May 08, 2008

New ADA Post

The ADA has a new post on its website with its take on the PGN birthmom interviews being requested. You can find it here: http://www.adaguatemala.org/English/news/

Posted by Kevin at 11:07 AM

May 01, 2007

Votes in Guatemalan Congress

Tomorrow, the Guatemalan Congress will meet to discuss two adoption proposals. Neither of them, if passed and implemented, would be good news for the future of Guatemalan adoptions. The best information on them is available through the ADA's website. You can find it here: http://www.adaguatemala.org/English/news/

We believe that it is quite sad that all the human rights organizations can not work towards developing transparent, ethical adoption systems. Not be confused, these types of laws do run contrary to the spirit of the Hague Convention and no matter how their nomenclature may be sugar coated into creating the appearance that children will still have the opportunity to thrive in a family created through adoption, experience from other countries proves that will not be the case. I would be happy to be proven wrong on that but truly doubt it will be the case.

The ADA is poised to fight for the rights of children and birthmothers as well as the Guatemalan Consitution. And as their post points out, this far from a done deal.

Information on the Ortega Law is available through the Guatadopt search option.

We will post things as we learn them.

Posted by Kevin at 09:23 PM

April 18, 2007

ADA Files Constitutional Challenge against "THE MANUAL OF GOOD PRACTICES"

Monday, The ADA filed its Constitutional Challenge against "The Manual of Good Practices". You can read their statement HERE: http://www.adaguatemala.org/English/news/2007/04/constitutional_challenge_again.html

Posted by Kelly at 03:00 PM

April 17, 2007

ADA Post on Law Proposal & More

The ADA has added a new and very interesting post to their website. You can find it here.

I want to shed some light on one aspect that Susana mentions in it. A few weeks ago, UNICEF held a conference in Antigua and invited memebrs of the Guatemalan Congress. The "conference" was to promote the Ortega Law Proposal (which you can get info on via the search option on Guatadopt). At this conference, a representative of the US government (from the DOS I believe) gave some sort of endorsement of the law.

This move took many in the adoption community by surprise since it seemed to contradict the communications that had been going on between the adoption community (Guatemalan and US) and the US government. Guatadopt has not posted this because (a) we have not seen any indication that the Guatemalan Congress will pass the bill (b) we were waiting to see any response from the formal entities in the adoption community.

What does this mean?

Based on the DOS FAQ, other statements, current actions being taken by DOS/CIS, and this Ortega endorsement it seems clear to me that the "official" US policy toward adoptions from Guatemala has become one of essentially ending the system. While laws like Ortega look reasonable on the surface, they have proven quite the contrary. Countries like El Salvador, Honduras, and others have implemented this sort of cookie cutter legislation and we can see what impact it has had on the rights of children to grow up in a family - domestically or abroad.

We do not know exactly what the investigations into Mary Bonn and others have uncovered. And we can certainly appreciate the fact that the government can't reveal the findings of an ongoing investigation until it is completed. I believe it is safe to assume they have found evidence of unethical activities that in my opinion could have been largely prevented had government officials taken a more proactive approach before now. But those things should not be used to penalize innocent children and families. Those things should be used to immediately ban any unethical adoption service providers and throw the book at them criminally. If a few people had been arrested a while back, it would have set a precedent that the US was serious about laws being followed.

I hereby officially (for whatever that is worth) call upon DOS and DHS CIS to be more forthcoming and transparent with where they stand on Guatemalan adoptions.

1.) The ominous statements and generality of "Guatemala must become Hague Compliant" are not enough. Hague compliance is not black and white. So make our position clear. This is about innocent children and US taxpayers -not politics.
2.) Make it clearer what families in process or considering starting an adoption now face. I know you can't give an exact timeline but I believe you could give more insight than the DOS FAQ to help prospective adoptive families make informed decisions
3.) Communicate with the families who made poor choices on who they hired as adoption service providers. It is not their fault that they may have hired an agency connected to someone who will likely end up behind bars. If you need to investigate, let the families know what they are up against. Adoptive parents want to know their adoptions were clean. You can communicate openly without jeopardizing any investigations.
4.) If there is any sort of an agency hit list, then officially ban those agencies. Lord knows there are a few who should not be allowed to operate. Don't penalize their current clients and don't allow them to take on any more clients.

Okay, so this started out as a post informing people about what ADA had posted and turned into something more. Needless to say, all Guatadopt is asking for is honesty from our government whose salaries we pay and rational adoption policy that ensures ethical adoptions without detrimental effects to children.

Paz!

Posted by Kevin at 09:43 AM

March 12, 2007

New ADA Posting

The ADA has issued a new post on their website. You can read it here: http://www.adaguatemala.org/English/news/

Posted by Kevin at 10:52 PM

December 22, 2005

2005: A VERY POSITIVE YEAR FOR GUATEMALAN ADOPTIONS

{Posted on Behalf of Susana Luarca, ADA, Guatemala}
When a year comes towards its end, it is a good time to count the blessings that we have received throughout the year. For some of us, the greatest blessing that we can be grateful for in this year of 2005, is that adoptions are still possible in Guatemala, with a legal system that allows children to be placed with families just a few months after their biological families decided to relinquish them.

The people in Guatemala are constantly misinformed about the "atrocities" and "abuses" that are done by the adoption professionals in order to place a child with a foreign family. At the same time, they are told that the foreign families are unable to love those children as their own, because they are of a different color and therefore, the children are adopted for all sort of illegal purposes. Unable to understand the concept of adoption, because the majority of Guatemalans would not adopt a child, they easily believe that adoptions should be stopped, until a "legal system that protects the rights of the child is in place". That is what UNICEF has been telling them all these years, and until very recently, nobody argued that. But not anymore. The most important leaders of the public opinion in Guatemala are raising their voices in defense of adoption. For them it is very clear that adoption is good for the child who needs a family, because the country that does not provide the most basic social services, should not prevent the needy children to find them abroad.

For the last fifteen years, there always has been a proposal of adoption law pending approval before the Guatemalan Congress. Those proposals are very similar, because all of them have been conceived by the same mother: UNICEF. This institution that used to be known as the biggest effort of mankind to help the situation of the children in the underdeveloped countries, has shifted its course thus becoming an instrument of control of the population growth. While there are one hundred million orphans in the world, UNICEF spends millions of dollars to convince the Guatemalan authorities to pass laws that would make adoptions impossible, just to prevent three thousand children to leave Guatemala every year, in the arms of loving adoptive parents.

The approval of the Hague Convention in Guatemala in 2003 brought enormous grief to the waiting parents of the children whose adoptions were no longer possible during the six months that such convention was arbitrarily applied by a despotic State Attorney's Office (Procuraduria General de la Nacion, also known as PGN). The success of the constitutional challenges filed by lawyers who were not willing to let the children be deprived of permanent and loving families, restored the order and brought together children and parents. At the same time, it taught all of us some lessons: that we were not as powerless as we thought, that adoption is a constitutional right to every child and to every parent who wants to place a child for adoption or who wants to adopt, and that the war is far from being over.

Two organizations were created as a result of the Hague Convention fiasco: Focus on Adoption, (FOA) and Association for Defense of Adoption (ADA). Both have been working together to keep adoptions open in Guatemala . Even the most acerbic critics of the adoption system, must admit that shutting down the system is not the solution to improve it. With that in mind, FOA and ADA have been instrumental in advocating to keep in place the very efficient system of placement that works so well in Guatemala and that allows private institutions to keep thousands of children off the streets, without any funds from the government. There is no way to express to Hannah Wallace, president of the board of directors of FOA and to all its members, our heartfelt gratitude for their hard work and unfailing support of Guatemalan adoptions.

The funding of this joint work of FOA and ADA has been provided by many people whose lives have been touched by adoption. Although we will never be able to thank each and all of them individually, we want to express our gratitude to Traci Orr, of "For This Child", who worked very hard to raise THIRTY THOUSAND DOLLARS to fund the activities of ADA. Those funds have been used in an education campaign to change the way Guatemalan adoptions are perceived by the public in general and by the Guatemalan authorities in particular. Part of that campaign was the grant that allowed five Guatemalan congressmen to attend to the Second World Conference of Children Without Parental Care, that took place in Worcester, MA, in November.(co-sponsored by International Advocates for Children, Focus On Adoption, and Center for Adoption Research.) The Congressmen were able to attend the conference and to listen to people of many countries express their support of adoptions, even though many of them were public officers or delegates of the central authorities of their countries. For the Congressmen, it was a very enlightening experience. It was reinforced the next day when they attended a gathering of adoptive families sponsored by Wide Horizons, where hundreds of families and their children got together to celebrate adoption. Later in the day, they were invited to the home of the adoptive family of three Guatemalan boy, where they were joined by other families of children of our country. More than a thousand words, the love that they could see there, convinced the congressmen that adoption is a wonderful option that must remain open. Thank you Traci, and all of you who made this possible. God bless you.

We wish you a peaceful and joyous Christmas and a wonderful New Year.
Susana Luarca, Attorney at Law,
Asociacion Defensores de la Adopcion ADA

Posted by Kelly at 08:18 AM

October 21, 2005

A Post of Thanks

Hello all,

I write with a status report and with sincere thanks to everyone who donated to our funds matching campaign for the ADA. Everyone who donated will receive a personal letter of thanks, but I wanted to let everyone know that on Monday, For This Child delivered a check for $30,000.00 to the ADA -- thanks to all of you (we collected about 14,000.00 in donations).

I have always been a big believer in grass roots action and this money will go far for the cause. Thank you, thank you.

Traci Orr
Executive Director
For This Child Inc.
www.forthischild.org

Posted by Kevin at 05:16 PM

September 23, 2005

Yes, The third reading has been suspended.

{Posted on behalf of Susana Luarca}

Dear Friends,

The news about the suspension of the third reading is true and that is excellent news. The opposition against the proposal has been growing. Today - also in Prensa Libre-, Liga Pro Patria, an organization that is not related with adoptions, published a declaration in very strong terms, against the proposal, because it attempts against the separation of powers, when it takes away from the judiciary the process of adoption, giving it to the Procuraduría General de la Nación, whose only purpose is to be adviser to the the other State entities. It also criticizes that the PGN would take away the parental rights, without a due process, deciding who can adopt the children. The support of the Liga Pro Patria is a giant step forward, in a country where UNICEF has maligned adoptions son much, that even the people who believe in the goodness of adoption, have reservations about the "the way adoptions are done in Guatemala".

We are organizing a seminar to educate the public officers about the process of adoption and the way adoptees live in the country of destiny. It would be great if you could send me videos of you and your children, stating where do you live, when did you adopt and something about the personality of the child, to me by filling out THIS FORM MAIL. We will make a documentary with them, to show and tell at the seminar. We will not tolerate any further that UNICEF continues keeps maligning adoptions. Help us to tell the truth and to keep adoptions open, so every child grows up in a loving family, regardless of the place where that family lives.

Best regards,
Susana Luarca
Asociacion Defensores de la Adopcion
Guatemala City

Posted by Kelly at 12:15 PM

September 22, 2005

The second reading of the UNICEF/BERGER/ORTEGA proposal

{Posted on behalf of Susana Luarca}

Dear Friends,
Today was the second reading of the proposed adoption law. But there is still time to defeat it. There is a motion to send the proposal to the Commission of Legislation and Constitutional Issues, where it will be declawed.

Oscar Berger is pushing a proposal to approve again the Hague Convention. Since the Constitutional Court is still formed by the same people, in the remote case that the Hague Convention is approved by Congress, we only would have to file again a constitutional challenge. We are in a much stronger position this time, because we already have the ruling saying that the accession is unconstitutional, six months of failure to prove how ineffective the Hague Convention is and a ruling of the courts saying that the notarial process cannot be affected by the Hague Convention.

I can imagine the anxiety that my words are bringing to those of you who are about to start the journey of adoption. Somebody said that only China is predicable. It is still to be seen if it continues to be predictable, now that China ratified the Hague Convention this past week. In Guatemala,you can trust that we will fight day and day out to keep UNICEF at bay, educating people about the goodness of adoption and how it not only helps those children who are adopted, but the whole country, because with each adopted child, Guatemala gets a new goodwill little ambassador and loses one potential gang member.

Help us with your support, your prayers and your faith. We will not let you down.

Best regards,
Susana Luarca
Asociacion Defensores de la Adopción
--------------------------------------------------------

Note: The Suspension of the 3rd reading is discussed in Prensa Libre: http://www.prensalibre.com/pl/2005/septiembre/23/123935.html

Posted by Kelly at 08:47 PM

September 21, 2005

The second hearing did not take place!

001b.jpg

{Posted on behalf of Susana Luarca, ADA}
Dear Friends,

ADA organized a demonstration against the proposal of adoption law. About 200 people came, and with signs expressing their rejection towards the law, marched from the gathering place to the Congress, where they were interviewed by the local press and had the opportunity to speak to several Congressmen and women, about the detrimental effects of the proposal. Never, in the history of adoptions in Guatemala, something like that happened before, that people were openly defending adoptions, because UNICEF has maligned adoptions so much, that to make adoptions possible is regarded by those who don't know better, as something "shameful".

004b.jpg

The rise of the price of the gas has affected the economy of everybody in Guatemala, so yesterday took place a big demonstration against the high prices and the low salaries, by people who demanded a rise in their salaries. President Berger rejected their petitions. Today, before the Congress had the chance to hear the second reading of the proposal of adoptions law, the FRG presented a motion to discuss a rise in the salaries, to make up for the rise in the prices of many basic things. That brought a lot of discussions and prevented the reading of the proposal of adoptions law. Meanwhile, the people of ADA had the chance to talk to more congressmen and to explain to them that such proposal was facing a lot of opposition. Some of them expressed their concern and agreed that Guatemala cannot provide at this time, the means to properly educate and keep out of the influence of the gangs, the children who do not have families who love them and care for them. Yesterday, at one center of detention for youths who have committed felonies, were killed ten of them and injured a lot of the inmates, as a result of the attack of one of the gangs, who shot the teenagers, for unknown reasons. The congressmen had to admit that stopping adoptions would increase the number of the children who would become delinquents and the country does not have the means to neither protect the children, nor the society.

The second hearing will have to be rescheduled, and when it does, ADA will be there, with more people. I asked today one of the caregivers of an hogar: "How many people could you bring to a demonstration against the proposal of adoptions law?" She answered: "Tomorrow, I could bring fifteen, but if I would have more time to send messages, I could bring a lot more." If everybody could do the same, the Congress would see that adoptions is a matter that does not only affect a "small group of lawyers", but it is something that affects all the country and that it would be wrong to rule against something that so many people are willing to protect. As soon as we know when the second reading will take place, we will post it, so you can tell everybody that you know in Guatemala, to help with the demonstration.

For those of you who are gathering your paperwork and still do not have a referral, do not worry. Adoptions in Guatemala are far form being closed down. When the Hague Convention was used to paralyze adoptions by the incompetent bureaucrats of the PGN, the Constitutional Court ruled in favor of the notaries, stating that the convention could not eliminate the notarial process of adoption. By the same token, an ordinary law cannot modify the constitutionally protected process of adoption, where a notary presides it, because to do so would be unconstitutional.

Even in the worst scenario, where the proposal is approved, the law still has to go to the president for his approval, then it has to be published in the official newspaper and it would be until thirty days later, that the law would become effective. All processes started before that day, would be finished according to the "old laws". To deem that a process is started, the child has to be already born and the power of attorney has to be recorded at the Guatemalan Supreme Court. It would not matter that not all the documents are put together. The missing documents can be added later.

ADA is poised to file all the necessary legal actions if this proposal ever becomes a law. You may choose to switch your quest for a child to another country, but keep in mind that the children of Guatemala cannot change of country of birth. It is for them that we have to keep the successful legal system that allows them to find permanent and loving families, even if those families live in another country.


Best regards,
Susana Luarca
Asociacion Defensores de la Adopción - ADA

Posted by Kelly at 07:53 AM

September 17, 2005

Weighing in on the Proposed Law ("The Ortega Law")

{Posted on behalf of Susana Luarca}

Dear Friends,

The Guatemalan newspaper "Siglo Veintiuno" brings today the news that two presidents of commissions of the Congress, a congressman, the Attorney General and Josefina Arellano, the chief of the children section of the PGN traveled to The Hague, to inform about the new developments regarding the adoptions law. The same article states that the trip was made with the blessings of the Canadian and US ambassadors, who are glad that Guatemala is about to change its adoptions law.


