been very difficult, the past 19 months in particular. We too have been very fortunate, and have not faced a great amount of tragedy. We have faced tragedy however, and what we have gone through has been tremendous to us. September 11, 2001 was such an insanely dark day for me, but we so often forget as Kevin has pointed out, the tragedy faced ouside this nation. I recently commented to my husband about how sad it is that we turn our backs on literal genocide in other countries all the time. September 11 should serve as a reminder to us that we cannot stand idly by as evil flourishes. Advocating for children in Guatemala and for their adoptions is a small part of fixing the problems in this world, but it is a part, and our efforts there are needed. Our emotions involving these children, our children, are real, and painful. As someone who has been in the adoption process a long time, I have watched people struggle who've been at it much shorter a time than I. Does my struggle outweigh theirs? Do my feelings, because I feel they may be more legitimate negate theirs? No! To them, what they are going through is horrible. We each have our trials, and we should not forget others in theirs, but this life is not a contest for martyrdom, and our sympathy for others should not be saved up for only those in the worst imaginable grief. We should not be made to feel that our grief is unwarranted simply because someone else's may be worse.
Chelsea
Posted by: Chelsea Flitton at September 14, 2004 08:58 PMKevin,As I sat here reading your great article tears were streaming down my face because it brought back all the horific feelings my husband and I felt while waiting for answers about our adoption of our beautiful angel Alexa!!!!We were caught in the battle and it took us three denials of our marriage license from the P.G.N.Our homestudy running out and finding out we had to update it but unfortuantly our Homestudy Person Carol passed away very suddenly and the list goes on. We finally got the call that we were to travel after two years of waiting and brought our daughter home. We will be celebrating her Happy Adoption Day Oct 13th.When we got Alexa she was 14 months old and now she is 2. Thank You for making some since to the whole Hague mess.
Kathi N
I hope Kevin gets personal satisfaction out of his time spent to help us all as mentioned above. It is so important to all of us parents and parents -to-be as said in many messages above. It is such an incredible journey and I too checked this site many times a day during the hauge delay and our wait for our precious little Ally, now 13 mo old. The best wait of my life, many thanks to this site and those that make it work.
Posted by: katie huebschen at September 15, 2004 10:52 PMKevin,
As always, well said! I am so impressed that you were able to write such a clear and concise synopsis of such an unclear and unnerving situation! I too will print this out for my daughter's lifebook, and I can't wait to buy your book!
Michelle