Law Update

There?s not really much new news on the law. It will likely be presented to Congress next week. The law needs to be voted on and approved three times, however long that process might take. Modifications to it can be made along the way. It is possible for a law to be passed on one vote as an emergency measure, but that requires a 2/3 vote of the full congress, not just of a quorum. That is unlikely to occur.

I do not have any insights into the probability of the law passing. I can say that efforts are underway to have it voted down through the Guatemalan political process. In addition, plans are being developed for a public relations campaign about intercountry adoption in Guatemala. Your help in funding that effort will be requested in the days to come. And should it pass, constitutional challenges to the bill will be made as occurred with the Hague.

Below is a translation of the bill. I should say that it is a translation of the bill turned down by the commission in August. I believe this is the same bill that will be presented to Congress. Don?t ask me why it?s dated Feb 17? Shortly, I hope to make available detailed information about the legal issues with this proposal.

PROJECT OF JUDGMENT

HONORABLE COURT

Dated February 17th of 2005, the Congress of the Republic knew the Initiative of Law registered with number 3217, forwarded by representatives Jorge Luis Ortega and partners, which proposes the approval of an Adoption Law and arranged to transfer the initiative to the Minor and Family Commission, in agreement with what is established in articles 34, 40, and 41 of the Organic Law of the Legislative Body for its study and corresponding judgment.

I. PRECEDENTS

The current regulation of adoptions has not yet satisfied the social function it has to comply with due to the existence of a series of defects and normative insufficiencies. It can be pointed out that the most serious problem so far is that the current law does not properly regulate the ?international adoption?. Some norms contained in the Civil Code, the Commercial Code of Procedure and the Regulating Law of Notarial Proceedings in Voluntary Jurisdiction Affairs have been determinating for such noble institution to become an illicit sale and traffic of minors. Denunciations and statistics of easy ?international adoptions? show a rough reality in which a minor has become an object or merchandise, violating his or her human rights. Such a problem, not only in Guatemala but in the rest of the world, has moved into the elaboration of specific international instruments that regulate the protection of the minor. The Hague Convention Relative to Protection and Cooperation in International Adoptions Matters, indicate that its objective is to prevent substraction, sale and traffic of minors. To avoid a culture of disrespect to human rights, lack of institutional control and lack of transparency in adoption proceedings, today this initiative is presented which has as a purpose, to regulate the adoption institution by means of an specific law.

II. ANALYSIS OF THE COMMISSION:

After having studied and revised the presented proposal, this Legislative Commission considered the following:

The Law Initiative introduces improvements in the acknowledgement of substantive rights of adoptions subjects. After listening to arguments from different sectors of society which, in some way are involved in the protection of minors and family, some changes were made to the original project, which have as purpose the strengthening of the adoption institution.

In spite of the importance and nobility of the adoption institution, it is precise to recognize that its current regulation has not satisfied the social function it such comply with, due to the existence of a series of defects and normative insufficiencies. In Guatemala, some causes of this phenomenon are poverty in which more than half of the Guatemalan population lives in, great demand of children for adoption on behalf of foreign countries, lack of institutional control and transparency of adoptions, civil war and the lacking of a culture of respect in many sectors, in our country as well as destination countries. In 2004, Guatemala ranks fourth worldwide due to the number of international adoptions, according to the United Nations Organization (UNO), the proceeding to adopt is so free it allows any citizen of any State to adopt a Guatemalan child. Due to the lacking of existing controls, currently countries that are members of the European Union have suspended the adoption of Guatemalan children. Also, there are no existing strict controls of origin of the child, parents? consent or necessary investigation to know if the child has been stolen or illegally substracted. Lack of control in preceding acts of adoption have permitted the illegal traffic of children, allowing an inappropriate selection of adopters when considering their economic capacity as most important in stead of the superior interest of the child or teenager. Also, it is worth mentioning, that the Attorney General?s Office has implemented a specific area for adoption cases that end up in criminal processes due to the existence of constitutive irregularities of crimes in the current adoption process.

The Law Initiative implements improvements in the recognition of substantive rights of children; equals the condition of biological and adoptive child, does not establish differences in filiation or succession matters, the adoptive child acquires exactly the same rights and obligations as a biological child, in accordance with the right to equality guaranteed by the Constitution. Also, the adoption is recognized as an indissoluble bond as a biological filiation link, derogating the poor assertive revocation currently contemplated in the legislation in force. The Law Initiative protects the marriage institution and the legally constituted union, allowing only an adoption by only one person said person is one of the spouses to another?s child, when and adopter is a family member of the adopted one or supposed where the superior interest of the child is protected.

The Law Initiative does not suspend the notarial proceedings of adoptions; it is still carried out after an administrative proceeding where the suitability of future adopters is investigated. In said administrative proceeding, it is wanted to guarantee that the consent to give a child in adoption is not motivated by an economical motivation.

Considering the responsibility of the full enjoyment of children?s rights corresponds to the State, this will be the one in charge of guard that adopters? meet proper conditions to adopt a child by means of a Central Authority, a branch office of the Attorney General?s Office, which will have the purpose of establishing control and measurements to guarantee several aspects: the order of priorities regarding the protection of children, takes charge of, mainly of providing proper support to the biological family of the child so this can assume its responsibilities with him; and if said measure fails, make sure that the child is adopted by ideal persons. It will be a technical institution whose function will limit itself to the administrative proceeding previous to setting in motion notarial proceedings of voluntary jurisdiction or judicial adoption proceedings.