The trip itself is just a waste of time and money, because there is no need to send five people, - all expenses paid - to Europe, to inform to an organism that Guatemala does not belong to, of the practical application of a treaty that Guatemala is not a member any more. On the other hand, if they really could pass the law, they would have done it as a matter of "national urgency", overnight and without warning, as they passed the approval to the Hague Convention in August 13, 2002. Because they still don't have the votes, we have to work harder, to make all the congressmen and women, who are not aware of the dangers of such a law vote against it.

The support of the ambassadors and especially, of the new US ambassador to this law, that would derail the adoptions of so many children is something that the citizens of those countries should not allow. Talk to your senators and congressmen and to everyone who would listen, that the support to such a law means a death sentence to many children.

ADA will do whatever is necessary to keep the system running. All we need is your support. We accept donations and prayers.

Best regards,

Susana Luarca

Posted by Kelly at 06:32 PM

August 10, 2005

REASON PREVAILS - More from Guatemala

{Posted with permission from Susana Luarca, Asociacion Defensores de la Adopcion}

This morning was scheduled the meeting of the Commission of the Child and the Family of the Guatemalan Congress, to discuss and approve a favorable opinion of the UNICEF' s proposal of adoption law. With 176 million quetzales being dangled before our government, as a reward for letting UNICEF dictate policies regarding many issues, - adoptions among them - the president of the Commission, Jorge Luis Ortega Torres announced that the favorable opinion was to be signed today and the law would be approved in September, before the meeting of the Hague Conference for International Private Law, because the Guatemalan delegation has to inform about the progress with regard to adoptions. But it was NOT, because the other congressmen did not want to support such a proposal.

The project of law has as an only merit, that it could be used by the Law students to identify every possible violation to the Constitution that a law can have. It would be too long and useless to analyze it here, because such proposal cannot become a law of Guatemala.

The Commission of the Child and the Family, after analyzing the proposal decided against its approval. The future of such proposal looks very bad.

This is a good day for the children of Guatemala who need families and for the families - single or married - who will open their arms and their hearts to them. Congratulations!

Best regards,

Susana Luarca,
Asociacion Defensores de la Adopcion
Guatemala City

Posted by Kelly at 02:21 PM

January 02, 2004

Feliz Aqo Nuevo!

(Posted with permission from Susana Luarca, Attorney at Law, ADA)

Dear Friends,

This is the moment to stop and think about the year that just ended. Although it was a difficult year, the balance is very positive for adoptions: the Hague Convention is no longer a threat, the Valladares law was not passed by Congress and the Constitutional Court ruled in favor of the rights of the professionals, restoring privileges that were taken away from the notaries by an unconstitutional law , proving that the notarial process, if it is eliminated by a new law, would be equally restored by the Constitutional Court.

The victory of Oscar Berger is a victory for democracy and for Guatemala, because he is a good person and the people who are with him are people who are willing to work for the welfare of our country and of our people. We have no doubt that the new government will understand the need for homes of the orphans and of the abandoned children and will not hinder adoptions, following the wrong idea of UNICEF, that the children must remain in their country, even it means that they will die there within the first years of their lives. The shift of political power in Congress is also very encouraging. We have reasons to believe that the new Congress will be more honorable and responsible, and that the Valladares law will not be approved.

The legal process of adoption has been totally restored in Guatemala. The suspension that lasted six months caused a delay in all cases, but despite the lack of diligence of the chief of section of the PGN, Rudio Lecsan Merida, whose negligence is legendary, the approvals have been coming out, making many families very happy.

The most "difficult to please lawyers" of the PGN, like Ana Ayerdi and others, were sent to different sections of the PGN, where they cannot do much harm. Although some of the remaining lawyers still believe that article 21 of the Convention for the Rights of the Child entitles the PGN to request anything that they deem proper, some of them are beginning to understand that it is not so. A criminal process against Merida and one of the reviewers who abused their power, delaying the approval by demanding more recently issued documents was filed and despite the pressure put by the PGN the Judge has not dismissed the criminal lawsuit. The vacation of that court and of the district attorney's office has slowed down the criminal process, but the message is clear: the lawyers of the PGN cannot abuse their power and get away with it. Someone will hold them accountable and their careers, their jobs and their freedom will be on the line.

As soon as Oscar Berger learned of his victory, he received a petition of different leaders of many sectors of Guatemala. One of the main points is a request to "clean the PGN", which means that they want the removal of Luis Rosales, the Attorney General. We hope that Berger grants this petition and appoints someone who really and truly will fulfill the duties of the State Attorney. Among them, to see that the chief of the section of the Procuradura does his work with diligence, for the sake of the waiting children and families.

At the dawn of the new year, we feel very confident that we will keep adoptions open in Guatemala, despite the continuous efforts of UNICEF to close down that way of escape for the children who otherwise would be abandoned to a certain death. Not only the political situation has changed for the better, but the battle has made us stronger and more united. With the help of God, we will keep winning, one battle at a time, making the world ad better place, one child at a time.

If you are thinking about adopting a child, do not hesitate to adopt from Guatemala, the only country where the Hague Convention has been defeated and adoptions continue to be processed privately, with the necessary checks and controls to guarantee that the child that you are taking home is really the child of the mother who relinquished the child...and that the care that your child receives while the adoption is processed, is generally very good. There is always room for improvement, and with your help and our energy, we will make changes that will benefit everybody, but most of all, the waiting children.

Les deseo Feliz Ao Nuevo y muchas bendiciones a todos!

Susana Luarca, Attorney at Law,
Asociacin Defensores de la Adopcin

Posted by Kelly at 10:23 AM

December 05, 2003

Update December 5th, 2003

(Posted with permission from Susana Luarca, Attorney at Law, ADA)

Dear Friends,

This is a brief summary of recent events.

1. UNICEF CONFERENCE

On December 3, 2003, took place the conference sponsored by UNICEF, to present to the two presidential candidates and to the recently elected 331 mayors and 158 congressmen, the plan of UNICEF to solve all the problems of the Guatemalan childhood and adolescence.

The conference was held at the Conventions Center of the Westin Camino Real. Although it is a very large room, it was packed. The guests were also invited to a night at the hotel and meals, aside from the cocktail at the end of the conference. That, and the opportunity to rub shoulders with the new figures in the political scene made many of them to attend.

Five of us went to see what the conference was about (Dina Castro, Carlota Torres, Jorge and Feliciano Carrillo Gudiel and I). The first speaker was Gladys Acosta, the Peruvian delegate of UNICEF in Guatemala. Her message was well delivered. She stated that the situation of the children and the youth in Guatemala could not be worse and that UNICEF has studied how it can be improved, but the actual solution is in the hands of the local government. It requires over 917 million dollars in a four year period, and the political willpower to do it. There was no offer of financial collaboration by UNICEF. Just the "wise guidance" of the supranational entity. Each guest got a booklet made of thick glossy paper, with beautiful pictures of children of all races, where the different problems of the children of Guatemalan were outlined. The chapter of "Protection", states in its first paragraph: "In the year of 2002, there were authorized 2933 adoptions. Only 62 of those adoptions were
national, and all the rest were international adoptions, that were authorized without controls or guaranties to protect the rights of the adopted children."

The problem is that so much of what was said by the different UNICEF speakers is true, because we can't deny that the situation of the children is terrible. UNICEF asserts once again its position as "the expert" in the problems of the Guatemalan childhood. Therefore, when such entity maligns adoptions, everybody believes it, because what they say is true about everything else.

The conference was very effective to assert UNICEF's power, to display its unlimited resources and to tell the new president and authorities what does UNICEF expect from them. Needless to say, both presidential candidates thanked UNICEF "for the opportunity of being there and for caring for the Guatemalan children".
How does one explain to the already "brainwashed" new authorities that UNICEF is not the benevolent and truly concerned entity that it pretends to be?

We left the conference after the candidates spoke, just before the director of UNICEF for the area started his lecture. My personal impression is that Berger is the next president of Guatemala and that this coming year will be extremely tough for adoptions. We will have to fight every day to keep adoptions open, because UNICEF is not taking no for an answer. If it is not the law, they will use other means to try to stop the children from being adopted internationally. Who wins the presidential elections is irrelevant for adoptions, because the real threat comes from UNICEF, who will influence the new president with whatever it takes.

2. THE ADOPTIONS LAW

The second reading of the adoption law was held two weeks ago, but the quorum was insufficient, so it can be challenged. The same goes for the first reading, when the FRG did it without the required opinion of one of the two committees. The new congress will have to decide if they go ahead with a law that has been accused of violating at least seven constitutional provisions or to start fresh with a new project.We believe that there is a chance that the current project will not be accepted by the new congress.

We do not oppose an adoption law. The problem is that we want a law that allows adoptions to continue and UNICEF wants a law that does exactly the opposite. During the "Reign of terror of the Hague Convention" UNICEF remained silent about the decrease in the number of adoptions. It was until the Hague was totally and completely defeated, that UNICEF includes international adoptions in its agenda.

More important than a new law, are the controls that all of have to use to protect the interests of everybody involved in the process. The adoption agencies should oversee the work of the adoption professionals in Guatemala and discontinue the services of those who do not perform their work with honesty and responsibility. The children must go to the adoptive parents well cared for, the communication during the process must be fluid and the mistakes and delays must be kept to a minimum. Adoption does not have to be painful. Should not be.

3. VISITS TO THE PGN

Although many cases have exited PGN with approvals, the PGN lawyers continue to raise objections that lack legal foundation. That should not be allowed. With my sister Ana Rosa, who is also a lawyer, we went yesterday and the day before to the PGN to talk to the lawyers about the many cases that are being delayed. The nicest and easiest to approach of the PGN lawyers was Hugo Mendoza Campos, who is also the lawyer who has a criminal process pending for five different felonies in connection to the adoption of a five year old boy (abuse of power, disobedience, negligence in the performance of his official duties, usurpation of powers and violation of the Constitution). The rest of them were like Mendoza Campos used to be before the criminal lawsuit. As soon as one mentions that they have no right to delay the cases they say that they are working non stop, and that thy cannot do it any faster. When we told them that the role of the PGN is to give an opinion based on law,
they say that the Convention for the Rights of the Child enables them to do it for the "best interest of the child. We told them that the "best interest of the child" is not a "carte blanche" to do as they please and to disregard the laws and that we fail to understand how that superior interest is protected by delaying unnecessarily the moment when the child - at last - will get a permanent and loving family. We told them that if they insist in delaying the files or in making up reasons to reject them, we will file criminal charges against them. We expect that since they would loose their legal practice (automatic disbarment), their jobs and their freedom, they would be more eager to fulfill the law. But it seems that they do not believe that we will do it.

We tried to talk to Merida but he was out. Although he claims that he signs files only on Thursdays and Fridays, he was not at his office neither yesterday nor today..

I left message with lawyer Epifanio Monterroso that we will continue filing criminal lawsuits against him for not doing his work. It is terrible that the files keep piling up in his office and he does not sign them, because he has another job -also paid by the State, which also is against the law - .

4. THE TRIAL OF BRUCE HARRIS

Emerging after a long time of keeping a low profile with regard to adoptions, Bruce Harris spearheaded the raid of the house for children in Costa Riva, where they found some children who were being adopted. He is again accusing the adoptions lawyers and the US parents of working together to get a child, at any cost, no matter how.

His trial for defamation of my person will be held on January 22, 2004 at nine in the morning. The trial will be public and the admittance is free. You are welcome to attend. If the trial actually takes place, Bruce Harris will be found guilty and will be sent to prison. It has been six years since he defamed me at a press conference and he keeps doing it, every time that he repeats his lies about me. That will be taken into account by the court.

Bruce Harris keeps trying to be judged as a journalist. On three separate occasions the Constitutional Court has dismissed the amparos that he has filed, stating that he cannot be protected by the special privileges of those who work in the media because he is not a journalist, he is a private citizen defaming another private citizen and that is why he should be tried as any common person.

Based on the interview that I gave to a newspaper where the reporter put words in my mouth, , Bruce Harris filed a lawsuit against methree years ago, for defamation. Bruce Harris keeps saying that when he accused me of doing adoptions of stolen children, (although all the adoptions that I did were of children already declared abandoned by the Court of Minors), he was " rightfully using his right of expression", but at the same time, when he accuses me of defaming him, he demands that the court " applies all the weight of the law to punish me for the serious damage that I did to his good name" His lawsuit does not worry me because I never said what the reporter wrote, and because the statement is not slanderous anyway. The only defense that Bruce Harris could argue is truth. But is is obvious that he has no proof of his false allegations and that is why he is trying to avoid going to trial.

I filed a complaint a year ago, before the Inter American Commission of Human Rights against the State of Guatemala, to get a ruling ordering Guatemala to pass laws that effectively protect the good name of the people, because with the current laws, people like Bruce Harris can maneuver the legal system during years in order to avoid being tried. I am still waiting to hear from them, although I talked personally to the lawyer in charge of the Guatemalan affairs when I went to Wahsington DC in April and she offered to look into it.

For all of you who exited PGN, my heartfelt congratulations and for the ones still waiting, be assured that we are committed to get all the cases out as soon as possible.

Best regards,

Susana Luarca
Attorney at Law
Asociacion Defensores de la Adopcion


Posted by Kelly at 02:29 PM

October 28, 2003

Update Oct. 28th, 2003

(Posted with permission from Susana Luarca, Attorney at Law).

Dear friends,

This morning a group of lawyers and hogar representatives had a meeting at Congress with Oscar Cifuentes, president of the Committee of Legislation and Constitutional issues. He told us that his party (9 congressmen) will oppose the adoptions law, which is a modified version of the Valladares law, but equally bad. In order to approve the law as it is, they need at least 75 congressmen and three hearings.

Later, we learned that the adoption law was passed by Congress in first hearing. This may sound scary, but just to give an idea of how things may work out, the project of adoption law of Nineth Montenegro has been on hold after the first hearing for ten years. However, it is an alert bell, that we have to be more proactive, because they will win only if we let them win.

Now, more than ever, we have to fight to oppose a very harmful law that will only make happy those who are the promoters of a campaign to limit the population growth: UNICEF-WHO-UNFPA have joined forces to collaborate with other UN agencies to promote aggressively their population-control agenda. Part of that agenda is to oppose international adoption, because it is a way of escaping death for those children who are adopted, but most of all, to those children who remain in the country, supported by adoption generated income.

The project of law is unconstitutional in many ways. We are going to file amparos and challenges to stop it. We need your support against UNICEF and its anti adoption agenda. The network that we have been creating can grow, to protect those who cannot defend themselves: the children of Guatemala.

Best regards,

Susana Luarca, Attorney at Law
Associacin Defensores de la Adopcin


Posted by Kelly at 03:04 PM

October 25, 2003

Update Oct. 24th, 2003

(Posted with permission from Susana Luarca, Attorney at Law).

Dear Friends,

We learned today that the Third Court of First Instance of the Criminal branch admitted the complaint filed by the director of an orphanage member of ADA, against Rudio Lecsan Merida and against one of the lawyers of the PGN, Hugo Enrique Mendoza Campos. The director of the hogar filed charges against them for delaying unnecessarily the adoption of a seven year old boy, who was ruled abandoned by the Fourth Court of Minors and was being adopted by an American couple. The felonies committed are five: neglect to perform their official duties, abuse of authority, disobedience, violation of the Constitution and usurpation of powers.

We still dont know how Merida and Mendoza reacted to the lawsuit. Since Merida is still a congressman, it will be the Supreme Court of Justice who decides if there are merits to prosecute him. The charges against Mendoza will be investigated by the District Attorney.

We trust that the lawsuit will make them realize that they are accountable for their actions and that we are willing to hold them responsible for all their actions. The law applies to everybody and they are not above it.

Other complaints are being prepared. The reluctance of Mrida to sign off the cases is the common ground for them, but each case has to be analyzed individually, to accuse also the lawyer who reviews the case. Some of the lawyers are worse than others regarding the illegal requirement of unnecessary documents or the groundless objections. One of the most acerbic critic of adoptions is the PGN lawyer of the Adoptions Section, Ana Jesus Ayerdi Castillo. Today we learned that Ayerdi was transferred to another
section of the PGN in connection to the lawsuit filed against the head of the Procuradura, in a last minute attempt to avoid the many lawsuits that Ayerdi could get. Another information that was obtained is the order that Merida gave to the lawyers of the adoption section, to work around the clock on the cases. Many files were passed to them and the place is a beehive of working people. We still dont know if the order was to approve the cases that filled the legal requirements or to find reasons to object and reject the cases. Only time will tell if Merida is willing to open the door to new criminal accusations.

