The CONVENTION ON PROTECTION OF CHILDREN AND CO-OPERATION IN RESPECT OF INTERCOUNTRY ADOPTION

{Posted on behalf of Susana Luarca, ADA}

It is one of the thirty seven international treaties created by the Hague Conference for Private International Law, an international organization based in the Netherlands. Guatemala is not a member of such organization and did not attend the session where the convention about international adoptions was signed, in May, 1993. For many years, us, the Guatemalan adoption professionals, watched with growing concern, how all the countries of origin of children, after becoming members to the Hague Convention on international adoptions, decreased the number of their adoptions until they were reduced to a few each year and how the countries of destiny, limited the number of countries their citizens could adopt from, In the case of the countries of origin, it was neither because the situation of the children was improved, nor because domestic adoptions were replacing international adoptions. It was because the inefficiency of the governments could not replace the activity of the private professionals who used to handle the processes of adoptions in those countries. In Guatemala we thought that we had no reason to worry, because our country was not a member of such convention. While the number of adoptions in our neighboring countries became very small, the success of Guatemalan adoptions did not go unnoticed. UNICEF brought the subject of Guatemalan adoptions to the discussion of the practical aspects of the convention in November 2000, and demanded that the countries members of the Hague Convention, “closed their doors to the Guatemalan children”, despite the fact that the convention itself states that it only applies when both countries are members of the convention. The Guatemalan ambassador in Brussels was approached by the Hague secretary and a letter was sent urging Guatemala to join the Hague Convention. During the following couple of years, the pressure of UNICEF intensified, to make Congress change the adoption laws of Guatemala and to become a member to the Hague Convention on adoptions.

Even though the Hague Convention does not state that private adoptions are inadmissible, as soon as a country of origin becomes member of such treaty, adoptions are handled by the government because the convention demands the establishment of a Central Authority, which is quickly translated into “only State adoptions are allowed”.

On August 13, 2002, the Guatemalan Congress approved the Hague Convention under the mistaken belief that it was signed by Guatemala. Alfonso Portillo, Guatemala’s former president, sent the documents of accession to the Hague Convention for international adoption, in November 2002. At the beginning of December 2002, another constitutional challenge was filed, on the grounds that the Constitution of Guatemala only authorizes the President to “celebrate, ratify and denounce international treaties”. Since the treaty was not celebrated by Guatemala, it could not be ratified by the president and being the accession the only way to become a member to the Hague Convention, the Constitutional Court ruled the approval of the treaty by the Congress unconstitutional, because neither the president has the power to accede to an international treaty, neither the Congress can grant such power to the president. In compliance with the Constitutional Court’s ruling, the president should have denounced the treaty right away. Alfonso Portillo left his position without doing so and Oscar Berger became president in January 14, 2004.

Unfortunately for the children in need of a family, UNICEF convinced President Oscar Berger and his wife Wendy, that adoptions in Guatemala are “easier than grocery shopping” as Wendy said to me when we met to discuss the adoption law – crafted by UNICEF - that she is sponsoring. The proposal is in Congress, and we hope that it will not be approved ever, because it is full of constitutional violations, that will reflect badly on Congress if it is ever approved, not to mention that it makes adoptions impossible. At the same time, President Berger refuses to comply with his obligation to denounce the Hague Convention and has even promised to Hans van Loon, the Secretary of the Hague Conference for International Private Law, that Guatemala will become Hague compliant.

An international treaty whose results are the opposite of what it was created for, is deemed a failure, and the countries who accepted it, waste no time in denouncing it, to be free of its negative effects. That is what should happen with the Hague Convention for international adoptions. It claims that it will protect the children, when it actually deprives children who could be adopted, of the family that they need. The so called “success” of the Hague Convention is measured by the number of countries that became members to it, completely forgetting that the main purpose of the convention should be to make adoptions easier, faster and available for every child who needs a family and that the Hague Convention makes them impossible.