The Commission is aware that several years have passed since the discussion of the need of elaborating a new adoption law for which it considers that it no longer has to be delayed the approval of an instrument which protects the interest of children in an adoptability state.

III. JUDGMENT OF THE COMMISSION:

In virtue of the Constitutional Mandate of the State to protect the family and the constitutional norm which declares the protection of children and teenagers who are in a situation of vulnerability, due to abandonment or orphanhood, as national interest, to its effect it establishes article 171 literal a) of the Political Constitution of the Republic; articles 39, 40, 41, 111 and 112 from the Organic Law of the Legislative Body, the Commission of the Minor and Family issued a FAVORABLE JUDGMENT WITH MODIFICATIONS to the registered initiative with number 3217, forwarded by the representative Jorge Luis Ortega Torres, which propones the approval of an Adoption Law, and submits it for the consideration of the honorable court so, in case of having its approval, said can become a Law of the Republic.

GRANTED IN THE COMMISSION OF THE MINOR AND FAMILY?

Jorge Luis Ortega President

Carlos E. Velá³±uez Vice-President

Hilda Jeannette Pé²¥z Secretary

Jorge Mario Barrios

Rafael Barrios Flores

Mario Sola񯳊
Oliveiro Garcí¡ Rodas

Juan Giordano Estrada

Carlos Alberto Godoy

Carlos Dumani Guererro

Hugo Hun Ponce

?gel Noe Lemus

Benjamin A. Paniagua

Jorge Villatoro

Eduardo Zachrisson

LAW INITIATIVE 3217 EXHIBITION OF MOTIVES

HONORABLE COURT:

The herein law initiative has regulating as its purpose, as established in the Law of Integral Protection of Childhood and Adolescence, all relative to the noble adoption institution and to make a reality the principles contained in the Children?s Rights Convention, which is a law in Guatemala since 1990 and the Hague Convention Relative to Protection and Cooperation in International Adoption Matters.

In spite of the importance and nobility of the adoption institution, it is precise to recognize that its current regulation has not satisfied the social function it such comply with, due to the existence of a series of defects and normative insufficiencies. In effect, to the Guatemalan society the ?international adoption? has become a synonym of illegal sale and traffic of children and so far no legislative answer has been given which properly regulates this institution, to prevent frequent and uncontrolled abuses that have converted the Guatemalan child in a traffic object, violating his or her human rights. Said problem, not only in Guatemala but in the rest of the world, has moved into the elaboration of specific international instruments of specific protection; in fact, as established in article one of The Hague Convention Relative to Protection and Cooperation in International Adoptions Matters, its objective is to prevent substraction, sale and traffic of minors. In Guatemala, some causes of this phenomenon are poverty in which more than half of the Guatemalan population lives in, great demand of children for adoption on behalf of foreign countries, lack of institutional control and transparency of adoptions, civil war and the lacking of a culture of human rights? respect which has permitted the creation of an international web that profit in many sectors, in our country as well as destination countries.

In 2004, Guatemala ranks fourth worldwide due to the number of international adoptions, according to the United Nations Organization (UNO), the proceeding to adopt is so free it allows any citizen of any State to adopt a Guatemalan child. Also, there are no existing strict controls of origin of the child, parents? consent or necessary investigation to know if the child has been stolen or illegally substracted. The current legislation is accused for the lack of control in preceding acts of adoption have permitted the illegal traffic of children, allowing an inappropriate selection of adopters when considering their economic capacity as most important in stead of the superior interest of the child or teenager. Also, it is worth mentioning, that the Attorney General?s Office has implemented a specific area for adoption cases that end up in criminal processes due to the existence of constitutive irregularities of crimes in the current adoption process.

The Law Initiative introduces improvements in the recognition of substantive rights of children. Equals the condition of biological and adoptive child, does not establish differences in filiation or succession matters, the adoptive child acquires exactly the same rights and obligations as a biological child, in accordance with the right to equality guaranteed by the Constitution. Also, adoption is recognized as an indissoluble bond as a biological filiation link, derogating the poor assertive revocation currently contemplated in the legislation in force.

It also seeks to guarantee that the consent to give a child in adoption is not motivated by an economical motivation. It is no secret that currently ?hitchers? are used to convince pregnant women with poor resources, very young, single, or with numerous descendants, among other motives, to give her child for adoption, with the argument that she ?will not be able to give him/her a good future, she will no be able to support him/her, that the child will be born condemned to undevelopment, while if she places him/her for adoption he/she will have a better future. Likewise, other cases exist where the consent has been obtain by means of an economic payment in exchange for the child or in exchange for the medical attention received during the pregnancy and delivery.

Considering the responsibility of the full enjoyment of children?s rights corresponds to the State, this will be the one in charge of guard that adopters? meet proper conditions to adopt a child, in compliance with The Hague Convention Relative to Protection and Cooperation of International Adoption Matters, instrument which also indicates that this function cannot be in the hands of biological parents, to avoid anomalies in the proceedings, and recommends that there are no contacts between biological parents and adoptive parents previous to the assurance that the future adoptive parents are suitable and proper to adopt.