We never faced before a situation like the current one. The only explanation is the overwhelming pressure that UNICEF has been making over the Congress, the PGN and the PDH (Procuradura de Derechos Humanos) to get the approval to the Valladares project of law. That project would close adoptions completely, as was shown by the implementation of the Hague Convention. We have reasons to believe that such law will not pass. But if it does, all processes already started will be finished according to the existing laws at the start of the process. Needless to say, we are prepared to file as many challenges against the law, as it would be necessary, to allow the children of Guatemala to find their way to loving homes. Besides, if adoptions are suspended again, we will hold responsible UNICEF and those public officers who sided with that organism, in what only can be judged as a crime against humanity.

Neither the authorities nor the private persons who make adoptions possible should be allowed to disregard the law. The strict scrutiny of the adoptions performed by the PGN lawyers in the review of the cases is the best safeguard of the legality of the process. However, the abuse of that power and the delay in the fulfillment of their duties is detrimental to the legal system. We cannot state that adoptions are processed according to the law, if the PGN is breaking it.

My colleagues and I want to tell those of you, who are waiting for a son or a daughter to come home, that we are committed to make that happen. The battle is not easy, but we never expected it to be. What we do not expect and will not accept, is a defeat. That is for sure.

Best regards,

Susana Luarca, Attorney at Law

Associacin Defensores de la Adopcin

Posted by Kelly at 12:06 PM

October 18, 2003

Quick Update Oct. 18th, 2003

(Posted with permission from Susana Luarca, Attorney at Law).

Dear Friends,

This is a quick update:

1. Radio program. Yesterday took place a radio program with lawyers of the PGN, of the PDH (Procuradura de Derechos Humanos), an adoption lawyer (me), the director of an hogar and an American adoptive mother. It is part of our plan to send the public a different message about adoptions. I can't give an objective opinion, but I think that it went very well. The PGH and the PGN came across as if their role is to stop adoptions or at least , to make them as difficult as possible. The mother, the director and I conveyed a more human and concerned for the children message.

2. The DOS statement. It is totally slanted.I would expect to find that information on the website of an organization that opposes adoptions, but not as the official expression of the US government. Somebody should tell President Bush that the DOS is not behaving well.

3. The Amparo, As I said before, it is groundless. After listening to the lawyer who drafted the amparo (at the radio program) I am more convinced that he does not know what is he talking about.

4. 20 de Octubre - This Monday is a holiday. Anniversary of a revolution that ousted the dictator Jorge Ubico, after 14 years of dictatorship, in 1944.

5. Court vacation: I was told today that the Third Court is not getting any more adoption files, because it does not work on them. The First and the Third will go on vacation for a month at the middle of November. The second and the Sixth will close on December and will be back in January.

6. The PGN is not working properly yet. The increasing amount of previos deserve to be handled with the proper legal actions.

7. The elections. Will be held on November 9th. No matter who wins, the opposition to adoptions will continue, because that doesn't depend of a political party but of UNICEF, who will keep putting pressure on whomever wins. The authorities at the PGN don't change and the Supreme Court stay for another year.

I will be back. If you need to know about anything else, let me know.

Best regards,

Susana Luarca
Attorney At Law
Asociacin Defensores de la Adopcin

Posted by Kelly at 10:10 PM

October 12, 2003

Update Oct. 11, 2003

(Posted with permission from Susana Luarca, Attorney at Law).

THE AMPARO: THE LATEST TRICK OF UNICEF
The Procurador of Humans Rights, Sergio Morales - former UNICEF consultant, filed an amparo yesterday (dated today) on the grounds that the Constitutional Court ruling that upheld the challenge against the law that approved the accession of Guatemala to the Hague Convention, left a void in the legislation, because the Hague Convention eliminated the notarial system, so now there is no legal system in place to do adoptions. He says that "he is very concerned for the fate of the 1,500 children whose adoptions are being approved within ten days by the PGN without supervision". He requests the Constitutional Court to order the PGN to suspend international adoptions immediately, and to order the migration office, to prevent adopted children from leaving the country, unless they have the proper authorization of the (already dismantled) Central Authority. He also wants the CC to order Congress to pass an adoption law in thirty days, compliant with the Hague
Convention.

Because we know of his long time affiliation with UNICEF, we understand the motivations of Sergio Morales. He even wants UNICEF to be heard as party to the amparo.

The amparo has no legal substance which means that it will not be upheld. That is why I did not post anything before. I thought that to discuss it would give it an importance that it does not have. The only importance that it has, is that it shows the desperate and shameful - measures that UNICEF is taking, to twist the arm of the Guatemalan Congress to pass the Valladares law. We will address that with the proper legal actions.

The Procurador of Human Rights has no legal right to make such requests to the Constitutional Court, and his allegations are false. The notarial system not only was never eliminated, but any law that attempts to do so would be unconstitutional. The pretense that he is doing it because he cares for the children who are being illegally adopted is laughable. He never said anything to help the children while they were waiting in vain for their adoptions to be processed under the guidelines of the Hague Convention, by a very inefficient Central authority and now that thing are beginning to move ahead, he gets worried.

UNICEF is not accountable to anybody. Their resources are unlimited and their political power is very strong. The United States is the principle donor to such entity with the taxes paid by the citizens of the of United States. They should have the power to stop its anti adoption activities. If you want to learn more about the role that UNICEF has played on international adoption, go to www.google.com and key in UNICEF + international adoption. The search will give you 99,300 sites to study how UNICEF, by demanding that the children be adopted only in their countries of birth, is sentencing them to die during their childhood, because they were born in the wrong country and to the wrong parents.

The PGN is very upset with the publicity about their unsupervised approval of 1,500 adoptions, but is doing nothing to deny it. We are not going to do it for them, because we think that the more lies they publish, the less credit people will give to the press.

Regarding the legal actions that ADA is taking, we will inform you of their results. Be assured that we are not resting until all the children whose adoptions are being delayed so unfairly, can travel home with their parents. By the same token, if there is something that you can do to help, now is the moment to do it. A letter to an sponsor of UNICEF maybe would not do a dent in its funds, but a flood of letters could dry the river of money that UNICEF gets every year. Lets give them our best shot!

Best regards,

Susana Luarca

Attorney at Law

Asociacin Defensores de la Adopcin

Guatemala City.

Posted by Kelly at 09:17 AM

October 07, 2003

Susana's Updates

I know many of you have been missing Susana's updates. I want you to know that she has been extremely busy trying to help with individual cases that aren't moving. At this time, she states that there has been nothing extraordinary happening in PGN or the US Embassy. Cases are moving on through....albeit a bit slowly.

Be assured that Susana will post when there is news.

Posted by Kelly at 12:36 PM

September 18, 2003

Thursday Update - Sept. 18, 2003

(Posted with permission from Susana Luarca, Attorney at Law).

Dear Friends,


The Constitutional Court ruling was published last Friday in the official newspaper, becoming effective the following day. It is not true that it takes a longer period of time to take effect. Although it is the best that could happen to adoptions, it does not have magical effects and cannot erase in a few days, the six months of devastating effects of the attempted implementation of the Hague Convention. Litte by little, the notarial process is being restored and the adoptions that were delayed are starting to move ahead.

We will analyze what is happening at:

a. THE PROCURADURIA GENERAL DE LA NACION (PGN)

Many files are being submitted to the PGN. The Guatemalan embassy in Washington website (www.guatemala-embassy.org/pressrelease.asp) states that The PGN has significantly increased the legal staff in charge of adoption matter to expedite the approval process seeking to provide a better service to the prospective families. We have been told that new lawyers have been hired to work on the delayed cases and in the new ones. Each lawyer is given ten cases a day, which means that the backlog could be reduced very fast. The PGN director Merida is still at the PGN signing hundreds of files. We expect that he keeps doing so, because his lack of signature is the bottleneck of the PGN part of the adoption process.

The law states that the PGN has three days to give the opinion on adoption cases. That time limit will have to be respected by its lawyers. We have heard of numerous cases where the PGN keeps the files for months, for no other reason than its own negligence. That has to stop. In all legal procedures, time is of essence. In an adoption, time is crucial because an unjustified delay leaves on hold the life of a child who becomes the innocent victim of a bureaucratic kidnapping.

The ruling of the Constitutional Court restored without any change the notarial process, and this has been accepted by the PGN. The only difference between a Pre March 5th. and a post March 5th case would be that the former got there first. Nothing else. Regarding the reasons for rejection, if a case is constantly being rejected by the PGN on groundless previos, it is better to let a Family Judge to rule on the case. It is not the ideal situation, but unless the director of the PGN tells the lawyer to stop playing games and give the approval, the lawyer will keep doing it. Former directors did that as part of their job. It is rather obvious that the current director does not instruct the lawyers to follow the law.

Some of the PGN lawyers have taken as a personal defeat the Constitutional Court ruling and have been combing the codes to find reasons to reject the files. That is why some case were rejected on new and equally groundless previos. As soon as the first of those PGN lawyers gets an arrest warrant, their perception of the situation will drastically change. The Court of Amparo will give us this week the necessary documents to start the criminal processes against the PGN lawyers. Now is the time to hold them accountable for their violation of the laws and for their intentional infliction of pain and suffering to the waiting families and children.

b. THE US EMBASSY AND THE DEPARTMENT OF STATE

The US embassy and the PGN have a close communication that sometimes is very detrimental to the adoptions. Between both entities, they make out their own rules and decide over different matters, even against the rulings of the judges and the laws of the coubtry. The embassy denies visa pre approval to children declared abandoned by the court of minors, if the mother is married, because the director of the PGN section of Minors is set in defending the rights of the husbands who desert their families, preventing the children of separated women who happened to have children with other men, to find a legal solution to the situation of their children. According to Guatemalan law, the child of a married woman is presumed child of her husband if the child is born during the 300 days after marriage or 300 days after their divorce. Therefore, even if the husband proves with a DNA that he is not the father, and the mother abandons the child at an orphanage, and after all the proper investigation the child gets an abandonment decree, the PGN and the Embassy, - to protect the rights of that unknown father - deny the child the right to be adopted.

During the past two days many lawyers presented the documents of families who have been waiting to get the DNA authorization. Each lawyer is allowed to present only four cases each day. To get the first place in the long line, they had to be there at four in the morning. In order to get the DNA authorization, the lawyer has to present a stack of documents to identify the mother, the child, the midwife, the hospital, the lack of HIV of the mother, their pictures. All the Guatemalan documents have to be not older than four months and duly translated into English. But very few lawyers got the so desired authorization for the DNA. We were informed that the reason is that a Guatemalan law student who works at the US embassy has to give her approval to the applications. Since all the BCIS staff is new and inexperienced, they ask this young lady to clarify many things, and she advises them to reject the applications for silly reasons, like the seal of the notary being not at right but at the center of the document, or because line 21 of the I 600 form (who has legal custody of the child?) is answered with the current information: the birthmother. The name of this officer is Astrid Morales. Before driving crazy the embassy with complaints, we suggest that you organize an effective way to handle this problem. To attack Astrid is not going to produce the desired effect. The embassy supports their officers and will just say that she is doing her job. We suggest that you let the adoption agencies to handle the problem and limit your intervention to write polite letters asking the BCIS to give the authorizations for the DNA test in exchange of the documents and to review the documents not at the window, but while the DNA is being processed. If the review of the papers shows that something is missing, an email to the lawyer in charge would notify him/her of the problem and would allow the lawyer to fix the problem, without having to go every day to the embassy or to send someone to inquire about the application.

We must point out the inconsistencies of the warning of the DOS in their announcement dated September 12, 2003:

"We are aware the Guatemalan Congress has discussed proposed legislation that would completely revise the intercountry adoption process. We cannot determine what impact such legislation would have on pending and future adoptions. Likewise, it is not possible to estimate how long it would take Guatemala to implement a new adoption process. We continue to urge the government of Guatemala to process all adoption cases as expeditiously and fairly as possible to avoid unnecessary and unreasonable hardship on adopting families and children. "

The threat of a new adoption law has been looming over Guatemalan adoptions since the eighties. UNICEF has been pressuring the Guatemalan Congress to pass an anti adoption law, disregarding the Constitution and endangering the lives of thousands of children who are well cared for, thanks to the income of international adoptions. UNICEF and its satellite MINUGUA are set in making Congress to pass laws that would prevent the needy children from being adopted by foreigners. The Guatemalan Congress already knows that any law that centralizes adoptions will be effectively challenged. The ADA is poised to file an amparo signed by over two hundred lawyers that would suspend the application of such law,because the notarial adoption process is constitutionally protected. Therefore the DOS statement, the proposed legislation that would completely revise the adoption process ignores that any new adoption law must be consistent with the Constitution.

During the past weeks the newspapers report very often that the Congress is not meeting to work. The current legislators who are interested in their reelection are actively working in their campaigns, in their hometowns. Last Friday took place in Congress the ceremony of celebration of the Independence Day. Only about one third of the Congressmen attended such an important event. It has been reported that Congress does not get the necessary attendance to pass those laws that are extremely important to them. The Valladares Law still does not have the opinion of the Committee of the Family, the Woman, and the Child and now there is the new proposed adoption law, that makes things more complicated, because now the committees have to study the new project.

It seems that the PGN does not desist of its intentions to take over adoptions. The new project of adoption law proposed to Congress by the PGN and presented in a seminar - where adoptions lawyers were not invited - hosted by MINUGUA gives the PGN the power to process and finalize adoptions. Since last April it is pending before the Constitutional Court a challenge against the appointment of the PGN as Central Authority. Even though it may be moot now that the Hague Convention is no longer valid, the legal issue is still valid: whether the PGN has the right to perform other functions than those granted to such institution by the Constitution, which are: as legal advisor and as consultant for the organs and entities of the State. The PGN constantly exceeds its powers, especially regarding children. The Constitutional Court ruling will prevent the PGN from attempting another hostile takeover of adoptions and will clarify for the PGN because for us they are
very clear the scope of its functions.

We are aware that the possibility of a new law being passed by Congress is always present. But we have reasons to believe that even though it could be possible, it is not probable that a new adoption law would be approved before January. And even after the new government takes office, the possibility is still remote. The new government will have to face too many problems. To add to them the problem of passing unconstitutional and financially burdensome laws would be a huge mistake.

The DOS also says: We continue to urge the government of Guatemala to process all adoption cases as expeditiously and fairly as possible to avoid unnecessary and unreasonable hardship on adopting families and children but such consideration does not extend to the families who are waiting for DNA tests of their adoptive children, since the BCIS is rejecting systematically the applications for DNA tests and without them, the PGN will not approve the cases.

c. PROBLEMS WITH THE DNA TESTS

We strongly believe that the little problems that we will be facing in the near future are an unavoidable part of the process of streamlining the PGN and the pre approval of visas and authorization of DNA tests by the US embassy.

When the high officers plan the way things are going to work, sometimes they do not take into account human factors. The DNA testing is something that should be reviewed. The purpose of the test is to verify the genetic match between the woman who is giving her consent to the adoption and the child that is being adopted. There is no need to take both samples at the same time and to make the mother hold the child on her lap to take a picture of them. For some of those mothers it is devastating to see their child and to let him/her go again. Especially when the child rejects the mother that has not seen before and is not familiar with. We know of a case where the picture was taken of the lawyer and the child because the child a toddler - absolutely refused to be held by her mother. Older children do not sit on their mothers lap, so we conclude that the picture of both together is not indispensable. We would like to be able to take the samples in separate
occasions because it would be less stressful for everybody without diminishing its effectiveness.

Although the lab process the samples in two weeks and get the necessary legalizations in another week, the amount of cases that will need DNA tests calls for more places where the samples could be taken. At the conference sponsored by the INS in March last year they offered to implement new labs to take DNA samples. Since the amount will exceed the capacity of the two authorized places, we suggest that other labs be authorized, at least on a temporary basis, to avoid unnecessary and unreasonable hardship on adopting families and children.

d. WHEN IS MY CHILD COMING HOME?

