This weeks chapters may be abit of bore for many. They depart from our story and talk about the adoption process and that wonderful period known as the Hague Fiasco. Luckily they are not too long and I'll get the next good chapter up shortly.
Good reading...
Jumping Through Hoops
There are many great resources where one can find detailed information on the specifics of the adoption process in Guatemala. The website www.guatadopt.com is a perfect place to start. In order to have the joyful part of this story, our adopting Isabel, flow more easily, at this point it is probably a good idea to give some basic description of what goes on when one is adopting a child from Guatemala. This will prevent having to invade the story too much for process details and explanations.
Basically there are two concurrent processes taking place, one for each country. The United States process is to validate that the child meets the official criteria to obtain orphan status and thus be permitted to immigrate. It is worth while to recall that the adoptive parents have already been approved to adopt a child. The orphan status is by and large pretty straightforward and logical with a few notable exceptions.
Currently, a child does not meet the orphan status if the child has two parents or the birthmother is married. In theory this makes sense when we consider the conventional dictionary definition of “orphan”. But what this ultimately means in practical terms is that if a couple has a child and decides that the best interest for that child is to be relinquished for adoption, they best divorce before the child is born and not list a father on the birth certificate. Otherwise, the child can not be adopted by Americans. No such requirement currently exists for children adopted domestically in the United States. As this is written there are bills before congress that would change the orphan status requirements and allow married couples to relinquish their children for intercountry adoption to the United States.
In the process of validating that the child meets the orphan status, a few steps take place. Your Guatemalan attorney first presents numerous documents to the Embassy in Guatemala City. At this point the Embassy issues an approval to conduct a DNA test.
Once the DNA results come back and the maternity is proved, the Embassy goes through all of the documents in detail. If they have questions or concerns, they can take further actions to investigate the case. One common thing is that they require that the birthmother be interviewed by Embassy staff. It is rumored these interviews had at times been downright degrading to the birthmother.
Ultimately the Embassy does one of two things. Generally everything is fine and a Visa Pre-Approval is issued for the child. Occasionally, the Embassy will issue what is called a NOID – notice of intent to deny and, subject to appeal, that child can not be adopted by a US citizen. With a Visa Pre-Approval issued, the child is promised a visa once the adoption is complete.
The act of making the child legally your son or daughter is conducted by the Guatemalan authorities. Much of this work is done through what is called the “notarial” legal system common through Latin-America. In these systems, the notaries are sort of a mix between a lawyer and a judge. The idea is to allow non-litigious legal matters to be handled outside of the government bureaucracy. The adoption process is that once the birthmother formally relinquishes the child, the adoption of the child by the adoptive parents must be approved by two government offices.
The first stage on the Guatemalan side is to go through Family Court. The role of Family Court is to ensure that the birthmother is voluntarily relinquishing the child, make her aware of her rights, and deem that the adoption is in the best interest of the child. Most of this work is done by a licensed social worker from the Family Court. During this stage, the social worker interviews the birthmother and the foster mother. Then the social worker writes a report, generally recommending the adoption. Lastly a judge must approve the case based on the social worker’s report. The predominant issue with Family Court is generally that some of the social workers are not conceptually supportive of intercountry adoption. Often trying to get the interviews set up and the report written can take quite some time. In their defense, these social workers are likely extremely busy as they also work on more traditional non-adoption cases like domestic violence and neglect. In addition, for some time one of the six Family Courts, court three, was notoriously anti-adoption and cases could linger there endlessly. To which court any given case is assigned is a matter of chance, although lawyers are permitted to once pull a case and have it again randomly assigned.
After clearing Family Court the case moves on to the office of the PGN, Procurador Generál del Nación. PGN is in many ways similar to our Justice Department. Really their job is simple. They just go through a variety of documents and make sure everything looks kosher. The case file is randomly assigned to a PGN lawyer who approves the case. Then it must be signed by the head of the PGN. But as is always the case with intercountry adoption, nothing is so simple. Often it can take many months to get this done. If the PGN lawyer opts to be difficult, they can issue a “previo” stating some document that is incorrect, missing, or otherwise not acceptable. Sometimes this can be something as irrelevant as a minor spelling error. Other times, they decide to create some new document requirement with no warning or legal authority. Earlier I mentioned the document we created with every fathomable version of our names and salutations. The purpose of this document is to reduce the odds of being previod because of your name appearing somewhere in some document in a way that you have not legally defined as being yourself.
The kick in the rear about being issued a previo is not only the delay, but also that sometimes the PGN attorney does not go through all the file, list all of the corrections needed, and then previo the case. Sometimes they find one correction and kick the case out. As a result, people can be kicked out of PGN multiple times. Because of the time it can take to obtain new documents and have them blessed kosher by all the necessary pundits, each round of previo can delay a case by weeks or months.
Once the case has been approved by PGN, the notaries must obtain the birthmother’s final approval of the adoption and then the official decree can be issued, making some soul in the United States a hell of a lot happier. From there, a new birth certificate is issued with the adoptive parents names. This must be obtained from the Civil Registry in the part of the country where the child was born which can at times be challenging in a country where sometimes they run out of the tax stamps needed to certify the document. With a new birth certificate in hand, the child can be taken to get a Guatemalan passport.
The United States and Guatemala processes by and large take place independent of one another. One major caveat is an agreement between the PGN and the Embassy that PGN will not release a case until the Embassy has issued the Visa Pre-Approval. The reason for this is to avoid the possibility that the adoption is legal but the child still can not enter the United States.
Once the child has a Guatemalan passport, all of the Guatemalan documents are furnished to the Embassy and within a few days a “Pink Slip” is issued. This Pink Slip says that you are pretty much done. All you need to do is have the child examined by an Embassy approved doctor and then head on down to the Embassy for a quick interview and then the next day you will have a Visa for the child and at last the child can come home!
Halleluiah!
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 notarial system is deep rooted in its function and purpose. What was happening here went beyond just the adoption laws, it was setting legal 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 into 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 community of adoptive 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 have started 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 incremental 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.