It is established that this measurement will not be applied in case of an adoption by extended family members. It must not be forgotten that the institution of guardianship also exists, in which biological parents can intervene in the designation of the person who will be in charge of caring for their children in the case they were missing.

The Hague Convention Relative to Protection and Cooperation of International Adoption Matters declares that States must establish controls and measurements to guarantee several aspects: the order of priorities regarding the protection of children, takes charge of, mainly of providing proper support to the biological family of the child so this can assume its responsibilities with him/her; and if said measure fails, make sure that the child is adoptable and verify if the child can be placed or adopted by a family in his/her own country, or in the contrary, verify if an international adoption responds to the superior interest of the child. A preference of national adoption over international adoption is based on the child?s right to preserve his/her cultural identity.

The Initiative creates the Central Authority, as a central authority to the adoption process. In compliance with The Hague Convention Relative to Protection and Cooperation of International Adoption Matters, it becomes in the competent authority to authorize the adoption process.

The Authority is not part of the Judicial Body, it is an administrative entity; therefore it does not impart justice . Adoption proceedings are not a contentious matter, there is no litigation, in case of the appearance of any controversy, it is handed over to justice courts.

The Authority will be in charge of counseling the actors of the adoption process, so biological parents as well as adoptive parents can have full conscience of the implications that come with adopting or placing a child for adoption. This will allow that a consent to place a child for adoption is granted with no types of vices; and so the adopters understand the magnitude of commitment that is acquired and their duty of informing about the adoption success.

It will also be in charge of carrying out all investigation proceedings relative to adoption files, foster homes of children, adoption centers in other countries, qualities of persons aspiring to adopt and circumstances under which the consent was granted on behalf of the biological mother or parents to place a child for adoption.

The preoccupation of complying with the constitutional mandate of the State to guard the protection of the family, lead to the conformation of a multidisciplinary table in which a wide range of sectors from the civil society, religious entities of different denominations, human rights entities and renowned professionals in relative branches to this project of law participated. The Executive Body added itself to this effort by involving itself in the discussion and redaction of a proposal that complied with acquired commitments in international instruments regarding children and youth rights. I am honored to gather this popular clamor using my Law Initiative and becoming the spokesperson of this effort.

It is complied with the postulate of the Political Constitution of the Republic which states that the protection of children and teenagers who are in a situation of vulnerability, due to abandonment or orphanhood, as national interest, and with the exercise of participative democracy, due to that this proposal is the result of a long journey of discussion and the seek of a consesus.

CONGRESS OF THE REPUBLIC OF GUATEMALA

DECREE NUMBER

THE CONGRESS OF THE REPUBLIC OF GUATEMALA

WHEREAS

That the Political Constitution of the Republic of Guatemala establishes that the State recognizes and protects the adoption institution and declares of national interest the protection of abandoned and orphan children; and that the State of Guatemala ratified the Children?s Rights Convention, which entered into force since 1990, in which it committed itself to recognize and allow an adoption system in which the main purpose is the superior interest of the child.

WHEREAS

It is necessary to create a juridical ordering in accordance to principles contained in the doctrine of children?s integral protection for the existence of a process which guarantees the transparency of the adoption institution.

THEREFORE

In the exercise of the attributions conferred in article 171 clause a) of the Political Institution of the Republic of Guatemala and article 23 of Decree 27-2003 of the Congress of the Republic, Law of Integral Protection of Childhood and Adolescence.

DECREES AS FOLLOWS:

LAW OF ADOPTIONS

TITLE I
OF ADOPTION
CHAPTER I
OBJECT, APPLICATION ENVIRONMENT AND DEFINITIONS

ARTICLE 1. OBJECT AND APPLICATION ENVIRONMENT. The object of the herein laws is to regulate adoption as an institution of national interest and its judicial, notarial and administrative proceedings.

ARTICLE 2. DEFINITIONS. For the effects of the herein law, it will be in the understanding that:

a. Adoption: Is a social institution of protection and public order guarded by the State, in which a child or adolescent will be permanently restored his/her right to a family, integrated in accordance with the legislation of Guatemala, in which he/she will be welcomed and received as an own child; and will acquire the same rights and obligations of a biological child in filiation, succession and other matters.

b. Adoptability: Is the declaration which will establish that a child or adolescent needs an adoptive family in order to develop physical, psychological, emotional and socially.

c. Adopter: Is the person or persons who will take another?s child as their own in virtue of an adoption process.

d. Extended family: Is that which comprehends all the persons who have a consanguinity relation or affinity with the adopted who are not his/her parents or siblings; and other persons who maintain with him/her a relationship equally to a family relationship in accordance with practice, uses, national and community customs.

e. Biological family: Is that which comprehends the parents and siblings of the adopted one.

f. Substitute family: Is that which comprehends all the persons who will receive a child or adolescent in their home temporarily.

g. National adoption: Is that in which the adopters are Guatemalans, of origin or naturalized. As well, the one carried out by foreigners who, at the time of the adoption have been residing in Guatemala at least five years.

h. International adoption: Is that in which the adopters are not Guatemalans and have their usual residence abroad.