That is the recurring question of all the waiting families. If the PGN works on the cases in the fair and expeditiously way that the DOS mentions, we believe that many cases will be finished within the next couple of months. Those cases that have DNA pending will take a little longer. A good way to monitor the progress of your case is to urge both, the BCIS and the PGN to set up a website to keep track of the cases, supplying the information that sometimes is hard to get. We believe that it is not too much to ask. The websites could have limited access for each case, like the statement of a bank account. Only the adoption professionals and the adoptive parents would have access to that specific information and only to their cases. That information is already in the computers of the BCIS and the PGN, so it is not unreasonable to request them to share it. Maybe if the BCIS sets the example, the PGN would follow the lead and that is why we think that it is
something that you, the adoptive parents should work on.

The darkness is over. Be thrilled for that and remind yourself that now your adoption will be finalized because they can delay it, but they cant deny it.

Best regards,

Susana Luarca

Attorney at Law

Asociacin Defensores de la Adopcin

Guatemala City.

Posted by Kelly at 01:54 PM

September 16, 2003

PGN back to Normal!

(Posted with permission from Susana Luarca, Attorney at Law).

Dear Friends,

I am glad to inform you that the PGN is working normally. The director Merida - we still do not know whether he will stay, go back to Congress or go to jail - is signing non stop. Today, a long line of lawyers resubmitted all the cases that were rejected for non compliance with the Hague Convention, and the PGN lawyers are working on them. One of them said that they do not want problems, so they will give the required opinions.

At the US Embassy, many lawyers presented new cases. The only limit is that each lawyer may present only four cases, to give chance to the others to submit their documents too.

At the French Embassy things have not changed. They never stopped accepting cases, but it was in France where the adoptions of the children who were already there with their permanent families, were not admitted for registration. "But now that everything is back on track, the Ministry will admit the adoptions", told me the person I talked to.

The UK embassy is going back to the private system, where the adoptive parents dossier is given to the Guatemalan lawyer by the UK consul to work on the adoption.

If the PGN does not attempt any other stalling tactic, we can tell you that all children whose adoptions were rejected for Hague Convention reasons will not be home by Christmas, but in time to dress up for Halloween!

Best regards,


Susana Luarca, Attorney at Law

Posted by Kelly at 05:25 PM

September 12, 2003

FINALLY!!!!!

(Posted with permission from Susana Luarca, Attorney at Law).

THE CONSTITUTIONAL COURT RULING
was published today in El Diario de Centro Amrica, the official newspaper of the government. It will become effective tomorrow. We expect that with such publication,the gap opened by the illegal accession of Guatemala to the Hague Convention will be closed and everything will go back to normal. Although the ruling does not have a retroactive effect, the cases started between March 5th. and today, September 12, are protected by the ruling of the Court of Amparo. It will take a little more for the PGN to grasp the concept that everything that opposes the Constitution is null and void,and that they cannot base their rejections in a law that was ruled unconstitutional. The US embassy is poised to open again as soon as the rulling is effective.We expect that to happen sometime next week.

The director of the PGN has to sign all the back log before leaving his post. That means that many cases that were waiting for his signature will be released shortly.


Susana Luarca, Attorney at Law
Asociacin Defensores de la Adopcin,
Guatemala City.

Posted by Kelly at 01:33 PM

September 11, 2003

Thursday Update - Sept. 11, 2003

(Posted with permission from Susana Luarca, Attorney at Law).

Dear Friends,


The Hague Convention is no longer a treaty that Guatemala can accede to. Therefore, we will not discuss it again. For those of you who still have questions or doubts, I am sure that you can find in Google and Yahoo other sources of information. For us, the Hague Convention is a closed case. Those citizens of countries who are not jubilant because Guatemala is not a Hague member any more, must turn to their own authorities and remind them of the provisions of the Hague Convention that state that it only applies when the two countries are members of the convention, and assert your right to an intercountry adoption. On our side, we can talk to your diplomatic representatives to educate them about the reality of the Guatemalan adoption system., especially with the countries who objected to the accession of Guatemala to the Hague Convention (Germany, The Netherlands, Canada, Spain and United Kingdom).

Now, we will have to work on the reconstruction of what we still have: a very successful adoption legal system. Privately run, with the oversight of the PGN, with the home study of a court appointed Social Worker, with a mandatory DNA test and presided by a Notary, has all the legal safeguards to guaranty the transparency and legality of the process.

The fact that the notarial process it is not a judicial process, does not take away any of the legal safeguards, because the social worker is the same in both processes judicial and notarial - and the PGN has to give an opinion about the legality of the process on both types of cases. The only difference is the time that it takes for a Notary in his office with all his human and technical resources to process an adoption, compared to the time that it would take the same process in a court, of family with its limited resources, to do the same work. In some courts, the judge signs decrees only once a week. The notary signs every day, at any time. Something else must be pointed out in favor of the notarial process. If the PGN objects to the adoption, the notary has to present the case to a Family Court and it is the judge who rules whether the adoption fulfills the legal requirements. In a judicial adoption, the judge does not have someone else to review the case
after it is rejected by the PGN, because he can disregard the opinion of the PGN and approve the adoption. Bottom line, there are more safeguards and checking points in a notarial process than in a judicial process.

The biased and poisoned information that interested parties had spread about the Guatemalan adoptions is quickly published by the media. Our attempts to educate the world have to be a united front. There is not a perfect system in the world. We are not claiming that the Guatemalan system is perfect, but it is very good and Guatemala is one of the few countries that allow children to be adopted by foreigners without unrealistic requirements. The added benefit of the private care of the children while their adoptions are processed, assures that the children are cared and loved until they can join their permanent homes. All of this is what we have to inform the media and the authorities of other countries.

Right now is not the moment to try to introduce drastic changes in a system that does not require them, just to please the anti adoption forces. That does not mean that if the opportunity arises and a more balanced Congress is willing to pass an adoption law that will not restrict adoptions, we will not try to improve whatever needs to be improved. But we think that more than to change the adoption system, our efforts should be in favor of getting Congress to pass a law to rule the abandonment process. The Judges of Minors let the children languishing in orphanages, depriving them of a family, being more concerned of the rights of their irresponsible parents, than of the rights of the children to be raised and loved in a family. Abandonment decrees should not take very long, because a child either has caring parents or not. It does not take long to establish a situation of abandonment.

This is a brief summary of what is happening at:

A. THE PROCURADURIA GENERAL DE LA NACION (PGN).

Rudio Lecsn Merida Herrera, chief of section of the Procuradura, and responsible for holding hostages the adoption files for over six months, keeps refusing to give the required opinion on the cases of the lawyers protected by the amparo. He also is not signing cases that were started before March 5th., for no valid reason. The lawyers have filed petitions before the Court of Amapro, to order the prosecution of Attorney General Rosales, of Merida and of the PGN lawyers who signed the request for a certified copy of the ampro order, stating that there is no notification or legal resource pending. This previo is way out of line, because a court order must be obeyed or there are consequences. The consequences are that the Court of Amparo requested the PGN to inform why they were not giving the required opinions on the cases. They were given 48 hours beginning today If the PGN does not give a valid reason for their denial to give the opinions, the Court of
Amparo will have to give the order to start criminal procedures. It may still take a week or two to start the criminal procedures, although some lawyers who filed amparos first, are ahead in their requests, and some of them could be starting criminal procedures sooner.

It is difficult to estimate the time that it takes for a legal action to produce the desired results, especially in this situation that is the first time that we take legal action against the PGN and are trying to hold them accountable for not doing their work all these past months.

Rudio Lecasan Merida is also a Congressman for the FRG. The Attorney General gave him yesterday orders to go back to Congress, and somebody else will replace him at the PGN. This is very good, although we still do not know who will be taking his place. We expect this person to be someone who can handle the task of signing off all the cases, something that Merida found very difficult to do.

All the Post March 5th. cases that were rejected before will have to be resubmitted and we expect that the PGN lawyers will find that doing their work is a better alternative than facing criminal charges, now that Merida is no longer there to protect them.

B. THE CONSTITUTIONAL COURT

A copy of the ruling of the Constitutional Court was sent to all interested parties. No one objected anything. Therefore, the next step will be to send the order for publication to the Diario de Centro Amrica, the official newspaper. After long years of dealing with public offices, we have come to the conclusion that they do not have the same calendar that one has. For a bureaucrat, it seems that a week is like a day to us. For that reason we beg you to be patient, just a little bit more. The ruling will be published as soon as the clerk who has to draft a little decree finds the time to do it, and gets the signatures of the necessary persons and then, the space availability of the newspaper allows it. The ruling is long (51 pages) and has to be published entirely. The ruling will be effective the day after its publication.

Think of what would happened if the ruling would have been against the challenge and be thankful, as we all are, that we no longer have to worry about a central authority who blocked everything. Remain positive and rest assured that not a single day goes by without us urging the Constitutional Court to move faster the slow wheels of justice.

C. THE US EMBASSY

In very clear terms, the US Embassy has expressed that as soon as the Constitutional Court ruling is effective, they will reassume the DNA testing and the processing of new cases. The "life" of the Guatemalan documents has been extended to four months, instead of two months, which is great. New people is being brought to help to process all the new cases.

D. THE FAMILY COURTS

Although the Family Courts never stopped working cases, the Third Court is notoriously difficult. A long list of lawyers have complained against the judge, who only signs adoption files on Thursdays and advices the social workers to give priority to alimony and child support cases. The best way to handle this court is to withdraw the case and to complain to the Disciplinarian Board if it takes too long to give the file back.

IINDEPENDENCE DAY

This Monday 15 is our Independence Day. The Embassy of Guatemla in Wahington is sponsoring a picnic to celebrate. In its website you may find the information. In Gautemla it is a holiday, and the embassies are closed as well.



REGARDING NEW REFERRALS.

For those of you who have accepted a new referral, we present our heartfelt congratulations and deepest gratitude for keeping your faith in the Guatemalan adoption system. We will not let you down.

The coming elections have no effect on the adoption cases. It is not necessary to wait until the elections are over, to accept a referral. The new Congress may be pro or anti adoption, but the important and decisive factor are us, the Guatemalan lawyers who started this defense many years ago and will do our best effort to keep adoptions open.

Best regards,

Susana Luarca, Attorney at Law

Asociacin Defensores de la Adopcin,

Guatemala City.

Posted by Kelly at 04:09 PM

September 04, 2003

Thursday Update - Sept 4, 2003

(Posted with permission from Susana Luarca, Attorney at Law).
Dear Friends,

THE CONSTITUTIONAL COURT RULING

On August 13, 2003, the Constitutional Court of Guatemala upheld the challenges against the law passed by Congress on August 13, 2002, (Decreto 50-2002) which approved the accession of Guatemala to the Hague Convention.

The CC ruling is already signed and the interested parties were served today with a copy of such ruling. It will be official three days after its publication in El Diario de Centro Amrica, the official newspaper of the State of Guatemala. We trust that it will be done within the next two weeks.

Today was published in the Diario de Centro Amrica, an amendment to the Decreto 50-2002 , correcting the part that falsely stated that Guatemala signed the Hague Convention and stating that the convention is open to accession. This last minute attempt by Congress to correct the law, has no effects on the ruling, because even though the convention may be acceded to, Guatemala cannot do it.

THE EFFECTS OF THE RULING.

The first and most important effect of the declaration of unconstitutionality of the accession to the Hague Convention is that such convention will cease to have any effects. Although the effects of the Convention were never clear, it paralyzed the adoption system in Guatemala for over six months.

Some people have expressed their concerns because article 47 of the Hague Convention establishes that the convention still will be binding after the denouncement of a State party, for the following twelve months. Others are worried that the ruling will benefit only those cases started after the publication of the ruling, leaving in a vacuum the cases started after March 5th. and before the official publication.

Guatemala is not a member of the Hague Conference of International Private Law. Guatemala was not present at the 17th Conference in May 29, 1993; its representatives never signed the Hague Convention and never ratified the convention. Now the Constitutional Court has ruled that the accession is not within the powers of the President of Guatemala. Based on all those reasons, we sustain that Guatemala cannot be bound by an international treaty that it never was a party to. But even if the Hague Conference insists in regarding Guatemala as a member to the Hague Convention for Inter country Adoptions for another year, that cannot affect anything in Guatemala. The Hague Convention IS NOT a law of the country because its accession violates our Constitution.

The other concern, that the PGN will reject all the adoption cases started between March 5th. and the date that the ruling is official, is also groundless. Three days after the ruling is published, all cases will have to be processed by the PGN, regardless of their starting dates, or the dates of the powers of attorney. The notarial process has always been valid. The PGN cannot base the rejection of the adoption cases on a convention that Guatemala is not a party to. It is be reinforced with the orders of the Court of Amparo. The PGN has chosen to disregard such orders thus far. This has forced the adoption lawyers to follow the necessary steps to start criminal procedures against the PGN lawyers.

Although not as quickly as some would have liked it, but the time will come when the warrants for the arrest of the first PGN lawyers are issued. Facing this, the rest of the PGN lawyers may take two positions: to systematically reject all adoption files, in defiance of the amparo, or to respect the laws of Guatemala, by giving an opinion about the legality of the adoption processes in the three day time that the law states. We expect that they will come to their senses and that they will abide by the laws of our country. It would be most unfortunate if they do not, because there is so much that they can loose: their professions, their jobs and their freedom.

THE PRE MARCH 5TH CASES

We are not saying that things will go back to the way they were before March 5th., because even before the Hague Convention crisis, things were not right at the PGN; there are still many cases that were started before that date, that are still delayed at the PGN . Although each case is being delayed for a different reason, a class action amparo could be filed by the lawyers of those cases. The grounds for the amparo would be that the PGN is requesting more requisites or documents than what the law states. That will move ahead all those cases that are being delayed for no valid legal reason. If your case is in that situation, talk to your lawyer about an amparo.

The law establishes that the person who wants to adopt a child must provide:

a. the birth certificate of the child,

b. the marriage certificate ( if the adoptive parents are a couple, which excludes adoption by two people living together),

c. deposition of two witnesses about the good habits, moral solvency and economical capacity of the adoptive parents to fulfill their duties as such, and

d. a home study recommending the adoption.

All the other documents that you gathered, are what the PGN has been demanding over the years without a legal right to do so. Also, a great majority of the cases are rejected by the PGN for reasons that have no legal grounds. The adoption lawyers have been trying to accommodate all the requests of the PGN, to prove that they are not hiding anything, in an effort to maintain the transparency of the process. We were who suggested to the PGN that the DNA tests were made mandatory in all relinquishment cases. We present all the documents of the birth mother and request new documents of the adoptive parents, because one day any of the PGN lawyers decides that the documents on file are not what they want. Every rejection sets back the file for at least two weeks, sometimes much more and deprives a child of a family for as long as it takes to get the file approved. The demands of the PGN change from one lawyer to another, from one day to another, creating uncertainty
that not only is illegal, but causes pain and suffering to all of those who wait for the finalization of the adoption. That is something that must be addressed with the proper legal actions.

Another option when the PGN rejects an adoption, is to present the case to a Family Judge and to let the judge to decide on the merits of the case. We know of a handful of cases that after being rejected by the PGN, were approved by the Family Judges. The PGN only gives an opinion which is not binding. The PGN does not have the last word in the adoption process, but the judicial option is a lengthy one.

The US embassy has stated that they will start accepting new cases as soon as the Constitutional Court ruling is official. Other countries will have to be contacted directly, to dispel the wrong ideas they might have of adoptions in Guatemala, that are preventing them from letting their citizens to adopt children from Guatemala.

We understand that the US embassy will keep using Lab Corp to do the DNA tests. The lab of Life Codes was removed from the PGN, but is still open in its usual address.

NEW ADOPTION LAW

The last and newest project of adoption law was just a desperate attempt of UNICEF and the PGN to regain control over adoptions, after the Constitutional Court ruling, but it never has been a real threat. The elections campaigns are taking most of the time of the Congressmen and the PGN is very busy right now, trying to find the way to justify the embezzlement of several thousands of millions of dollars of the funds of the Social Security, in order to exonerate their fellows FRG congressmen who are in jail for that reason.

NEW REFERRALS

If you want to adopt a newborn baby in three months, we suggest that you either wait until things go back on track, or to switch to another country. But if you are patient and have realistic expectations, taking into account that the PGN is not very willing to collaborate right now, you may accept a referral as soon as you feel comfortable with your decision. For some people, the CC ruling is enough, for others it is necessary to hold in their hands the official newspaper. The good part of starting an adoption now, is that by the time your file exits Family Court, the situation at the PGN will be as it should be. We expect that it will happen in a couple of months, or less.

