October 08, 2006

THE EXECUTIVE ORDER ISSUE (An additional perspective)

{Posted on behalf of Hannah Wallace, President, Focus on Adoption}
It's been difficult to weigh in on this issue, as I believe there is a great deal that will remain speculation in regard to whether this alleged "letter" or signed document exists, what was being discussed at the ADA meeting, who was being asked for funds, whether President Berger intended or did not intend to issue an Executive Order reinstating the Hague Treaty in Guatemala and implementing the First Lady's Protocol of Good Practices prior to Hague Compliant legislation being passed. Denials are being stated on both sides. I am not - in any way - trying to engage in character assassination, nor abscribe motivations for any of the events of the past week, nor do I want to demonize anyone. The ETHICA posting, however, was ONE posting, among several, from the JCICS listserve for the Guatemala Caucus.

I was in Guatemala from August 22 to September 6, working on Hague related issues.
During this trip several Guatemalan and U.S. officials confirmed that the First Lady's Protocol was going to be announced on October 1 (the day of the child) and would begin to be implemented by January 1. There was great concern among the lawyers about the information they had that Pres. Berger intended to announce it as an Executive Order. A month later, the lawyers believed they had confirmation of this, along with alleged intentions to reinstate the Hague Treaty by Executive Order. My understanding is that the ADA met to decide how to deal with this. One part of the meeting was a discussion of fund raising.for legal challenges.and PR. This information, if true, would possibly have an immediate impact on all adoptions. The idea was not to panic adoptive families or agencies, but to responsibly report what was happening. All of us are extremely relieved that the Guatemalan government and the U.S. government have stated that only a law, passed by Congress, will be implemented. I believe that will be looking into this further.

During that time I met frequently with Susana Luarca and other ADA leaders to discuss
(1) the necessity for Hague compliant legislation
(2) various models which could be applied to implement the Hague Treaty, including the U.S. model - which delegates responsibility to various government departments and accredited private adoption service providers
(3) and various ways to provide more oversight and transparency in regard to fees and the intermediaries. I need to state, for the record, that it's a misperception to characterize the attorney leaders in Guatemala (the ADA or the Instituto) as wanting to maintain the status quo, at all costs. The facts contradict this:

*In fact, 13 years ago, when Guatemala only had about 700 adoptions a year and adoption fees were about half of what they are now, and a lot easier and faster, critics like Unicef and Bruce Harris were putting barcodes on babies on their website and attacking adoption attorneys and agencies. Susana Luarca was the only one of the many Bruce Harris attacked who fought back. I was at the trial, where Bruce Harris offered no defense to the clearly libelous information he presented over several years in Press Releases, television interviews, and Press conferences with Guatemalan government officials. He never had to defend his statements, as the powers that be had already decided to decide it on a "free speech" basis. (I believe it is also a fact that only after the Hague Treaty was finalized, did we begin to see the reform driven rhetoric and government after government in Latin America developing legislation which has noticeably put all adoption services, except legal services, in the hands of their governments). We have not seen evidence of improved reunification services, or family support services, or government sponsored domestic adoption campaigns. We have seen evidence of more children living in legal limbos in orphanages in Honduras, El Salvador and Peru... to name only a few. Check the figures on how many children get through the system each year. Where do you think all of those children are and what is the quality of their lives?

** In fact, in response to the accusations about kidnapping and other abuses, the Attorneys in Guatemala were the ones who initiated the request for DNA testing and welcomed INS supervision and oversight of that process.

** In fact, in the past several years FOA, the Instituto, and the ADA have advocated for second DNA to rule out the possibility of "child switching".

** In fact, the Attorneys have had reform legislation proposals in Congress for years. The most recent was the attempt to pass Amendments to the Civil Code, which they attempted 2 years ago -- which would have provided substantial compliance with Hague STANDARDS. These amendments were proposed AFTER the Constitutional Court overturned the Accession to the Hague Treaty. ** It is also a FACT that every time moderate and workable legislation is proposed, counter legislation is proposed which many on this listserve and observers of the ICA world would describe as the UNICEF model. I would say, rather, that the attorneys have chosen the status quo as second choice over what is perceived as legislation which would not address the needs of the many children in Guatemala who need families.

** In fact: The Guatemalan Attorney organizations have tried for years to have a "child friendly" abandonment law put in place.


In these years, we've seen adoption as an option for children grow in Guatemala, while it has conversely been reduced to either none or a small percentage in surrounding countries. It's so difficult to prove a negative.... since
no one is actually tracking the fate of children who might have been adopted. But for many years now, adoptions in Guatemala have been characterized as A PROBLEM, not a solution.. the largest export, children as commodities, abuses in the system etc. Whereas some of us might see the numbers of children who are being relinquished as a symptom of greater social ills which have not been addressed to any significant degree by the Guatemalan government or the International organizations. There is a great deal of humanitarian aid pouring
into Guatemala and it hasn't made much of a dent.