CHAPTER II
GENERAL DISPOSITIONS

ARTICLE 3. GUARDIANSHIP AND PROTECTION. It will correspond to the State of Guatemala, the obligation of protecting and guarding the children and adolescents in the adoption process to avoid their substraction, sale and traffic, as well as any other form of exploitation or abuse.

ARTICLE 4. SUPERIOR INTEREST OF THE CHILD AND FAMILY. The superior interest of the child is a guarantee which will be applied in every decision adopted in relation to childhood and adolescence, which shall assure the exercise and enjoyment of his/her rights, respecting his/her family bonds, ethnic, religious, cultural and linguistic origin, having always in consideration his/her opinion in function of his/her age and maturity.

Interest of the family is understood as every action towards into the favoring the unity and integrity of such and the respect of relations between parents and their children, complied within the legal ordering.

The State of Guatemala shall promote and adopt all necessary means for the effective compliance of the interest of children and adolescents and the family.

ARTICLE 5. EQUALITY OF RIGHTS IN INTERNATIONAL ADOPTIONS. Only international adoptions between States that guarantee children susceptible to be adopted as minimum the same rights granted by the Guatemalan legislation can be authorized.

ARTICLE 6. LACK OF MATERIAL RESOURCES. SITUATION OF POVERTY. The situation of poverty or extreme poverty of parents does not constitute sufficient motive to place a child for adoption.

The State must promote and facilitate the creation of policies, institutions, programs and services of support which improve life conditions and promote familiar unity.

ARTICLE 7. NATIONALITY. The adopted one will not loose his/her Guatemalan nationality nor its inherent rights when placed for an international adoption.

ARTICLE 8. RESERVATION. All actions within the adoption process will enjoy the guarantee of discretion and reservation, certified copies will only be issued to the adopted one, the adopters or biological parents.

ARTICLE 9. TYPES OF ADOPTION. Adoption will preferably be national, subsidiarily it will be international.

ARTICLE 10. PROHIBITIONS. Adoption is a social institution of protection, for which it is prohibited:

a. The obtainment of material or other type of undue profit for biological parents or legal guardians of the child or adolescent placed for adoption; and any other persons who promote adoptions or intervene in them having no bonds with the family of the adopter or adopted one.
b. That biological parents or legal representatives of the child, expressly dispose who will adopt their child, unless he/she is the child of the spouse or cohabitant, or the substitute family who has previously sheltered him/her.
c. That adoptive parents dispose of organs or tissue of the child or adolescent for illicit purposes.
d. That all persons participating in the adoption process have a relationship of any kind with private entities that dedicate themselves to the care of children or adolescents declared for adoptability.
e. That a consent for adoption is granted by an underage person with no judicial authorization.

In files where any previous prohibitions are not complied with, the adoption will not be authorized, with no prejudice to certify the conducing to criminal of the action itself is constitutive of an offense or felony.

ARTICLE 11. INHERENT RIGHTS. Guarantees and rights granted by the herein law, does not exclude others, even if they do not expressly appear in it, are inherent to children and adolescents or have been recognized in international doctrine or normatives regarding children?s rights. In no case, its application will diminish, disort or restrict rights and guarantees recognized in the Political Constitution of the Republic, Treaties or Agreements regarding Human Rights matters which have been accepted and ratified by Guatemala and in the herein law.

CHAPTER III
OF ADOPTION SUBJECTS

ARTICLE 12. SUBJECTS WHO CAN BE ADOPTED. The following can be adopted:

a. An orphan child or adolescent.

b. A child or adolescent who in a judgment signs that his/her right to family has been violated.

c. In cases where it has been declared that the patria potestas has been lost.

d. A child or adolescent whose biological parents have voluntarily expressed their desire to place him/her for adoption.

e. A child of one of the spouses or cohabitant; if the spouse or cohabitant who is the biological parent has expressed his/her voluntary consent in accordance to law.

f. The person of age, if he/she expressly states his/her consent or if he/she is lent by the tutor in civil incapacity cases.

When two or more siblings are susceptible to be adopted, it will be tried not to separate them before or during the adoption process. It must be tried that they are adopted by the same family, unless for justified reasons of their superior interest determined by the Central Authority.

ARTICLE 13. SUBJECTS WHO CAN ADOPT. A man and a woman united in marriage or union declared in accordance with Guatemalan legislation can adopt, if they both are in agreement to consider an adopted child or adolescent as their own.

Exceptionally, a sole person can adopt in qualified cases such as when the adopter is a family member of the adopted party; one of the spouses to another?s child; or other supposed cases where the superior interest of the child is protected.

ARTICLE 14. SUITABILITY OF THE ADOPTER. The person who requests to adopt a child or adolescent must have a difference of age with thee adopted of no less than twenty years; have ethical, moral and sociocultural qualities; as well as aptitudes that allow the full development of the child or adolescent.

The selection of adoptive parents must be carried out considering the following criteria:
a. Superior interest of the child
b. Right to cultural identity
c. Medical and physical aspects
d. Socioeconomic aspects
e. Psychological aspects

The aforementioned must be accredited with a Certificate of Suitability issued by the Central Authority. For international adoptions, the equivalent accreditation issued by the Central Authority issued by the receiving country.