I have been asked if the children whose adoptions are already started are going home for the Holidays. I say that it is very possible. If the PGN gets to work seriously, they could review the delayed cases in less than a month and those children would go home way before the end of the year.

Our goal is to get the files back from the PGN in three days, and that their objections are based on legal grounds. We do not regard that as something unreachable. It will not happen overnight, we are aware of that, but eventually it will. We are committed to work to make adoption as painless and as short as possible, without sacrificing any of the necessary safeguards to protect all the parties involved in an international adoption. Adoption is the process where long should not mean legal. An adoption process can be legal, trustworthy, ethical and very short.

Best regards,

Susana Luarca,

Attorney at Law,

Asociacin Defensores de la Adopcin. Guatemala City

Posted by Kelly at 01:53 PM

August 28, 2003

Thursday Update - August 28, 2003

(Posted with permission from Susana Luarca, Attorney at Law).

Dear Friends,

The ruling of the Constitutional Court is something that changes dramatically the situation of adoptions in Guatemala. To reverse the detrimental effects of the Hague Convention in a country of origin is a huge breakthrough. But there are some people who do not see it that way. I will analyze their allegations as follows:

UNICEF

This United Nations entity, is not only one of the most respected and venerable institutions for the help of the children, but also the strongest opponent to international adoptions. Under the pretense of respecting the rights of the children, UNICEF tries very hard to limit adoptions of poor children of underdeveloped countries, by citizens of countries of the First World. We fail to see how the rights of the children are respected by denying them the family that will help them to develop to their full potential.

In these times of global movements, to prevent a child to cross the territorial limits of a country to go to another country where the child will find love, family and a better life is not only cruel, but opposite to all what UNICEF should stand for. However, UNICEF has succeeded in doing so in many countries and has many supporters. We defeated UNICEF in Guatemala, which sets an example to the other countries that have yielded to its pressure, to stand up and fight back.

MINUGUA

When Guatemala signed the peace with the guerrilla, the United Nations appointed a UN commission to verify the fulfillment of the Peace Agreements signed between the Government of Guatemala and the URNG (Unin Revolucionaria Nacional de Guatemala, the leftist guerrilla movement that caused the bloody conflict during 36 years). Its name is MINUGUA. That was in l996. We are in peace now and MINUGUA is still here, although there is hope that this year its mandate will be terminated.

On August 26, MINUGUA hosted a seven hour seminar at a hotel in Guatemala City, to discuss a new project of adoption law. As we reported before, the Valladares Law does not follow the Hague Convention to the letter, because it eliminates the PGN as Central Authority and therefore, the PGN opposes it. Not a single adoption lawyer was invited.

MINUGUA and the anti-adoption organizations praised highly the new proposed law, but the congressmen of the other political parties thought that it was not serious to present a different project of law, after they have been studying the Valladares Law. The conclusion was that the adoption law should be addressed by the new Congress, next year. The newpapers reported that the seminar lasted only four hours.

At the seminar, the FRG Congressmen (do not forget that both, the Attorney General and the director do the PGN, are also FRG Congressmen) expressed their concern for the situation of the adoptions, which made them to approve the Hague Convention last year, said Congressman Jorge Arvalo Valds. He also stated that the subject of adoptions in Guatemala, legally and legislatively has collapsed; for the last ten years the international community has called the attention over the necessity to update the laws regarding that institution. In May of 2002, the FRG supported the approval of the Hague Convention . However, - added the congressman Arevalo Valds -, groups of interest filed motions against the new legislation about adoptions and filed legal actions, to the degree that currently, the Constitutional Court suspended the international treaty about adoptions. He also expressed that to pass a new Law of Adoptions is binding for the State of Guatemala, as
it is stated in the Peace Agreements, to give protection to the childhood.

MINUGUA has spread the false information that adoptions fall within the scope of their mandate and that a new Adoptions Law must be passed by Congress, in order to fulfill the Peace Agreements.

Nothing farther from the truth. The Peace Agreements regarding children, established provisions for the welfare of the children, for education, belated birth recording and justice for the children. Nothing in the Peace Agreements mentions adoptions .

PROCURADURIA GENERAL DE LA NACION (PGN)

The PGN had ample time to implement the Hague Convention. When the Central Authority stated that the adoption files should be presented to the CA, many lawyers did it, and even presented the birth mothers to humiliating interviews conducted by heartless social workers and psychologists. Yes, we insist that the PGN had a fair chance to implement the Hague Convention and to make it work. If it did not, it was not for lack of opportunity.

Now, with the lack of maturity of a toddler with a tantrum, the PGN lawyers are refusing to obey the orders of the Court of Amparo, risking their jobs, their professions and their freedom. The adoption lawyers have warned them that if they do not process the cases, criminal complaints will be presented. The PGN people is set in disregarding the law and the court orders. It will be their loss, because justice and the law are on our side. It is just a matter of time before they fully comprehend that what they are doing is illegal and unfair, and that the big losers will be them.

THE DOOMSAYERS

Some people expressed their concern that the success against the Hague Convention is only temporary. That another law will be passed, worse and more restrictive than the Hague Convention and then, the lawyers will not be able to fight it. That it would have been better to try to live with the Hague, no to oppose it.

In a way they are right, anything can happen. Congress may pass that feared law, or the lawyers could find that it is actually more rewarding to defend criminals than handling adoptions, or the lawyers could give in to the pressure of UNICEF to eliminate adoptions. Possible? Yes. Probable? Not a chance! Because we know that what we are doing is the right thing to do for the children. And that will keep us going.

WHAT WE LEARNED

What we learned of the anti-adoption forces is that they are like the waves of the sea. We cannot stop them from coming, but we can learn how to handle them. With the Hague Convention we learned that the State is not to be trusted to handle adoptions and also, that no matter how strong our opponent is, we can fight it and win.

But most of all, we learned that we need support from everybody. Without planning it, we formed a network that went beyond frontiers and languages, and bound us together to fight for the same goal: to keep adoptions open in Guatemala.

WHAT STILL NEEDS TO BE DONE

We will emerge of this catastrophe, not only victorious but stronger. As soon as we get the PGN to admit that their role is not the ringleader of adoptions, but the entity of the State that oversees the legality of the notarial process of adoption, we will deal with the Family Court part. There is a rumor that some social workers do not release the home studies unless the DNA test results are presented to them. That rumor was not confirmed, but we do have information that some social workers delay for months the home studies, arguing that the Judge orders them to give immediate attention to the child support cases. We will file the proper legal actions to streamline the Family Court part.

The US Embassy has expressed that as soon as they see in writing the ruling of the Constitutional Court, they will start accepting new cases. The last information is that the Court is still gathering signatures. The CC is formed by five magistrates who have permanent offices at the Court and five who do not. For Constitutional challenges, the Court needs seven magistrates. It takes longer to get the signatures of the ones who do not have offices at the CC. We expect to have all the signatures in place very soon. After that, the publication will depend on the space availability on the official newspaper, which is limited. But the important thing is that the Hague will no longer be an obstacle for Guatemalan adoptions.

The embassies of other countries may require a personal visit and more information. We are working on an information packet for those Hague countries that objected to Guatemala being Hague, but will not deal with Guatemala unless it becomes Hague, - as confusing as it may sound - to present to them as soon as the ruling is published.

We wish we could give an explanation to each of you of why is that your Pre March 5th case is still in PGN. But we cannot do that. The amparos for the post March 5th, will have no impact on such cases. Ask your lawyers and discuss with them the different legal actions to move your cases ahead.

Last year we had a difficult situation with the passports. Parents who adopted then could tell you how frustrating it was to be the parents to their child and not to be able to bring him/her home. Back then, it took three or more months to get the passports, because one bureaucrat decided that the way to prevent illegal adoptions was to delay them for as long as possible. A constitutional challenge took care of that. Now, you take for granted that if the birth certificate is obtained in the morning, in the afternoon your child will have a passport. The same will happen with the PGN. What now is taking months, in the future will take days. Hang in there. It will not take long before that is a reality.

Best regards,

Susana Luarca

Attorney at Law, Asociacin Defensores de la Adopcin

Posted by Kelly at 09:10 AM

August 26, 2003

Last Thursday's Update (Aug 21st)

(Posted with permission from Susana Luarca, Attorney at Law).

Dear Friends,

Last Thursday at the PGN was very somber. The PGN lawyers sat at their desks and read carefully the newspaper article about the ruling of the Constitutional challenge. Although Siglo Veintiuno always has been against international adoptions and the article was biased , it conveyed the message that will set free hundreds of children, to join their permanent families. At mid morning, all the PGN lawyers had a meeting to discuss the consequences of the CC sentence and the amparos. It took them a couple of days to begin to distribute among the lawyers, the cases that were piling up at the reception office and at the Central Authority.

Until now, not s single file started after March 5th has been approved, except for a few that were approved by mistake. The Court of Amparo has received the petitions to initiate criminal process against Luis Rosales, the attorney general. He claims that the amparos should have been filed against the lawyers of the section that should have given the opinion, that is to say, Rudio Lecsn Mrida and the assistant lawyers. Which is not a bad idea that we will take seriously, because Merida is who has been holding up the cases for no reason, refusing to sign the opinions and supporting the illegal previos of the other attorneys. We have learned that Merida instructed the lawyers who got the after March 5th cases of the lawyers protected by the amparos, to request a certified copy of the ruling of the Court of Amparo stating that no legal resources were pending knowing very well that the appeal of the PGN before the CC is still unresolved, but that it does not suspend the order or the Court of Amparo.

As soon as the CC sentence on the challenge is official, Merida will not have more excuses to delay the cases. It is normal for the Constitutional Court to take a while to collect all the signatures of the magistrates in a sentence. There is no need to worry that the ruling may be changed. The legal resources filed against the Rios Montt decision is keeping them busy, and that could delay things a little. But it is just a matter of time. Now that we know the outcome, the waiting is less hard. As soon as a copy of the sentence is released, it will be translated and we will post it. After the publication in the official newspaper, three days later the sentence of the Constitutional Court becomes official and things will go back to the way they were before March 5th.

The Constitutional Court declared that Guatemala cannot accede to any international treaty. That ruling closed the door to the Hague Convention permanently. Those citizens of countries who do not share our happiness for this ruling, because their countries will not accept children of Guatemala until the Hague Convention is properly implemented should try to uncover what lies beneath their countries authorities to take such an uncompromising position. Of the five countries who objected to the accession of Guatemala to the Hague Convention, Germany, Canada, Australia and Spain were not accepting adoptions from Guatemala even before the accession. The enormous pressure of UNICEF over the countries who are parties to the Hague Convention can be analyzed in the Report and Conclusion of the Special Commission on the Practical Operation of the Hague Convention of 29 May 1993 on Protection of Children and Cooperation in respect of Inter Country Adoption 28 Nov 1 Dec 2000 pages 25 through 28. (http://www.adopt.dk/tal_publ/udland/haag.pdf)

It states how UNICEF brought the ILPEC report to the meeting as evidence of the way adoptions are being done in Guatemala and urged the receiving countries to close their doors to the market of Guatemalan children. Guatemalan adoptions were on trial at that meeting, and were condemned and sentenced without even a Guatemalan authority being present.

If you belong to a country that followed UNICEFs orders, get in touch with us. We want Guatemalan children to find homes worldwide and refuse to give up on some countries, just because their authorities are being mislead by the strongest anti adoption entity, also known as UNICEF. Together we can find a way to prove that Guatemalan adoptions are under attack because they are successful and that each child who is adopted is a child who will not become one more of the "children of the street".

Regarding the Valladares law, it is highly unlikely that Congress will pass a law that is a text book case of grounds for constitutional challenges. The opposing political parties are keeping score of all the laws approved by the FRG that later have been ruled unconstitutional and that will be used against the FRG at the elections in November, when the Guatemalans will vote for all authorities the same day. The FRG does not want to increase the number of illegal laws. The ADA is poised to file an amparo supported by over two hundred lawyers in case any law that restricts adoptions is passed by Congress overnight and by surprise, and to file the necessary challenges. As we have said, all these battles are making us stronger and more proactive.

Regarding the cases before March 5th. the amparos already filed do not apply to them. The reason why some of those cases are being delayed has to be analyzed individually. In some cases it would be necessary to file an amparo. If several cases are being held up for no reason, a collective amparo could be filed. We understand that there is a list of pre March 5th cases and if there is not, one should be formed. A collective amparo would be stronger and less expensive.

A question that everybody asks, is if it is safe to accept referrals now. The answer is yes, if you have patience. Considering the backlog at the PGN and at the US embassy, it will take a while to process all those cases. But if you accept a referral now, by the time the hold up is over, your case will be coming out of Family Court. We cannot promise that you will celebrate the Holidays in December with your child, but we can assure you that your adoption will be finalized within the next months

Thank you to those who have personally expressed their gratitude for the drafting of the challenge and its favorable ruling. . Your comments are appreciated and encouraging.

Best regards,

Susana Luarca

Attorney at Law, Asociacin Defensores de la Adopcin

Guatemala City.

Posted by Kelly at 12:46 PM

August 05, 2003

Amparos Upheld by Court of Appeals!

(Posted with permission from Susana Luarca, Attorney at Law).

THE COURT OF AMPARO GRANTED AGAIN THE SUSPENSION OF THE HAGUE CONVENTION

The Amparo action filed by ninety seven lawyers was upheld by the First Court of Appeals, acting as Court of Amparo, who ruled that the Hague Convention does not apply to the petitioners because it violates their constitutional rights.

Based on that ruling, all the adoption files of those lawyers will have to be processed by the PGN according to the Guatemalan laws and with total disregard to the Hague Convention. The PGN has three days to do so. If it fails to give the required opinion, the lawyers may accuse the PGN of contempt, and criminal accusations may be brought against the PGN officers.

The ruling of the Court of Amparo is another step to restore the order after the chaos and suspension brought to intercountry adoptions by the Hague Convention, five months ago. We are very confident that the law and order will prevail and the children that have been waiting will join their adoptive families very soon.

Today, Prensa Libre reports the visit of four Congressmen of the Committee of Foreign Relations of the United States Congress, who came to talk about politics and economics. They are Cass Ballenger (North Carolina), Kevin Brady(Texas) Marsha Blackburn ( Tennessee) and Jerry Weller (Illinois).

If only we could talk to them!

Best regards,

Susana Luarca, Attorney at Law,

Asociacin Defensores de la Adopcin

Posted by Kelly at 06:30 PM

August 04, 2003

Washington DC Update

(Posted with permission from Susana Luarca, Attorney at Law).

Dear Friends,

I just came back from Washington D.C. where Hannah Wallace and I, and two adoptive parents who work in that city, one as a journalist and the other as a lobbyist, had interviews with the offices of the Committee on Foreign Relations of the United States Senate, of the Senators Debbie Stabenow (Michigan) and Don Nickles (Oklahoma) and of Congressman Bob Ney (Ohio). My impression is that the people we talked with, were receptive of the situation, but that it will help if there is a deluge of letters, especially from families of their states.

The points I stressed with each of them were: a) the need of the United States to assert its Third State Status, as it is stated in the Vienna Convention of 1969, in order to remove from the scope of the Hague Convention for Inter Country Adoptions, the adoptions of Guatemalan children by US citizens, as a way to mitigate the devastating consequences of the ill applied Hague Convention by the PGN, and c) the need that the US BCIS admits and process documents for the pre-approval of visas submitted by notaries, since the law that norms the notarial process is very valid despite what the PGN says- and that the BCIS continues monitoring the DNA test as before, since this is one of the requirements for the pre approval of visas.

In your letters please refrain from using the expressions after March. 5th.,after July 1st. transition cases pipleline grandfather, etc., because all those expressions give the false impression that there was a change in the legislation, when in fact there was not. The Hague Convention does not have the power to alter anything. An appointment by the president of Guatemala does not overrule the Constitution, and that is exactly what the PGN is trying to make everybody to believe. The Central Authority does not have the power to do anything, unless new legislation is passed by Congress and even then, that new legislation has to be congruent with the Constitution. Everything that opposes the Constitution is null and void.

I really hope that your letters keep pouring in.

