Hague Update/Perespective

The following was supplied by hannah wallace, President of Focus on Adoption.

The concern engendered by the Department of State's announcement about Hague Treaty implementation re: Guatemala is understandable, but the conclusion that all adoptions will be stopped from Guatemala (unless they develop Hague compliant legislation) is quite premature.

In summary for newcomers to the listserve and the issues: Guatemala acceded to the Hague Treaty without any implementing legislation. The PGN, who was named by the President (Portillo) as a Central Authority developed a series of procedures which were challenged in court because (a) they went against existing law (b) the PGN has no legislative authority. These procedures were ALL overturned by the courts in Guatemala. Meanwhile, the actual Accession to the Hague Treaty was challenged and the Constitutional Court declared that the accession was illegal because of prior international treaties Guatemala was party to, which did not allow Guatemala to accede to treaties they had not been party to developing. Guatemala did not participate in development of the Hague Treaty. Therefore, in Guatemala, the highest court has ruled that Guatemala cannot be a party to the Hague Treaty.

However, the Guatemalan government has not formally withdrawn from the Hague. The DOS spokesman was incorrect in stating that Guatemala could not withdraw, as there are provisions in the Hague Treaty for withdrawal. The current President of Guatemala needs to formally withdraw from the Treaty, but Pres.Berger does not want to withdraw, and in fact, is favor of legislation being promoted by the First Lady, which would put the adoption process in the hands of the government entirely - more than fulfilling the Central Authority mandate required by the Hague Treaty. As I understand it, there are ways of legally forcing the issue and having President Berger comply with the Constitutional Court and formally withdraw from the Treaty. ** However, there is some reluctance to force the issue because of concerns that the US government could state that they will only work with other Hague countries. (which is NOT part of the Treaty) Or the U.S. government deciding that unless Guatemala changes their adoption legislation, they won't allow US citizens to adopt from Guatemala. In my opinion, both of those concerns can be addressed through legal and political advocacy -- and FOA is developing strategies for this advocacy which will be posted on our website and on Guatadopt shortly.

Even if Guatemala does not formally withdraw from the Hague, there are legal issues which can be addressed regarding the U.S. regarding Guatemala as a Hague Country despite internal laws which prohibit this. Finally, there are moderate changes to Guatemalan adoption legislation which have been proposed, but always get shelved in favor of the more radical proposals which create serious constitutional issues as well as serious social issues. The current proposal favored by the First Lady, and promoted by UNICEF, is similar to adoption laws in other countries which have absolutely curtailed adoption, if not formally stopping it, at great cost to the children who need families. Deprivatization of intercountry adoption, unless a government has resources to implement this successfully and to support the children places children without parental care at great risk. As the Guatemalan government is not currently caring for more than 25,000 children who are already in private, licensed orphanages, and these laws never provide for adequate funding, the risks are enormous.

I believe that many officials at the Department of State are looking at these issues abstractly and legalistically and that it is up to the adoption community to provide information about the complex social and political environment and the potential impact of supporting legislation which undermines the quality of life of the children they intend to protect.

Hannah Wallace, President, Focus On Adoption