ARTICLE 15. EXCEPTIONS. It is not necessary to obtain a Certificate of Suitability:

a. When the adoption is of someone of age
b. When the adoption is of a child of one of the spouses or from the union or a family who was previously sheltered him/her.

ARTICLE 16. IMPEDIMENT TO ADOPT. There is an impediment to adopt to:

a. Who suffer from physical sickness, mental or personality disorders, which represent a risk in the health, life, integrity or full development of a child or adolescent.
b. Who depends physically or psychologically of medication or any other addictive substance, whenever they have not been prescribed by a doctor.
c. Who has been condemned for felonies that attempt against life, physical, sexual integrity and freedom of persons.
d. One of the spouses or united parties without the consent of the other.
e. The tutor or protutor, who has not rendered account of the guardianship or has given the assets of the child or incapacitated.
f. Parents who in firm sentence have lost, been separated or suspended of the patria potestas of their children, if they have not been reestablished in the exercise of the same by a competent judge.

TITLE II
OF INSTITUTIONS RELATED TO ADOPTION
CHAPTER I

CENTRAL AUTHORITY

ARTICLE 17. CENTRAL AUTHORITY. The Attorney General?s Office is the Central Authority in adoption matters and will be the institution in charge of guarding the loyal fulfillment of administrative proceedings in all adoption files.

ARTICLE 18. ATTRIBUTIONS AND FUNCTIONS. The attributions and functions of the Central Authority are:

1. To assure the protection of children and adolescents in the process of adoption.
2. To promote national adoptions, as well as the adoption of institutionalized children.
3. To receive adoption requests, as well as forming and maintaining the respective file under custody until the moment where it is sent to the judge or Notary.
4. To take proper measurements to prevent undue material profits in relation to adoption.
5. To request to institutions as deemed convenient of necessary information for the fulfillment of its attributions and functions.
6. To verify that the consent granted by the parents is granted in accordance with the herein law.
7. To inform about the legal basis of the adoption of the child or adolescent, with the previous favorable judgment by the multidisciplinary team.
8. To supervise the socialization period and issue a Certificate of Empathy.
9. To assign every child in the process of adoption to a proper family in accordance with the child?s superior interest.
10. To request a Certificate of Suitability or the Central Authority or its equivalent in the country of origin of the adopter.
11. To maintain the following records:
a. Of national adoptions
b. Of international adoptions
c. Of adoption files
d. Of Notary Publics who intervene in the files
e. Of children whose adoption has been justified
f. Of Adoption Agencies authorized to function and who are certified by the Central Authority in their country of origin
g. Of ideal families or persons who wish to adopt
h. Of scientific, photographic proof; digital, hand and feet prints of children whose adoption has been justified.

12. To have follow-ups on children placed for adoption. In international adoptions, an update report will be requested to the Central Authority or equivalent in the receiving country.
13. To maintain constant communication with Central Authorities or their equivalents.
14. To exchange general evaluation reports with different Central Authorities or international bodies to create proper supervision in the receiving country.
15. Any other function considered pertinent to the effective fulfillment of its attributions.

ARTICLE 19. OF THE MULTIDISCIPLINARY TEAM. The Multidisciplinary team is the unit from the Attorney General?s Office who will assess all actions in adoption proceedings so these can be carried out according to law, transparently, ethically and accepted international standards.

ARTICLE 20. INTEGRATION. The Multidisciplinary team will have a Coordinator who will carry out the technical administrative chieftainship, appointed by the Attorney General of the Nation and a team of professional specialists and technicians in different disciplines, focused on childhood and adolescence.

ARTICLE 21. REQUIREMENTS. To be a member of the Multidisciplinary team, it is requested to comply with the following requirements:

a. To be Guatemalan of origin.
b. To be of a renowned honorability.
c. To be a university professional, active member.
d. To be in the full enjoyment of his/her citizen rights.
e. To accredit experience in childhood and adolescence subjects.

It will have the administrative and technical equipment considered necessary.
ARTICLE 22. FUNCTIONS. The functions of the Multidisciplinary team are:

a. Counsel all involved persons in the adoption process.
b. To elaborate a report of the child or adolescent susceptible to be adopted which will have information regarding identity, social environment, personal and family evolution, personal and family medical history and all related to particular needs. If for any motive, any of these data cannot appear in the report, it will be indicated.
c. To carry out works of experts and investigations required by the Central Authority and suggest any other deemed necessary.
d. To issue an opinion regarding the suitability of the adopters and the empathy between the adopted and the adopter.
e. To issue a professional opinion that orients the Final Judgment from the Central Authority.
f. Other functions in accordance with its technical labor which are required by the Central Authority.

ARTICLE 23. PROHIBITIONS. The following cannot be members of the Multidisciplinary Team from the Central Authority:

a. Who has been condemned to an account trial.
b. Who has been condemned for any other felony committed against any child, adolescent or against the public administration.
c. Who has been sanctioned by the Professional Association where he/she is a member, if not reinstituted.
d. Who has a relationship, link o represent the interest of private entities that dedicate themselves to the care or any other relation with children or adolescents susceptible to adoption.