I will let Hannah to report about the interviews and I will inform about the situation in Guatemala:

1. THE AMPAROS

Amparo is a legal resource to protect the petitioner from any violation to his/her rights, when there is no other legal resource available for that specific situation. The position taken by the PGN constitutes grounds for amparo for the following reasons:

a.To make the PGN to apply to adoptions the same legislation that is still valid. The Hague Convention is not a Human Rights treaty ratified by Guatemala, as stated in Article 46 of the Constitution, so it does not have the power to supersede the existing legislation regarding adoptions. The allegations of the PGN that the adoption files files must comply with the Hague Convention lack legal basis and constitute an abuse of power.

b. The notarial process and the legal practice of the lawyers with regard to adoptions cannot be eliminated because it is forbidden to do so in articles 81 and 87 of the Constitution. The allegations of the PGN that all parties must agree to do a notarial process instead of a judicial process, lack legal basis because the only parties in an adoption process are the adoptive parents and the person who has the parental custody or the legal custody of the child being adopted. The PGN is not a party to the process.

c. The PGN or the Central Authority cannot pass laws, because that power is exclusive of Congress. Any kind of rule or regulation passed by the executive branch must be in compliance with the existing legislation and above all, with the Constitution. Whatever opposes the Constitution is null and void.

2. THE PROCESS OF AN AMPARO:

The amparo petition is filed before the proper court, which is determined by the Amparo, Habeas Corpus and Constitucionalidad

Law, according to the position of the person against whom the amparo is filed. In the case of the State Attorney, the amparo must be filed before the Court of Appeals. The Court while presiding over the amparo proceedings is called Court of Amparo,

Once the amparo petition is filed, the Court orders the authority whose acts have caused the petition, to inform about the acts stated in the complaint by the petitioner. Based on the evidence at hand, and to avoid causing further damage, the court may order the suspension of the law or of the act(s) denounced in the amparo, until the petition is ruled on the matter. That temporary suspension may be appealed. All appeals on amparos are ruled by the Constitutional Court. The temporary suspension also may be revoked at any time and/or reinstated again if the Court deems it necessary. That ruling could also be appealed. If the person who is ordered to suspend the actions keepd doing them, the court must order that criminal procedure should initiated against such person.

The judges must give immediate priority to the amparo. If a third party might be affected by the result, the court has to notify such party of the amparo and hear what he/she ha to say about it. If it necessary, there could be an eight day period, for the parties to present their evidence. After the evidence is presented, the court hears the parties for a 48 hours period. If evidence is not needed when it is a matter of law, not of fact the court must rule within three days. There could be a public hearing if one of the parties requests it. The final ruling can be appealed and against the ruling on appeal of the Constitutional Court, there is no other legal resource.

3. EFFECTS OF THE AMPARO:

a) To suspend, with regard to the petitioner, the law, the ruling, the resolution or the act, and to restore the affected legal situation or to stop the illegal measure taken by the authority.

b) To set a reasonable period of time to stop the delay, if the case were of a delay in ruling, or to do an act that was ordered beforehand.

Failure to comply with the final ruling of the Court of Amparo

constitutes criminal offense.



4.THE AMPAROS ALREADY FILED.

There are several amparos pending resolution, against the illegal and unspeakable behavior of the PGN. In some of them,the temporary suspension of the Hague Convention has been already granted.

The reaction of the PGN regarding the amparos that were granted by the Court of Amparos has been to disregard the order to proceed with the petitioners cases, maintaining their customary attitude of we are higher than the law. The situation is worsening for the PGN authorities because the lawyers have requested the Court of Amparo to initiate criminal procedures against them. This week the Court of Amparo should rule on such petition. Bear in mid that the time periods start running until all parties are notified of the ruling, and then, a proper petition must be filed to continue the process.

There are other amparos filed by other lawyers, and even though the PGN filed an appeal in every case, they were rejected by the Court of Amparo, because the arguments were totally unrelated to the petition and because the PGN made a mistake on the dates of the rulings, so the Amparo Court stated that it never ruled something regarding that amparo on such specific date.

5. SHOULD YOU FILE AN AMPARO?

In case you wonder if your case needs an amparo to move forward, the answer is yes. For the last five months, the PGN has failed to give an opinion on the adoption files, arguing lack of compliance with the Hague Convention. Recently, the Central Authority started returning all files that only gathered dust at their offices, with a previo: In conformity with the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, it belongs to the Central Authority to obtain the requisites detailed in article 4 of such convention, therefore, this filed must be according to what such international instrument establishes. That resolution constitutes grounds for an amparo aside from the fact that the Central Authority withheld the files for months, under false promises that adoptions were not suspended.

This week we expect to have the ruling on the Amparo filed by 83 lawyers. If the Court of Amparo grants the suspension of the Hague Convention to those lawyers, their cases either will be processed by the PGN or the lawyers will request the Court of Amparo to start criminal procedure against the PGN lawyers.

If the lawyer who is handling your case has not filed an amparo, your case will not be processed, unless the PGN changes its current position. Instruct your lawyer to contact us. We are organizing another sort of class action amparo suit.

6. THE CRIMINAL PROCEDURE.

The attitude taken by the PGN make us believe that criminal procedures must be initiated against the PGN, as the only way the PGN lawyers will understand that what they have been doing to adoptions is wrong, and that by doing so, they are jeopardizing their jobs, their profession (a conviction brings automatic disbarment) and their freedom. The amparos are the first step.

7. RUMORS AND INFORMATION.

Last week there were rumors of the following:

a. Family courts not accepting more adoption files. This is not true.

b. The director of Central Authority quitting her post Elizabeth Hernndez de Larios, the director of the Central Authority is still in that position, although the previos rejecting the files that were presented to the Central Authority were signed by Luis Fernando de Paz Gonzlez and Rudio Lecsn Mrida Herrera, director of the Procuradura section of the PGN.

c. The Constitutional Court ruling on the Hague Convention accession. The CC has not ruled yet, and even when it does, the ruling will not be effective immediately, since it has to be signed by the seven magistrates of the court that sometimes takes a while - and then published in the Official Newspaper, being effective until such publication is made. We are still hopeful that the outcome will be in favor of the children, because first and last, it is them, who are being hit by the current situation.

Be assured that we are aware of your need to be informed. Any news will be posted right away. Before spreading a rumor, feel free to contact me, to verify the information. Remain calmed, but active, writing letters to those people who can make thing happen. Talk to anybody who would listen. Use the six-degrees of separation to contact people who could help. Remember that it is the PGN who is causing all this disruption, not your lawyer neither your adoption agency, so dont be hard on them. Crisis may be a disaster or an opportunity, depending on how you approach it.

Best regards,

Susana Luarca,

Attorney at Law

Asociacin Defensores de la Adopcin

Posted by Kelly at 08:21 AM

Washington DC Update

(Posted with permission from Susana Luarca, Attorney at Law).

Dear Friends,

I just came back from Washington D.C. where Hannah Wallace and I, and two adoptive parents who work in that city, one as a journalist and the other as a lobbyist, had interviews with the offices of the Committee on Foreign Relations of the United States Senate, of the Senators Debbie Stabenow (Michigan) and Don Nickles (Oklahoma) and of Congressman Bob Ney (Ohio). My impression is that the people we talked with, were receptive of the situation, but that it will help if there is a deluge of letters, especially from families of their states.

The points I stressed with each of them were: a) the need of the United States to assert its Third State Status, as it is stated in the Vienna Convention of 1969, in order to remove from the scope of the Hague Convention for Inter Country Adoptions, the adoptions of Guatemalan children by US citizens, as a way to mitigate the devastating consequences of the ill applied Hague Convention by the PGN, and c) the need that the US BCIS admits and process documents for the pre-approval of visas submitted by notaries, since the law that norms the notarial process is very valid despite what the PGN says- and that the BCIS continues monitoring the DNA test as before, since this is one of the requirements for the pre approval of visas.

In your letters please refrain from using the expressions after March. 5th.,after July 1st. transition cases pipleline grandfather, etc., because all those expressions give the false impression that there was a change in the legislation, when in fact there was not. The Hague Convention does not have the power to alter anything. An appointment by the president of Guatemala does not overrule the Constitution, and that is exactly what the PGN is trying to make everybody to believe. The Central Authority does not have the power to do anything, unless new legislation is passed by Congress and even then, that new legislation has to be congruent with the Constitution. Everything that opposes the Constitution is null and void.

I really hope that your letters keep pouring in.

I will let Hannah to report about the interviews and I will inform about the situation in Guatemala:

1. THE AMPAROS

Amparo is a legal resource to protect the petitioner from any violation to his/her rights, when there is no other legal resource available for that specific situation. The position taken by the PGN constitutes grounds for amparo for the following reasons:

a.To make the PGN to apply to adoptions the same legislation that is still valid. The Hague Convention is not a Human Rights treaty ratified by Guatemala, as stated in Article 46 of the Constitution, so it does not have the power to supersede the existing legislation regarding adoptions. The allegations of the PGN that the adoption files files must comply with the Hague Convention lack legal basis and constitute an abuse of power.

b. The notarial process and the legal practice of the lawyers with regard to adoptions cannot be eliminated because it is forbidden to do so in articles 81 and 87 of the Constitution. The allegations of the PGN that all parties must agree to do a notarial process instead of a judicial process, lack legal basis because the only parties in an adoption process are the adoptive parents and the person who has the parental custody or the legal custody of the child being adopted. The PGN is not a party to the process.

c. The PGN or the Central Authority cannot pass laws, because that power is exclusive of Congress. Any kind of rule or regulation passed by the executive branch must be in compliance with the existing legislation and above all, with the Constitution. Whatever opposes the Constitution is null and void.

2. THE PROCESS OF AN AMPARO:

The amparo petition is filed before the proper court, which is determined by the Amparo, Habeas Corpus and Constitucionalidad

Law, according to the position of the person against whom the amparo is filed. In the case of the State Attorney, the amparo must be filed before the Court of Appeals. The Court while presiding over the amparo proceedings is called Court of Amparo,

Once the amparo petition is filed, the Court orders the authority whose acts have caused the petition, to inform about the acts stated in the complaint by the petitioner. Based on the evidence at hand, and to avoid causing further damage, the court may order the suspension of the law or of the act(s) denounced in the amparo, until the petition is ruled on the matter. That temporary suspension may be appealed. All appeals on amparos are ruled by the Constitutional Court. The temporary suspension also may be revoked at any time and/or reinstated again if the Court deems it necessary. That ruling could also be appealed. If the person who is ordered to suspend the actions keepd doing them, the court must order that criminal procedure should initiated against such person.

The judges must give immediate priority to the amparo. If a third party might be affected by the result, the court has to notify such party of the amparo and hear what he/she ha to say about it. If it necessary, there could be an eight day period, for the parties to present their evidence. After the evidence is presented, the court hears the parties for a 48 hours period. If evidence is not needed when it is a matter of law, not of fact the court must rule within three days. There could be a public hearing if one of the parties requests it. The final ruling can be appealed and against the ruling on appeal of the Constitutional Court, there is no other legal resource.

3. EFFECTS OF THE AMPARO:

a) To suspend, with regard to the petitioner, the law, the ruling, the resolution or the act, and to restore the affected legal situation or to stop the illegal measure taken by the authority.

b) To set a reasonable period of time to stop the delay, if the case were of a delay in ruling, or to do an act that was ordered beforehand.

Failure to comply with the final ruling of the Court of Amparo

constitutes criminal offense.



4.THE AMPAROS ALREADY FILED.

There are several amparos pending resolution, against the illegal and unspeakable behavior of the PGN. In some of them,the temporary suspension of the Hague Convention has been already granted.

The reaction of the PGN regarding the amparos that were granted by the Court of Amparos has been to disregard the order to proceed with the petitioners cases, maintaining their customary attitude of we are higher than the law. The situation is worsening for the PGN authorities because the lawyers have requested the Court of Amparo to initiate criminal procedures against them. This week the Court of Amparo should rule on such petition. Bear in mid that the time periods start running until all parties are notified of the ruling, and then, a proper petition must be filed to continue the process.

There are other amparos filed by other lawyers, and even though the PGN filed an appeal in every case, they were rejected by the Court of Amparo, because the arguments were totally unrelated to the petition and because the PGN made a mistake on the dates of the rulings, so the Amparo Court stated that it never ruled something regarding that amparo on such specific date.

5. SHOULD YOU FILE AN AMPARO?

In case you wonder if your case needs an amparo to move forward, the answer is yes. For the last five months, the PGN has failed to give an opinion on the adoption files, arguing lack of compliance with the Hague Convention. Recently, the Central Authority started returning all files that only gathered dust at their offices, with a previo: In conformity with the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, it belongs to the Central Authority to obtain the requisites detailed in article 4 of such convention, therefore, this filed must be according to what such international instrument establishes. That resolution constitutes grounds for an amparo aside from the fact that the Central Authority withheld the files for months, under false promises that adoptions were not suspended.

This week we expect to have the ruling on the Amparo filed by 83 lawyers. If the Court of Amparo grants the suspension of the Hague Convention to those lawyers, their cases either will be processed by the PGN or the lawyers will request the Court of Amparo to start criminal procedure against the PGN lawyers.

If the lawyer who is handling your case has not filed an amparo, your case will not be processed, unless the PGN changes its current position. Instruct your lawyer to contact us. We are organizing another sort of class action amparo suit.

6. THE CRIMINAL PROCEDURE.

The attitude taken by the PGN make us believe that criminal procedures must be initiated against the PGN, as the only way the PGN lawyers will understand that what they have been doing to adoptions is wrong, and that by doing so, they are jeopardizing their jobs, their profession (a conviction brings automatic disbarment) and their freedom. The amparos are the first step.

7. RUMORS AND INFORMATION.

Last week there were rumors of the following:

a. Family courts not accepting more adoption files. This is not true.

b. The director of Central Authority quitting her post Elizabeth Hernndez de Larios, the director of the Central Authority is still in that position, although the previos rejecting the files that were presented to the Central Authority were signed by Luis Fernando de Paz Gonzlez and Rudio Lecsn Mrida Herrera, director of the Procuradura section of the PGN.

c. The Constitutional Court ruling on the Hague Convention accession. The CC has not ruled yet, and even when it does, the ruling will not be effective immediately, since it has to be signed by the seven magistrates of the court that sometimes takes a while - and then published in the Official Newspaper, being effective until such publication is made. We are still hopeful that the outcome will be in favor of the children, because first and last, it is them, who are being hit by the current situation.

Be assured that we are aware of your need to be informed. Any news will be posted right away. Before spreading a rumor, feel free to contact me, to verify the information. Remain calmed, but active, writing letters to those people who can make thing happen. Talk to anybody who would listen. Use the six-degrees of separation to contact people who could help. Remember that it is the PGN who is causing all this disruption, not your lawyer neither your adoption agency, so dont be hard on them. Crisis may be a disaster or an opportunity, depending on how you approach it.

Best regards,

Susana Luarca,

Attorney at Law

Asociacin Defensores de la Adopcin

Posted by Kelly at 08:21 AM

July 10, 2003

7/11 Update from Asociacion Defensores de la Adopcion

(Posted with permission from Susana Luarca, Attorney at Law).

July 11, 2003

Dear Friends:

In view of the announcements issued by the Central Authority, we must express:

1. The Hague Convention is an international treaty, not an ordinary law of the country. Therefore, it creates obligations for the State, not for the individuals who live in such State. The obligations acquired by Guatemala with its accession to the Hague Convention are to implement changes in the legislation regarding adoptions, following the guidelines established by the treaty. Those changes can only be implemented as laws passed by the Congress. The Central Authority *does not* have he power and authority to pass laws or to implement changes in the procedures. What they are doing is totally illegal.


2. The accession of Guatemala to the Hague Convention and the appointment of the PGN as Central Authority have been challenged before the Constitutional Court. The arguments are very solid and I believe that the only correct and legally defensible outcome is to declare both the accession to the Treaty, and the appointment of the Central Authority null and void. Unfortunately, nobody knows when the rulings will
be issued. We only hope that they will come out very soon.