In Guatemala, we suffered the painful effects of the Hague Convention, when the Procuraduría General de la Nación, which is the equivalent of the US Attorney General, was appointed as Central Authority for the purposes of the convention. At the beginning, the PGN attempted a hostile takeover of all adoptions started after March 5th, 2003. The director of the Central Authority told me that they planned to finalize the cases, while the lawyers kept taking care of the children and paying their foster care, because the PGN was going to collect the rest of the fees owed by the parents. Unable to apply the convention to the cases, the PGN paralyzed the hundreds of cases that were waiting its approval. The PGN kept the files hostages and neither UNICEF nor the so called “human rights organizations” contributed anything to help the children who were abandoned by their parents at the hospitals and public places, because adoptions were no longer possible. A wave of Rotavirus killed many children, and many others were given away by their parents for illegal purposes unrelated to adoption. The lack of concern of the government for the terrible situation of the needy children during that time was shameful. As it is shameful that there are no funds in the annual budget to support the orphans and the abandoned children, that according to the Constitution “its protection is of national concern”.

While adoptions were still paralyzed by the PGN, the Court of Amparo ruled in favor of the lawyers, suspending the effect of the Hague Convention. The Attorney General refused to obey the ruling and kept stalling the adoptions. At that time, the Constitutional Court gave its ruling exactly one year after its approval, and we all celebrated that the legal order was restored.

The United States signed the Hague Convention, but still has to ratify it. There is no way to know when that will happen. The Americans I have asked, say that it is a done deal and that nothing can be done to prevent the American President to ratify the convention. The State Department has told the adoption professionals, that once the United States ratifies the convention, adoptions of Guatemalan children will no longer be possible. The solutions to this situation could be:

a) The United States does not ratify the Hague Convention. Judging by the results of the convention in other countries, it does not make sense to ratify a convention that delivers exactly the opposite of what it was meant for.
b) The President of Guatemala denounces the treaty and twelve months later, Guatemala would no longer member of the Hague Convention. To accomplish that would be an uphill battle, because President Berger wants to embrace the convention, regardless of its consequences. For the second meeting of the Special commission on the Practical operation of the Hague Convention for Intercountry adoption, that took place in September 2005, the Guatemalan Government sent a high level delegation, formed by the vice minister of Foreign Affairs, the then Attorney General and now magistrate of the Constitutional Court, and the chairmen of three congressional committees, promising that every effort would be made to resubmit the 1993 Convention to Congress, regardless of the Constitutional Court ruling.

c) The United States ratifies the Hague Convention, but objects to the accession of Guatemala, not regarding it as member of the convention and therefore, continues doing adoptions with Guatemala. This would allow to continue doing adoptions, but will not stop the pressure of UNICEF to make the United States stop admitting children adopted from Guatemala. The UNICEF delegate in Guatemala says that only 500 adoptions should be allowed every year and 90% of them should be adopted by Guatemalan couples, and only ten percent by foreigners.

d) Guatemala becomes Hague convention compliant, which would be a solution just for a handful of children each year, as it happens in every Hague compliant country.

e) Finally and the only real solution would be that the whole world admits that adoption, like marriage, is a way to create a bond between people unrelated by blood and desist to make adoptions as difficult as possible. There are millions of orphans in the world. Even though not everybody is entitled to raise a child, every child is entitled to be raised by a loving family and the least everybody should do is to make every effort to make it possible, beginning with admitting that the Hague Convention is the main obstacle to that, and agreeing to put an end to a convention that never should have taken effect.

An example of how unnecessary it is to have an international treaty that regulates the relations of private citizens, is the Hague Convention on Celebration and Recognition of the Validity of Marriages, concluded on March 14, 1978 and entered into force on May 1st, 1991. Despite its obvious importance and the need of a legal instrument that helps to close the gap of different legal systems regarding marriage, only three countries have ratified it: Australia, Egypt and the Netherlands, and the three of them have expressed some kind of reservation. We would like that the Hague convention for adoptions would accept reservations or would state as it does the marriages convention: “This Convention shall not prevent the application in a Contracting State of rules of law more favorable to the recognition of foreign marriages.”
The ironclad clauses of the Hague Convention and the detrimental effects it has on adoptions should make all of us to raise our voices and demand from our governments to stop trying to take away something that belongs to the people, not to the governments. In the same unquestionable way that people get married, the state should limit its role to oversee the legality of the process and let the people exercise the right to relinquish a child or to love and raise someone else’s child as our own, simply because we have the will to do it. To give up those rights is costing millions of lives of children who die all over the world. Our silence has lasted long enough. We have to lend our voice to the children who cannot express themselves and work to give to as many children as possible, their most basic right; the right to a family.

Susana Luarca, ADA

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