CHAPTER II
OF THE SECRETARIAT OF SOCIAL WELLBEING AND THE PRESIDENCY OF THE REPUBLIC

ARTICLE 24. SECRETARIAT OF SOCIAL WELLBEING OF THE PRESIDENCY. The Secretariat of Social Wellbeing of the Presidency is the one in charge of guarding the children and adolescents in the State of adoptability, who enter into protection and shelter homes or a program of substitute families form the State. With the previous judicial authorization by request of the Secretariat of Social Wellbeing of the Presidency, they will enter private entities dully registered and authorized in accordance with the herein law.

ARTICLE 25. OF THE ATTRIBUTIONS OF THE SECRETARIAT OF SOCIAL WELLBEING OF THE PRESIDENCY IN ADOPTION MATTERS. Besides the functions currently carried out by the Secretariat of Social Wellbeing of the Presidency, it shall:

a. Elaborate a file of very child or adolescent in the state of adoptability who is found in its institutions or request its equivalent in private institutions, where it is stated:
a.1 Personal data and circumstances, including photographs of the same.
a.2 Full identification by means of the birth certificate; and a document containing his/her palm and feet prints; the impression of fingerprints of the mother and father, whenever the case and other scientific means.
a.3 His/her medical history

b. To maintain an updated record of all children and adolescents violated to the right to a family and the institution where he/she is located.
c. To maintain a registry and surveillance of private entities that dedicate themselves to the care of children and adolescents in a state of adoptability.
d. To authorize and sanction private entities that dedicate themselves to the care of children and adolescents in a state of adoptability.

The regulation of the law will regulate all relative to this chapter.

CHAPTER III
OF PUBLIC OR PRIVATE ENTITIES THAT DEDICATE THEMSELVES TO THE CARE OF CHILDREN OR ADOLESCENTS

ARTICLE 26. OF THE AUTHORIZATION AND SUPERVISION OF PRIVATE ENTITIES. Private entities in charge of the care of children and adolescents will be authorized by the Secretariat of Social Wellbeing of the Presidency; and will be supervised by the Defenceship of Children?s and Adolescents? Rights from the Human Rights Ombudsman in accordance with this law and its regulation.

ARTICLE 27. OF THE REGISTRATION OF PRIVATE ENTITIES. Private entities in charge of the care of children and adolescents, besides of complying with legal requirements, must be registered at the Secretariat of Social Wellbeing of the Presidency indicating the address of the place where the children and adolescents are located. As well as a detailed report of the infrastructure of the centers, its installed capacity, type of population that is attended, specific program of attention and enclose a legalized photocopy of the following documents:

a. Testimony of the Public Deed of Constitution duly registered.
b. Appointment of its legal representative.
c. Payroll of employees and positions.
d. Favorable judgment of functioning issued by the Ministry of Public Health and Welfare and by the Ministry of Education.
e. Others required to the criteria of the Secretariat of Social Wellbeing of the Presidency.

ARTICLE 29. OF THE OBLIGATIONS OF PRIVATE ENTITIES. Private entities that dedicate themselves to the care of children and adolescents are obligated to guard and assure their integral development; must guarantee them as minimum:

a. Their due attention, nourishment, education and care.
b. Their physical, mental and social health.
c. The maintenance of proper hygiene conditions of the location required by the Secretariat of Social Wellbeing of the Presidency.
d. To give reports and data of children and adolescent under their care to the Secretariat of Social Wellbeing of the Presidency and the Central Authority.
e. Others that the Secretariat of Social Wellbeing of the Presidency deems pertinent.

ARTICLE 30. SANCTIONS. Foster homes, children?s home, nursery or any other private institution that dedicates itself to the care of children and adolescents that do not comply with established norms in the herein lay, its regulation and dispositions of the Secretariat of Social Wellbeing of the Presidency will be sanctioned in accordance with the regulations of this law, unless it is deemed necessary to file a denunciation before a competent judge.

If the institution is public the Secretariat of Social Wellbeing of the Presidency must take measurements so officers and public servers who work in them comply with the herein law and its regulation.

TITLE III
ADOPTION PROCESS

CHAPTER I
DECLARATION OF ADOPTABILITY

ARTICLE 31. PROCEEDINGS TO DECLARE ADOPTABILITY. When concluded the proceeding of protection of childhood and adolescence with a declaration of violation to the right to a family of any child or adolescent without having restituted such by means of shelter in a biological family, extended in his/her community or substitute home, the Judge of Childhood and Adolescence in that same definite resolution will declare the Adoptability of the child.

In cases where children are voluntarily placed by their biological parents, must carry it out before the Central Authority which must immediately present them before a Judge of Childhood and Adolescence, so the corresponding process may be set in motion.
CHAPTER II
GENERAL ADOPTION PROCEEDINGS

ARTICLE 32. GENERAL PROCEEDINGS. Once the definite resolution is notified in which the right to a family has been violated and the declaration of adoptability of the Judge of Childhood and Adolescence and the respective file or a child or adolescent voluntarily given to the Central Authority, the Multidisciplinary team shall:

a. Gather ideal scientific proof necessary to establish the filiation between them of Deoxyribonucleic Acid (DNA).
b. Take fingerprint impressions of the parents and palm and feet impressions of the child or adolescent to establish the biological bond.
c. Carry out evaluations that the Multidisciplinary team deems convenient.

One the investigation is finished, the multidisciplinary team must issue a judgment.