3. One country can be obligated or benefited by an International treaty only if such country becomes a party to the treaty. Countries that are not parties, with regard to an specific treaty are regarded as Third States, in the terms of the Vienna Convention of 1969, also named The Treaty of Treaties. This is a well-estabalished principal of international law. Guatemala is a member to the Vienna Convention and therefore, it has to follow its norms regarding the application of treaties to other countries. Since The United States has not yet ratified the Hague Convention, the PGN /CA (which is not the Guatemalan Government, but only one office of the Guatemalan government,
whose duties are as adviser and consultant to other organs and entities of the government) cannot enforce its provisions on the United States. The concept may be difficult to grasp for some people, but for any person with legal training, it is a strong, solid and very legal argument. If the US DOS asserts the position of the United States as a Third State to the Hague Convention, none of the provisions of the Hague Convention could apply to Guatemalan adoptions by US Citizens.

4. The Constitution of Guatemala establishes that the treaties of Human Rights supersede the ordinary laws. Based on that, the PGN is actually taking the position that the Hague Convention is a Human Rights treaty and therefore, that it is now the adoption law of the country . They are wrong, because the Hague Convention IS NOT A
HUMAN RIGHTS TREATY. According to the book Derecho Internacional Pblico, written by Carlos Larios Ochaita, (current Chief Justice of the Supreme Court of Justice and husband of lawyer Elizabeth Hernndez de Larios, who works at the
Procuradura General de la Nacin as the current director of the Central Authority), there are two criteria that human rights must meet in order to be considered as such: a) All States must treat the Human Rights in the same way: in a global, fair and
equitable way, equally and with the same urgency; and b) All the States, regardless of their political, economical or cultural systems, have the duty of promoting all the Human Rights and all the fundamental liberties.

The institution of Private Law as related to adoption, cannot in any way, be considered Human Rights Matter. The Vice Minister of Foreign Relations of Guatemala concurs with the argument that the Hague Convention is not a Human Rights treaty and has
stated so in writing. HOWEVER, as can be seen by what has happened this week in Costa Rica, there is big international pressure to treat adoption law and the Hague Treaty as a 'human rights' issue, focusing on the 'human rights' of the child. This is pushed hard by Casa Alianza, by UNICEF and similar. This is *exactly* one of the reasons why the HT is such a terrible thing. It opens the door to all sorts of other activities that end up stopping adoptions.

5. Is it necessary to file legal actions against the PGN/CA?

The only way the PGN will stop their illegal position, will be if and when the courts order it o do so. That can only be obtained by filing legal actions against the Attorney General, the director of the PGN and the director of the Central Authority, for denying the validity of the notarial process,for refusing to process the adoption files , and for passing their own laws, without the legal power to do so. This is going to require an ongoing, aggressive and difficult legal fight.

6.What actions are necessary to file?

a.Recursos de Amparo: This legal action is to protect rights that are being threatened or violated, when there is not other legal way to defend them. The right of the parents to have their adoptions processed by the still valid laws is being threatened as well as the welfare of their adoptive children, with the recent publication of the Central Authority, who is taking over adoptions and saying that the children will have to be in state orphanages, and first should be "offered" to relatives,then to nationals and just until nobody wants them, they can be placed for interantional adoption. The Hague Treaty is not a Human Rights treaty and does not have the power to supersede the laws that rule adoption, parental rights and reliquishment. Only those who are affected directly can file the actions, which could be the birthmothers, the adoptive parents, the lawyers, the notaries and the foster mothers. Actually this is what Gregory and I discussed on this list three
months ago.

b.Constitutional challenges: against the PGN passing their own rules, declaring that the notarial process is no longer acceptable and that the central authority is the only one who can handle adoptions. Articles 81 and 87 of the Constitution, protect the
professional practice of the university graduates (in this case the lawyers and the notaries), and states that any law that restricts their field of practice will be declared null. A constitutional challenge must be filed by any three lawyers.

c. Criminal Charges: The actions perpetrated by the people at the PGN constitute several criminal offenses: abuse of power, neglect to perform their official duties, contempt, usurpation of powers, and to dictate resolutions that violate the
Constitution. (Articles 418, 419, 420, 423 and 433 of the Criminal Code). Criminal complaints can be filed by anyone, even if the person is not a victim.

Talk to your lawyers about these actions and don't be a victim. Take action.

NEW REFERRALS
While the PGN/CA keeps stalling the adoption cases, those prospective parents who are waiting to get a referral are, understandably, having second thoughts about accepting a referral, not knowing for sure if the child will be able to join them in their homes. The adoption agencies are reluctant to place children, fearful of lawsuits if the adoptions cannot be finalized. For them, adoption is something optional. For us, here in Guatemala it is not an option. Every day we are approached by mothers wanting to place their children for adoption. How can we say no, when we know that the
alternative for those children is death? On the other hand,if there are no families waiting for their adoptive children to come home,who is going to help us to fight this battle? Those who already have their children at home? Not likely. The laws have not changed. Adoptions are not closed. The Constitution protects adoption,the rights of the parents to decide to place their children for adoption and the legal practice of the lawyers and notaries. The fact that adoptions are temporarily suspended by the illegal acts of some bureaucrats,whose reckless actions are endangering the lifes of many children only makes us to fight harder. Don't give up on Guatemalan adoptions, because every year there are less countries where adoptions are possible. We have to reverse that process. Any parent should be able to make an adoption plan for a child that cannot be supported

We urge you to try to come up with a temporary solution, where the agencies would keep placing children, the parents would keep accepting referrals, thus helping the Guatemalan attorneys to support the children in foster care and hogars. At times like these, we need to join efforts to keep the system running. Otherwise, we will be shutting down adoptions by ourselves and turning our backs to those children who need loving parents.
We are firm believers that justice and honesty will prevail and that adoptions will go back to normal. It only takes a lot of work, some time and unlimited faith.

Warmest regards,

Susana Luarca, Attorney at Law
Asociacin Defensores de la Adopcin

Posted by Kelly at 11:45 AM

June 27, 2003

No Thursday Update this week

FYI: Nothing to report on the Thursday update (per Susana).

Yes, there is significance to the July 1st date, we THINK. Tuesday, we will probably know much more.

Posted by Kelly at 04:17 AM

June 19, 2003

6/19 Update from Asociacion Defensores de la Adopcion


For those of you that the statement *effectively suspended* is confusing, there has been no ANNOUNCED or FORMAL suspension. She is referring to the fact that NO post March 5th cases are getting past PGN (although, I have heard there have been some *slips*)
*Part 3 has been added...sorry, for the delay...my internet was down yesterday

(Posted with permission from Susana Luarca, Attorney at Law).
Date: June 19, 2003

Re: "The Thursday Update" on Guatemalan Adoptions

Dear Friends,

First of all, I want to present to you my most sincere apologies for the shameful way that the authorities of the Procuradura General de la Nacin (PGN) of my country are behaving, neglecting their duties, abusing their power and causing to all of you who are in the middle of an adoption process, unnecessary grief. We here are working to make this time of uncertainty as short as possible.

Here is information about the following

1. THE DE FACTO" SUSPENSION OF ADOPTIONS BY THE PGN
The PGN has suspended the processing of post-March 5 cases. That is illegal for them to do, because they are supposed to continue to process cases under the existing laws until new laws are put in place.

Legally and procedurally, when reviewing a file presented to them, the PGN has three days to give an opinion.

If they do not give an opinion in that time, then after the file remains there an additional thirty days the petition (adoption file) is considered denied and it constitutes grounds for arecurso de Amparo. This is sort of like an appeal, although that isn't the perfect translation in legal terms.

Lawyers who have adoption cases at the PGN for more than 33 days, regardless of being pre- or post- March 5th, must file the amparo/appeal within 30 days after that 33-day period. After that time, there is a statute of limitations which will preclude them from filing this appeal. Some lawyers do not want to do it because they are waiting to see if the new procedures will allow us all to keep working as usual. Many lawyers are concerned that they will ruffle too many feathers, and/or they don't want to be in a position to suffer recrimination. However, I do not believe they are being bold or aggressive enough. They should file immediately after the 33-day period.

My impression is that the PGN has taken a very hostile attitude and position which is totally illegal, and this position should be dealt with accordingly. It is necessary for a court to rule whether a convention that does not have the power to change the existing legislation, actually gives the PGN the right to stop
what they are supposed to be doing, while waiting for some implementing legislations that is not even being established. They are legally required to
continue processing and review the files and give their opinion. This is but one of the disruptive effects of the Hague Convention that I warned about months ago - the uncertainty principle and the law of unintended consequences at work.

The Valladares Law is the only proposed adoption law being studied in ongress, and it does not follow the Hague provisions, because the so-called attractiveness of the convention is that the country of origin establishes the adoptability of their children and the country of destiny, qualifies their adoptive parents. According to the Valladares proposed law, it has the right to disqualify prospective adoptive parents, for reasons that go from the very serious ones to the silliest; it goes so far as to insist that parents sign a promise not to "remove the childs organs. This only applies to foreign parents. In addition to this technical flaw, it is a terrible and unsatisfactory law to work with.


It also forbids adoptions to countries that are not full-fledged members of the Convention for the Rights of the Child and the Hague Convention, like the United States of America. The revision of this proposed law is (thankfully) going very slowly and it cannot be passed without a favorable opinion of the commissioners. The commissioners are not willing to give a favorable opinion on it, the way it is now drafted. (For more information about this awful proposed law see the June 5 update).

Thankfully, in accordance with my urging, several lawyers are working on their amparos/appeals of their cases which have been stuck in PGN. Also, we have
talked to several lawyers, analyzing each case, and some of them are poised to present amparos as soon as the required time passes by.

Unfortunately, others prefer to wait. It is up to the adoptive parents to instruct their lawyers whether they want to use legal actions or would rather wait and see how others fight for them.

This might sound critical but it is not. It only states the two positions that the adoptive parents whose cases are stuck at the PGN for over a month, may take. Think it over and instruct your lawyers accordingly. My opinion is that all the adoption lawyers should take an aggressive stance and file amparos as soon as the 33 day time period is up. There is strength in numbers and we need to stick
together in order to affect change and progress.


(PART 2)
2. WHAT CAN HAPPEN IN THE NEAR FUTURE?

There are several possible scenarios:

a) There could be a "hostile takeover" of adoption cases by the PGN.
Since the PGN already has the files, they could say that the lawyers must surrender the children, and stay out of the process and make a rule that from then on, the adoptive parents have to deal directly with the PGN. In this scenario, the PGN would collect the second half of the fees and finish processing the adoption.

Believe me, this option has crossed their minds and has been discussed. Not only would this be illegal, but would cause a grand uproar. The lawyers would not give the children and would demand a return of the files, and file appeals on all the suspended and delayed cases. After all, the PGN does not have the last word on an adoption case; it is up to the judges of the Family Courts to rule whether the adoption may proceed.

About two weeks ago, a judge approved an adoption after it had been rejected by the PGN for "failure to comply with the Hague Convention provisions". My opinion has always been that this reason is just an lame excuse, because there *are no* Hague Convention provisions to follow at this time. Thankfully, the child has now already left the country with his adoptive parents. There are several legal actions which could be taken against these illegal measures and the PGN authorities would be in trouble.

Therefore, we do not believe -even though this was discussed - that They would attempt something as dumb as trying to take total control of adoptions mid-stream.

b.) Issue new regulations that would establish new requirements
If PGN were to issued "new regulations", this would be totally illegal. Since the regulations in this case would be issued by the PGN, those regulations would not have the power to modify the rules of the adoption process because only Congress can modify the existing laws.

On a practical level if such "new regulations" by the PGN were not to absurd, some lawyers might accept them because they want to finish the cases. However, to compromise on such an important matter and effectively "look the other way" would be wrong, as it would open the door to more abuses from the PGN.

We have been told that the lawyers at the PGN meet every week to think of new reasons to reject the files and that they find very amusing how the adoption lawyers accept them without arguing. If we accept the power of a Central Authority - of dubious existence - to issue laws, and follow them, we will be duplicating the abuses of the PGN. First the Central Authority and then the PGN, will be demanding different things every time. Remember, they are not really interested in processing adoptions or the welfare of the children.

We have many times asked the Attorney General to make a complete list of all the reasons why a case can be rejected, so that we can be certain that all is in order. However, the Attorney General ignores this request. They simply do not want to limit their right to improvise to their heart's content. That is why we constantly see new and creative reasons for rejecting a file.

c.) The United States could assert its position as Third State and the PGN would then have to process all cases according to the existing laws.

In the last two days I was able to speak with Hannah Wallace at length and I have had long conversations with other adoption professionals including some in the USA. Topics included the change of heart by the adoption agencies who are no longer supporting the Hague Convention and are requesting the Joint Council to withdraw its support as well.

Another topic was United States' Third State Status, regarding the Hague Convention. The consensus is that this is an issue that is difficult to explain to the Congressional Coalition of Adoption. I agree that it is difficult, but I still believe that it is the key to unlock the post-March 5 cases.

Guatemala is a member to the Vienna Convention of 1969 that says in its article 34: "A treaty does not create either obligations or rights for a third State without its consent". The PGN has ignored this aspect, even though we have presented this argument to them. But this same point, if coming from the US DOS, cannot be ignored.

I allow myself to urge all of you to keep writing to the DOS, to request that the United States as a country do what it is right to protect the rights of its citizens from having their adoptions dragged under the scope of a treaty that the US is not a member to.

I know this is the legally correct stance. However, be prepared that this argument may not seem valid to some people. But that is because those people don't want to see this as the catalyst that will help to expedite your adoption cases and will allow new cases to be processed smoothly, without the added layer of bureaucracy of the Hague Convention.

d.) Other Hague Countries could object to the accession of Guatemala to the Hague Convention.

According to the provisions of the Hague Convention, the Contracting states may object to the accession of a country, according to Article 44 which says, in part: " (3) Such accession shall have effect only as regards the relations between the acceding State and those Contracting States which have not raised an objection to its accession in the six months after the receipt of the notification referred to in sub-paragraph (b) of Article 48. Such an objection may also be raised by States at the time when they ratify, accept or approve the Convention after an accession. Any such objection shall be notified to the depositary."

It that were to be the case, and a country objects to Guatemala's accession to the Hague Convention, then that country may choose to take one of several courses of action: (1) keep adoptions open regardless of the Hague Convention or (2)close adoptions from Guatemala based on what UNICEF, ISS and the EU have been telling them about the "horrors" of Guatemalan adoptions. In that case, it would be a very big task for the nationals of those countries to show and convincingly explain to their authorities the evidence of those organizations' agendas and to help us to defeat the Hague.

e. The PGN could declare an official suspension of all adoptions started after March 5th

A week ago, I thought that a suspension could be likely due to the "hands-off" attitude of, and apparent lack of support by, the US DOS. However, after seeing your success (now you are a mob and you rule, yes!) in persuading the DOS to take a more proactive position, I seriously doubt that the PGN will declare an outright official suspension.

According to Guatemalan law, an outright suspension would be unconstitutional because it would violate several articles of the Constitution and according to the Criminal Code, it would constitute more criminal offenses.

The PGN director Merida and General Attorney Rosales were elected Congressmen. They are out of Congress with permission. It's an election year, and they want to be reelected, so it would not look good to be accused of criminal offenses at election time. It would be a serious mistake for them to do anything that could result in criminal actions against them.

Any three lawyers can file a constitutional challenge if there were to be an official and outright suspension. However, the amparo/appeal I discussed in Part 1 of this update has to be filed individually and it benefits only that specific adoption case.

Remind your agency and attorney that the filing of an amparo is a powerful and effective measure that your attorney can use to pull your adoption case out of limbo in the event that the PGN continues to let the cases pile up which is really a passive-aggressive way to effectively 'stall' adoptions while they plot what to do next.

WEBSITE
Our website is under construction. I will post the address when it is ready.

I, and many others, am fully convinced that the Hague Convention is detrimental to adoptions and that it should be defeated around the world, so that adoption can give permanent and loving homes to more children.

I believe it is unacceptable and it should be inconceivable that the decision by a birth mother to place a child for adoption should be subject to the States (and UNICEFs)power. Yes, there need to be regulations and checks and home studies and so on. However, all these things are, and have been, in place along with criminal penalties for transgressors. The HC and UNICEF are trying their best to take things many steps further with the hidden agenda of putting a stop to virtually all adoptions.

The condescending attitude of the proposed Valladares adoption law and of the Hague Convention that sets proposed or preferred geographical limits to the
adoptive parents, is not only puzzling, it will stifle the birth mother's wishes and unduly interferes in the process.