None of us have exact statistics. However, I believe that the birthrate in Guatemala is about 500,000 per year. If 5,000 children are being adopted, then one could say that roughly 1 in 100 children born each year are being
adopted. Of the 500,000 children born, there is also a quite high infant mortality rate. Most of these children are born into the 80% of the population who are living in poverty. Approximately 30,000 children a year die from
curable illnesses like diarhea and bronchitis. More than 50% are malnourished. They are part of the 99% who are not being adopted. Over 25,000 of them are living in PRIVATE institutions, being supported by adoption fees, churches, humanitarian aid organizations. While the courts send the children to the institutions, the Guatemalan government does not support these institutions at all.

Under this administration, there has been some evidence that the First Lady does care about the children to a greater extent than former First Ladies. However, funds for many social services have been cut. The conditions of
poverty in Guatemala have not been alleviated, but seem to have increased. Recently, one of the few government orphanages was closed and the children sent to other "private" institutions. There is absolutely NO reason - based on evidence - to believe that the kind of legislation or system that is being proposed would "work" in the best interests of the children. This is what the ADA and their supporters are resisting.

During one part of my trip, I was part of a delegation from JCICS. JCICS has taken the lead in trying to find solutions which will meet Hague standards in spirit as well as practice, as well as ensuring the children who need permanency will be able to join adoptive families.. Susana Luarca hosted a dinner in her home for many of the lawyer leaders, interested Congressmen, and the JCICS delegation. ALL of the leaders of the Guatemalan attorneys embraced the concept of meaningful legislation and regulation. There are no perfect or easily implemented solutions and there are still wide areas of difference on how to achieve this. And there is a great breach and much bitterness between many of the attorneys and the government offices, with possibly skewed
perceptions on both sides. Certainly this is not the first time that governments and interest groups have differed with one another, demonized each other, or disagreed on certain events for a perceived political advantage. However, I saw no evidence that the ADA was opposed to making changes and would, therefore, seek to disrupt the Hague legislation process.

Hannah Wallace, Focus On Adoption

Posted by Kelly at October 8, 2006 06:05 PM

So- laymans terms...are we OK once were in the PGN?????

Posted by: mandy at October 8, 2006 07:13 PM

According to announcements from the Department of State and the First Lady's office, there is no intention to attempt to implement unlegislated
procedures. This means, I believe, no changes until the Guatemalan congress passes legislation (which is Hague compliant), unless there is no such legislation when the U.S. ratifies the Hague Treaty...I believe there will be notification when the US will be ready to ratify. Most legislation will specify when it goes into force and what conditions govern its application.

Posted by: Hannah Wallace at October 8, 2006 10:40 PM

Hannah, thank you for taking the time and effort to help put some sense of order into this choas. Every day I pray that adoptions continue and I think ADA and agencies like yours want to make improvements yet still honor the law in Guatemala. I wish Mrs. Berger could see past the UNICEF stuff. You have my family's support.

Posted by: Mary Mulcahy at October 9, 2006 12:12 AM

thank you Hannah for sharing so much information

it is important that the complexity of this situation is shared - your efforts are very much valued by many people

Posted by: mary-kate at October 9, 2006 07:42 AM

Thank you, Hannah for taking time to post this informative article. It is with great heaviness of heart, that I write - wondering what will be the fate of those 5,000 children per year that "could have been " adopted if Guatemalan adoptions cease.

As you mentioned , Peru, El Salvador, Honduras, Bolivia... all of these countries still have a need for children to be adopted and yet very , very few are being adopted.

I hate to consider Guatemala will follow the fate of these other Latin American countries in terms of international adoption......

My question to you is - is there a possiblity that Guatemala could become Hague complaint - or implement enough change so that adoptions are not stopped all together in 2007 ? Is the U.S. "willing" to work with Guatemala to keep the doors of international adoption open - or is the State Department really not interested in keeping IA a viable option? Are there thing that Guatemala could do "now" to keep the doors open?

I keep praying and I know it's a long shot....

Thanks again,
mom to 5 Guatemalan blessings

Posted by: gloria pickering at October 13, 2006 10:30 PM

Gloria, I know that there are many ways to implement the Hague Treaty. The ADA and Instituto are working on legislation which is Hague compliant, as well as trying to address the problematic areas more effectively. At this time, the DOS seems to be receiving many different types of proposals. The Guatemalan Congress will be the ones to pass any proposed legislation. I imagine that if it is in substantial compliance with the Hague Treaty, DOS will continue to grant visas to Guatemalan children adopted by U.S. families. However it is always useful to make our congressional representatives aware of the complexity of issues surrounding ICA in Guatemala.


Posted by: Hannah at October 17, 2006 01:55 AM

Has anyone heard about a new order requiring a family court decree if you have a baby in your posession??

Posted by: Stephanie at October 17, 2006 09:03 PM
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