ARTICLE 33. ORIENTATION PROCESS. The adoption orientation process consists of individual and professional orientation and counseling carried out by the multidisciplinary team from the Central Authority with the purpose of informing about principles, rights and consequences of the adoption. This process of orientation must be set forth by the Central Authority at the respective registry.

The regulation of this law will establish the proceedings that must be applied.

ARTICLE 34. ORIENTATION PROCESS OF BIOLOGICAL PARENTS. The biological parents of a child or adolescent who voluntarily wish to place him/her for adoption, only after their child is born can appear before the Central Authority to express their will to place him/her for adoption and set in motion the process indicated by this law.

If after carrying out the orientation process, the parents continue with the intention of placing their child for adoption, they will personally appear before the Central Authority to comply with the investigations, required scientific proofs and pertinent evaluations.

ARTICLE 35. REQUEST. The adoption process can be filed by the adopters to a Family Court or before a Notary Public.

ARTICLE 36. REQUIREMENTS OF THE ADOPTION REQUEST OF NATIONAL ADOPTERS. The Judge or Notary Public who carries out the adoption proceedings, by national requesting parties, will forward a request to the Central Authority containing full name of the requesting parties, age, civil status, nationality, address, document of identification and a location to receive notifications. Also, the following documents will be enclosed to the request:

a. Birth certificate and entry of their Identity Card registration.
b. Lack of criminal records of every requesting party.
c. Marriage or union certificate of the requesting parties.
d. Proof of employment or economic income of the requesting parties.
e. Medical Certificate of physical and mental health of the requesting parties and anyone who cohabits with them.
f. Recent photographs of the requesting parties.

ARTICLE 37. REQUIREMENTS FOR THE TUTOR. If the requesting party had been the tutor of a child or adolescent, the Notary Public or Judge must have at sight the documents where it is spread upon the record that his/her accounts were approves and his/her assents were given.

ARTICLE 38. REQUIREMENTS OF AN ADOPTION REQUEST BY FOREIGN REQUESTING PARTIES. The Judge of Family or Notary Public who carries out the adoption proceedings of foreign petitioners must enclose to the request filed before the Central Authority, the following documents:

a. Special mandate in favor of the person who can represent them in Guatemala.
b. Legalized photocopy of documents which accredit their personal identifications.
c. Birth certificate issued by a competent authority.
d. Lack of criminal record for every petitioner issued by the corresponding authority in their country.
e. Marriage or union certificate of the petitioners issued by the corresponding authority in their country.
f. Proof of employment or economic income of the requesting parties.
g. Medical certificate of mental and physical health of the petitioners and anyone who cohabits with them.
h. Recent photographs of the requesting parties.
i. Testimonial declarations, under oath before the Central Authority of the receiving country or its equivalent or Notary Public of the country of origin of the petitioners, of two persons who know them for at least two years, and indicate all relative to their economical and moral capacity that allows them to fulfill all obligations imposed by an adoption.
j. Certificate of attendance and completion of the orientation process or its equivalent before a competent authority in their country.
k. Suitability certificate issued by the Central Authority or its equivalent in the country of origin of the requesting parties.
l. Others indicated in the regulations of the Central Authority of Guatemala.

ARTICLE 38. SELECTION OF A FAMILY. When adoptability is declared by a Judge of Childhood and Adolescence, the Central Authority, will carry out the selection of an ideal family for the child, in accordance with all forwarded requests by a Family Judge or Notary Public.

A family in order to be ideal must respond to the superior interest of the child and must be in the capacity to satisfy the following needs of the child:

a. Cultural identity
b. Physical characteristics
c. Psychological characteristics

Situation which must be set forth in the resolution that designated a family to a child.

ARTICLE 40. ORIENTATION OF THE ADOPTERS. Person wishing to adopt a child or adolescent must carry out an orientation process and, when an international adoption, they must present proof issued by the Central Authority or equivalent in their country, where it is set forth that they carried out an equivalent process in their country.

ARTICLE 41. SUITABILITY CERTIFICATE. The disposition and aptitude to adopt of the requesting parties will be set forth in a certificate issued by the Central Authority, in accordance to what has been established in article fourteen of the herein law.

ARTICLE 42. SOCIALIZATION PERIOD. The Central Authority will authorize a period of co-habitation and socialization between the requesting parties and the child or adolescent, no minor to five working days, in national adoptions as well as in international adoptions.

This period will be supervised by a specialist designated by the Central Authority, who can be supported by the multidisciplinary team if deemed necessary.

The Central Authority must inform the judge or notary public who carries out the authorization file of the period of socialization and co-habitation.

ARTICLE 43. OPINION OF THE CHILD OR ADOLESCENT. Two days after having concluded the period of socialization, the Central Authority will call the child or adolescent to ratify his/her wish to be adopted according to his/her age and maturity.

ARTICLE 44. EMPATHY REPORT. When concluding the socialization process and taking into account the opinion of the child or adolescent, the multidisciplinary team will immediately issue an empathy report which will indicate the quality of the established relationship between the child or adolescent and the requesting parties.

