Editorial from FOA

Posted on behalf of Focus on Adoption:

On November 6, leaders of the Guatemalan Congress met in a symposium to discuss the pending adoption law. What has been reported in the newspapers, by JCICS, and other congressional observers is that they decided that new legislation is in order, which would provide:
*a strong grandfather clause
*designate April 30, 2008 as an effective implementation date of the Convention
*allocate $3 million quetzales for the creation of the Central Authority
*create a new government entity to act as the Central Authority
* provides for private, non profit accredited entities to provide services for children
*allows single adoptive parents to apply to adopt
* provides a functional process by which children can find permanent, safe and loving families

This reconsideration by Congress reflects a realistic and responsible assessment of the great needs of Guatemalan children to be provided with protections before birth, during birth, and after birth - especially if their birth families are unable to provide for them and are considering an adoption plan once the child is born, while also taking into consideration the standards and tenets of the Hague Treaty. They also took into consideration the serious constitutional issues raised by the Ortega Bill (#3217) which passed the third reading, as well as the very serious social and child welfare consequences of the Ortega Bill, which provided no funding, no way for relinquishing parent(s) to enter the "system", has children in state run orphanages for unspecified periods of time, and essentially would contribute to illegal and unsafe abortions, infanticide, anonymous abandonment, and put children at great risk. This is why the Ortega Bill had not gotten past the 2nd reading for 3 years, nor had its predecessor, the Valladeres Law, both of which were championed by Unicef and the Permanent Bureau of the Hague. By no stretch of the imagination can the Ortega Bill be considered to be " in the best interests of the child", except that it will stop current adoption abuses because it will stop adoptions. For several months, Congress has had an alternative bill, #3635 which is also Hague compliant, but provides for delivery of the necessary social services in a functional adoption system, with oversight and regulation. This bill has been virtually ignored by the governments of the US and Guatemala, as well as Unicef.

However, it is being reported that U.S. Consul General John Lowell and U.S. Ambassador Denham were highly instrumental in pushing the third reading of the Ortega Law and are now contacting members of the Guatemalan congress individually to ask them to vote for a January 1 implementation date and to pass the Ortega Bill as stands. The only good thing about this is that AT LAST we know where the U.S. Department of State stands, as the transparency which has been called for by the Hague Treaty has not characterized the DOS' interactions with the adoption community in regard to Hague implementation in Guatemala.

Since March of 2006, when the U.S. Department of State announced that they were considering Guatemala to be a Hague country (despite the accession of 2003 being declared illegal by the Constitutional Court) and would expect Guatemala to enact Hague Compliant legislation if Guatemalan children could continue to be adopted by U.S. families when the Hague Treaty goes into effect in the U.S., all participants in the Guatemalan adoption community - especially experienced adoption professionals - have provided input to the Guatemalan and U.S. Congress as well as the Department of State and various Guatemalan and U.S. officials, about creating a model of Hague compliance and regulatory oversight which also assures children the opportunity to gain permanent families as early in their lives as possible. However, while the U.S. is accrediting private adoption service providers to provide the broad range of services an adoption requires, as well as being held accountable for maintaining good practices, the U.S. seems unwilling to accept a similar model from sending countries. Considering that the sending countries also have minimal public social services (prenatal, natal and post natal assistance), - and that Guatemala has the highest infant and child mortality rate, highest child malnutrition rate, lowest education rate in the region -it appears that the sending countries need private services and the involvement of the private sector the most.

Instead of incorporating the concerns of the experienced, and used this opportunity to promote needed improvements to the Guatemalan adoption system, while keeping its strengths intact, the US Department of State has instead contributed to an increasingly chaotic and lawless process in their attempts to stop US citizens from adopting from Guatemala, and encouraged misinterpretations and misapplications of existing laws and contributed to increased polarization and politicization, none of which serves the best interests of the children they are purporting to protect.

Not only did the U.S. insist that Guatemala pass "Hague Compliant" legislation, but they insisted that the Guatemalan Congress vote to reaffirm the Hague Treaty, despite the Constitutional Court decision of 2003. In an effort to protect adoptions of Guatemalan children to the U.S., the Guatemalan Congress passed a law which would go into effect on Dec.31, 2007. The intention was that after that date, the new papers of accession would go to the Hague to take effect by April or May 2008. If the former accession papers could be used, why did the U.S. even insist that they vote again on the Hague? Now the Congress is restating its intentions, by stating that new adoption laws and the Hague Treaty effect date should be on or after April 30, 2008 and the U.S. Department of State, via Consul General John Lowell and the Ambassador, are trying to get the Guatemalan congressmen to set an implementation date for the Hague Treaty and the new legislation for January 1, 2008. They are also STRONGLY supporting the

Ortega Bill despite more than 10 constitutional problems and its serious and horrible consequences to children.
One only has to look at the intercountry adoption systems in all of Central and South America, who have models similar to the Ortega Bill, to see how dysfunctional such laws are in providing adequate adoption services. Thousands of children are in institutions or on the streets or living lives of unremitting poverty, thousands are without families while thousands of families all around the world would be willing to embrace them. These children have become the invisible victims of purported child protection bills. These bills do not provide for more family support services, nor child and family welfare services, they only create bureaucratic hindrances to intercountry adoption.

The Department of State needs to be accountable to the huge number of US citizen families who have been touched by intercountry adoption and those who can bear witness to the fact that children from our children's homelands cannot be adopted. While Congress celebrated the passage of the Adoption Law of 2000 and the US intent to ratify the Hague Treaty, lauding it as an achievement in child protection, we do not believe that this is what was intended. We don't believe that anyone who truly stands for child protections would approve of imposition of a short sighted and cruel policy, when reasonable and Hague compliant alternatives are being promoted. The U.S. has taken 14 years to implement the Treaty. Guatemala has asked for 4 months more. The U.S. is aware that private services with public oversight serve children best, so why prevent that in a country which needs services to children as badly as Guatemala does?
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You can fax Ana Mary Coburn at the DOS Office of Children's Issues at (202) 736-9111