ARTICLE 45. MIGRATION GUARANTEE. In case of international adoptions, the commitment of the Central Authority or its equivalent in the receiving country will be required of providing all information that can allow to have a follow-up on the child placed for adoption. Likewise, the proof that the adopted can enter and permanently reside in the receiving country will be required at the moment of the formalization of the adoption.

ARTICLE 46. JUDGMENT. When the aforementioned administrative process is concluded, the Central Authority will issue a judgment in the following five working days, based on the legal basis of the adoption considering the prohibitions this law establishes in article ten.

The Central Authority will issue certificates of the reports, so the interested parties can attach them to the request before the judge or notary public who is carrying out the case

ARTICLE 47. REFUTATIONS. To refute a judgment issued by the Central Authority, the resources contained in the Law of the Contentious Administrative, Decree 119-96.

CHAPTER III
JUDICIAL AND NOTARIAL REQUIREMENT

ARTICLE 48. JUDICIAL OR NOTARIAL RESOLUTION. After complying with all the requirements aforementioned and based on the judgment of the Central Authority, which will forward the file to the corresponding judge or notary public; in the first case the judge will issue in a term no longer than five working days, the corresponding resolution, in which the adoptions proceedings are approved or denied.

In case that the request was filed by a notary public, such will authorize the corresponding Public Deed in which it is set forth the consent of the parents of the child or adolescent or the institution who is in charge of him/her, the acceptance of the adopter and the transcription of the judgment which approves the adoption.

ARTICLE 49. REGISTRATION OF THE ADOPTION. The testimony of the public deed or judicial resolution of adoption must be filed to the Civil Registry so the inscription is spread upon the record in the corresponding books. The testimony of the public deed must be attached to the certificate of the issued judgment by the Central Authority.

ARTICLE 50. RESTITUTION OF THE RIGHT OF FAMILY. Authorized the adoption by the judge or notary public, the Central Authority will verify that the right to a family of the adopted is restituted, by means of an act in which the adopted and adopters personally appear.

CHAPTER IV
TRANSITORY DISPOSITIONS

ARTICLE 51. ADOPTIONS IN PROCESS. All processes which are being carried out at the moment the herein law enters into force, will continue with their proceedings in accordance to the law in force at the time of them being set in motion to their conclusion.

ARTICLE 52. REGULARIZATION. Within thirty days of this law being in force, the Secretariat of Social Wellbeing will confirm the situation of the children or adolescents that are under the care and guard of substitute families and private institutions that dedicate themselves to the care of children and adolescents.

ARTICLE 53. TERM FOR INSCRIPTION. All private entities, who are in charge of the guard and care of children and adolescents must be inscribed at the Secretariat of Social Wellbeing of the Presidency, within the next thirty days of this law entering into force.

ARTICLE 54. BUDGETARY ASSIGNATION. The Executive Body must incorporate in the Income and Outcome Budget of the State the necessary budgetary entries in order to finance the implementation and functioning of the Central Authority and the multidisciplinary team contemplated in the herein law and in accordance to the proposal from the Attorney General of the Nation.

ARTICLE 55. REGULATION OF THE LAW. Within the following ninety days after this law being in force, the Executive, through the Attorney General of the Nation shall issue the respective regulation.

CHAPTER V
REFORMS AND DEROGATIONS

ARTICLE 56. REFORMS. Articles 228, 258, 274, 435 and 1,076 of the Civil Code are reformed, Decree number 106, which stay as follow:

Article 228. All aspects relative to adoption will be regulated by the law specialized in the matter.
Article 258. The patria potestas over the adopted child is exercised jointly by the persons who adopted him/her.

Article 274. The last paragraph of article 274 is reformed, which stays as follows: ?The patria potestas is lost when the violation to a family is declared by a firm judgment issued by a Judge of Childhood and Adolescence or when he/she is adopted by another person.?

Article 435. The adoption will be inscribed in a special book, having at sight the testimony of the public deed or the certificate of judicial resolution which approves it, in accordance with what has been established by the law specialized in the matter.

Article 1,076. The children, from or not from the marriage, biological or adoptive, will inherit their parents assets equally. The adoptive child has the same rights of the biological children regarding successory rights among relatives of the adopters; but does not preserve the successory rights of his/her previous biological family.?

ARTICLE 57. Article 28 of the Regulation Law of Notarial Proceedings in Voluntary Jurisdiction Affairs is reformed, Decree No. 54-77, which stays as follows:

Article 28. Formalization. The adoption can be formalized before a notary public, in accordance to was has been established by the law specializing in the matter.

ARTICLE 58. DEROGATIONS. Articles 29, 30, 31, 32, and 33 of the Regulation Law of Notarial Proceedings in Voluntary Jurisdiction Affairs, Decree No. 54-77 of the Congress of the Republic are derogated.

ARTICLE 59. Articles 229, 230, 231, 232, 233, 234, 235, 236, 237, 238, 239, 240, 241, 242, 243, 244, 245, 246, 247, 248, 249, 250 and 251 from the Civil Code, Decree Law number 106 are derogated.

CHAPTER IV
FINAL DISPOSITIONS

ARTICLE 60. FORCE. The herein decree will enter into force eight days after been published in the Official Newspaper.

Given at the Legislative Palace?

PONENT CONGRESSMAN

JORGE LUIS ORTEGA TORRES

Posted by Kevin at September 7, 2005 10:29 PM