Now, how would it be taken if somebody came up with the idea that people should marry in the same order that they want children to be placed for adoption?
First among the community, then among the country and last, to a foreigner? Many arguments could support that, but nobody would like/accept that limitation. By the same token, who is UNICEF or The Hague to say, in these times of constant moving, that a child is better off in their own country, sick and neglected, than with a permanent family in another country? It is interference in adoptions and not help for the children.

Web Site Help
A powerful tool to communicate worldwide and to join forces against the Hague Convention on Intercountry Adoption would be a website where correct information would be posted. Possible names could include www.NoToTheHague.org, and a Spanish one called www.NoAlaHaya.org. The name maybe different, but the message of opposition has to be clear. People around the world should know what lies beneath a treaty that has mislead so many for so long. We cannot remain silent. If you want to set up the website, e-mail me. I can't do all the work, I don't have time; but perhaps I can get you started.

HARASSMENT OF FOREIGN PARENTS BY THE POLICE

An isolated case of two policemen trying to extort money from four US mothers (two with children and two without) was reported two weeks ago. Fortunately, they had a cell phone and they called their lawyer and other people. Somebody was brave enough to tell the policemen over the mother's cell phone that the US Embassy and the Police were on their way to arrest the policemen for harassment. The policemen then let them go.

Be sure to carry a cell phone while you are here in Guatemala, and if any police harassment ever happens to you, be sure to call someone to come to your
rescue. Have your lawyers cell phone and do not hesitate to call.

You can ask the policeman Cmo lo podemos arreglar? which literally jeans "How can we fix this?" Those are the code words for What can we do, how can I pay for this (bribe), without really saying so. If the policeman takes the bait, and starts to hem and haw, or suggests that you pay a "fine" to him right there, or says that he has to check with someone, then you will know that they are not seriously planning to take you to their headquarters. Knowing that, you can assume they are just hassling you in the hope of getting some cash from you. At that point you can inform your lawyer of what is going on and even use the threat of US Embassy action. They will then know that the could get in trouble and likely, leave you alone.

Having said this, they are within their authority to check people and papers. So above all, take with you all the documents relating to your child, the adoption, your passport, etc., at all times. It is also important to have something that shows you are authorized, by the child's custodian, to have the child. Considering all the visits and travels by adoptive parents, there have been very few problems. Take the usual precautions when traveling in a large city and do not let possibility of hassles and problems prevent you from enjoying your
stay.

TO ADOPT OR NOT TO ADOPT?

To adopt or not to adopt is obviously a personal decision. So as much as I would like to give you the quick and perfect answer, I can't.

But the current problems should not be taken as a deterrent to adopt from Guatemala. The US Embassy is accepting applications for the DNA, the Family Courts are processing the cases; they are doing so very slowly, but we will take care of them later.

Passports and Civil Registries are better than ever at processing paperwork; obtaining a Guatemalan passport now takes only three hours. The roadblock is at the PGN but this is an internal "work stoppage" and not based on any legal grounds or new laws. We think that with a little push from the US DOS, the PGN will once again, albeit reluctantly, begin to process the files that are in its office.

Remember that this is not the first time that adoptive parents had problems that looked unsolvable. Last year adoptive parents had to wait two or more months for the passport or their already-adopted child and nobody was talking of not accepting a referral because of that. With extra legal work here in Guatemala, we were able to get a ruling that resulted in the passport office having to process the passports quickly.


Please try to keep things in perspective. Weigh your options and decide on a course of action. If you are asking me, I would suggest that you tell your lawyer
here in Guatemala to file an amparo; but the lawyer must do so quickly because there is a short time limit in which to file.


It might help you in this difficult time to focus on how we can come out of this temporary PGN work stoppage" experience, stronger and more united.
Meanwhile, perhaps join the petition efforts or write letters to whomever might have an interest in helping you such as your elected officials and the DOS. Be
wary of any mass media coverage, though.

I hope you will go out of your way to join me and many others in doing what is possible to minimize the terrible after-effects of the Hague Convention on
InterCountry Adoption.

Best regards,

Susana Luarca
Attorney at Law
Asociacin Defensores de la Adopcin
Guatemala City.

Posted by Kelly at 06:23 PM

June 13, 2003

6/14 Update from Asociacion Defensores de la Adopcion


Guatemala UPDATE SUPPLEMENT

(RE-posted with permission from Susana Luarca, Attorney at Law). We appreciate Susana's permission to temporarily repost this information as we feel it is important for as many people to read what is going on.

(Part One of Two)
Dear Friends,

As I write these lines, a ceremony is taking place at the PGN to officially announce and establish a new DNA testing lab to use in the adoption process. The speeches of the Attorney General and PGN director were about keeping adoptions open but with more transparency; they insisted that they are not trying to close international adoptions. At least on the surface, that is encouraging.

However, this does not mean all is well, and I am pretty sure they are about to announce some new twists in the adoption process, something we might not expect.

That doesn't mean adoptions would stop, but the entire process might get more involved and less efficient than ever.

As I have been sharing with you, the inefficiency of these bureaucrats is overwhelming. Some years ago, a number of embassies began requiring the DNA test. The embassies carefully elaborated on and they established their required system of doing the test. It was made mandatory and began working quite well.

At our request but without warning, on September 12, 2002 the PGN demanded that the DNA should be done in all cases, for all adoptions, even though a particular embassy may not have required it.

Because of the fact that this would erase uncertainties and accusations, we applauded the measure, but asked for specific guidelines. We couldn't get any guidelines at all, and at that moment, all adoptions for countries that had not
required a DNA test came to a standstill.

The Attorney General remained silent and PGN director Merida was "too busy" to see us. Most ridiculously, the files of children who had been *declared abandoned* began to be rejected, "for lack of DNA test", even though by their very nature, abandonments would of course not have DNA tests. Further, the legalizations/certifications and translations of the DNA test results were a problem that we had to solve, gradually over time.

It took a while - three to four months - to get things back on track.
But it has taken until now, nine months later, they have finally implemented a DNA unit, right at the PGN, where it should be, to make the tests easier, faster and more transparent. We don't know when DNA tests will start be processed at this new unit or if it will be required that all DNA tests be processed here. And again, there have not yet been any promulgated specific guidelines on exactly how the process is to work or how the test material and results are to be handled. I hope not, but it would not surprise me if an announcement was suddenly made that all DNA tests must be processed at the new PGN DNA unit. Imagine the confusion if they made such an announcement without taking into account DNA tests in process, regulations for handling the test, requirements for mother/child photos, and so on. But that is unfortunately the history of these types of new rules here.

Guatemala UPDATE SUPPLEMENT PART TWO of TWO

With the Hague Convention, the same thing is happening. Guatemala has this new Treaty that they do not now how to implement, and they don't have among them someone who can lead the way.

It is like having a car with no gas. Then someone puts in diesel fuel, but they have no driver. Then they find a driver but he doesn't know how to drive a manual transmission. Finally they get a proper driver, only to find out that the fuel is the wrong type. And at this point it is midnight and all the gas stations are closed. Then in the morning, when the station opens, they find they have no money.

To make things worse, the public officers don't want to take our suggestions, because the PGN lawyers are very resentful of the amounts that it is said that lawyers charge for adoptions. In their eyes each adoption file becomes evidence of the wealth that the lawyers are getting, and they are not. They resent this because they believe it is not fair that the lawyers "earn so much", when they are the ones who are contributing with their work to make the adoption possible.

It is my impression that the confusion over the Hague situation will be resolved fairly soon. I don't have a crystal ball, although many people believe that I do. But an educated guess is that in two to three months all this problems will be solved. This will require hundreds of hours of legal work, lobbying, attending meetings and keeping our ears to the ground.

So, this doesn't mean that you can relax now and focus only on theories and what you perceive as "issues" in adoptions from Guatemala. You can address any of that later, once adoptions are again being processed as smoothly as possible.

What my prediction does means is that if we all want the problems to be solved, we have to keep working, writing letters, making pressure, to move the people in power to help us to push away this bureaucratic roadblock. In all of this I urge you to be very careful when dealing with the media, especially television and talk show programs.

If you do decide to write letters include what you wish about your particular situation, but don't just focus on self-centered issues; and please be clear in conveying the following message:

THE HAGUE CONVENTION DOES NOT APPLY TO THIRD STATES AND SINCE NO
IMPLEMENTING LEGISLATION HAS BEEN PASSED,THE ADOPTIONS BY US CITIZENS SHOULD NOT FALL UNDER ITS SCOPE.

To those who remind us that Guatemala may do as it pleases, it is true.
But you can still have influence by putting on pressure.

In Guatemala, it is our duty, as lawyers and as citizens to preserve the integrity of the Constitution and the State of Law in our country. What the PGN is currently doing with the effective suspension is illegal and we are not going to let them do it without raising our voice and taking the proper legal actions. But we need your support and the pressure that your country may bring, by clearly asserting its position as third state. (In the case of the USA)

Best Regards,

Susana Luarca, Attorney
Association in Defense of Adoptions
Guatemala

Posted by Kelly at 08:40 PM

June 12, 2003

6/12 Update from Asociacion Defensores de la Adopcion


I apologize for not formatting the text yet....I wanted to post this information ASAP. We have learned the DOS (and Ms. Gaw in particular) is denying that DOS recommended the suspension of Guatemalan adoptions (which is still hanging in the balance).
More to come......

Thursday June 12th 2003 Update (RE-posted with permission from Susana Luarca, Attorney at Law). We appreciate Susana's permission to temporarily repost this information as we feel it is important for as many people to read what is going on.


Dear Friends,

Here is this week's The Thursday Update containing
up-to-date information including:

Part One

a. Proposed UNICEF/Valladares Adoption Law
b. The June 9 Meeting with Guatemala's Attorney
General *IMPORTANT
c. The Hague Conference of Private International Law,
UNICEF and US DOS.
d. Legal Campaign
e. Letter Campaign
f. Publicity Campaign

a. PROPOSED UNICEF ADOPTION LAW
I finally finished my careful review of the proposed
(and promoted) UNICEF/Vallardes Adoption Law. It is
obvious that it was drafted by someone without any
lawmaking skills, by someone who is not in favor of
adoptions and, to impose requirements impossible to
fulfill.

Candidly speaking, if that particular law is ever
approved it will be
very difficult to do an adoption.

As it is now proposed, the birthmother is required to
live with the babyfor the first ninety days after
delivery, before she can place her child
for adoption. This presents a wide range of terrible
child- and bmother- possibilities.

After that ninety day period, the child must then go
through a process to be declared abandoned by a
Family Court, which is no small problem, because
abandonments fall under the jurisdiction of the Court
of Minors, and it takes approximately eight months to
obtain an abandonment decree.

However, the worst part is that after the of the birth
mother decides to place the baby for adoption, the
child the next priority is that the child, the child
should be given (not adopted)to one of the relatives
or, get this, to a non-relative living in the birth
mother's community.

Only then, if no relative and nobody in the community
wants the child, can s/he can be placed for adoption.
Adoption priority is to then be first with nationals
and when those possibilities are exhausted, only
then will children be available for adoption by a
foreigner. But the foreigner must be from a country
that offers children the same legal rights that
Guatemala offers them by being parties to the same
international treaties regarding children, such as the
'Convention for the Rights of the Child' and the Hague
Convention.

The plot thickens because the USA is not now a party
to these International Treaties. Therefore the logical
conclusion is that, according to this proposed law, US
citizens would not be eligible to adopt children from
Guatemala.

Why this convoluted reasoning and provisions? I just
don't know - you and I need to ask UNICEF why.

To show you just how anti-adoption these proposed laws
are, the Valladares proposal actually contains
language that says that the adoptive
parents must agree and promise that they will not
remove the child's organs.This of course, is a
subliminal way to convince the reader that there is
something inherently evil about intercountry
adoptions. And, what if in the future there would be
a medical reason to do so? And they have the
unmitigated gall to call this an 'adoption' law.

False Pretenses
What is actually happening is that under the pretense
of respecting the rights of the child, they want to
create a monopolistic system of adoption under the
power of the State. In Guatemala that is a recipe for
disaster in the incapable hands of the bureaucrats.

The PGN, appointed as the Central Authority a year ago
has in essence suspended adoptions since it started
working as the Central Authority on March 3, 2003. The
PGN is now saying that there will be a 'temporary
suspension' of adoptions; but in reality, that is
exactly what they have been doing since March 3. This
should be a clear and obvious glimpse of what will
happen if we allow the government, via a Central
Authority handle all adoptions.

This bureaucratic inefficiency will simply worsen the
total incapacity of the Guatemala to provide for child
care, and we will face a much bigger and longer-term
problem. Who will care for the children? Who will
pay for the care of the children? Who will build more
children's homes/orphanages/hogars.

The Guatemalans find that the looting of the State's
resources by the people in government is worsening
every day. The latest scandal is the embezzlement of
the more than US$60 million from the funds of the
Guatemalan Institute of Social Security, which runs
the main hospital system for all formal employees in
Guatemala. Those funds are provided by the employers
and by the workers through a percentage of the payroll
and of their salaries.

After a succession of dishonest general managers, the
last one helped to arrange an elaborate scheme, along
with seven others in and outside the IGSS system, to
steal this incredible amount of money. The national
auditor said they didn't notice anything amiss,
despite many warnings by the press and a few members
of congress over the last year.

That leaves the Social Security with no money to
provide for the pensions of the retired, the disabled
and the widows. No money to pay for medicines or
medical equipment, or salaries for the workers of the
hospitals. It has also been revealed that the
government, which is also
an employer and pays into the IGSS, has not paid in
over $55 million
dollars in back payments. The State takes social
security payment off
the salaries of its workers, but does not give its
part nor has it paid
in the workers' money to the Social Security.

The irony is that when discussion is about passing
laws that would stop adoptions, the people in
government say with a straight face that they
have tremendous pressure from the international
community to pass those (anti) adoption laws. But
when it comes to pure corruption and the
wholesale looting of the people's money, they could
not care less about the opinion of the international
community. The Ambassadors and international
representatives are pictured in the newspapers looking
very angry, saying that the international aid and help
will cease unless there is a stop to corruption. This
aid is worth hundreds of millions of dollars a year,
yet this does not seem to worry the people in
government.

B. THE MEETING WITH THE ATTORNEY GENERAL OF
GUATEMALA

Last Monday, I and three other adoption lawyers had a
high-level meeting
with the Guatemala Attorney General, Luis Rosales.

We expressed to him, and discussed with him, the
following:

a) The Hague Convention is nothing more than an
international treaty,
binding only between contracting states, without the
power to change the
existing legislation of the country or to obligate
third-party states.
The
Central Authority has no legal right to hold the
post-March 5 cases,
because the laws that rule adoptions have not changed.
We explained that
only Congress can pass implementing legislation to the
convention.

b) The PGN director has been delaying without reason
the signing of
all the cases, and many times the cases are rejected
for silly reasons.
We have complied and responded to every tiny objection
that the PGN
lawyers have raised, but they then come back with new
and other tiny
objections not previously mentioned; there is no way
to please them. I
said that the time has come when we are forced to file
legal actions
against them for their negligence and failure to
comply with the law and
discharge their duties as public officers.

c) The children who are adopted have their life
problems solved, because
they will have love, family, home and education. If
they are not
adopted, they will be abandoned without homes, many
will die and if they
manage to survive, they will become children of the
street first, and
then delinquents and criminals. Street crimes and
child prostitution
will increase and more children than ever will suffer.

d) The communication with the director of the PGN is
broken, and we
think that our voices must be heard so that we can
help draft and
implement legislation that will actually benefit the
children. After
all, we have more experience and knowledge of the
potential problems
and, of the adoption process and needs and concerns of
all the parties
involved in an adoption.

Rosales told us:

i) That the PGN has a tremendous amount of work
overseeing adoptions
because of the large number of them and, because it is
their duty to be
thorough.

ii) His opinion about adoptions and about the amounts
that lawyers
charge for them is neutral. However, he does not share
our opinion that
the best that can happen to a child without a family
is to be adopted by
foreigners.
Actually, he used the words 'exported through
adoptions by foreigners'.

We explained to him that three years ago, a group of
lawyers formed an
association to do pro-bono adoptions to Guatemalans,
as an effort to
promote national adoption. After a year of paying for
office space, a
secretary and newspaper ads, we closed without having
done one single
adoption, due to the lack of interested prospective
adoptive parents. We
said our offer to process adoptions for in-country
Guatemalans was still
open and asked him to help us to create in the
Guatemalans the desire to
adopt, without stopping with bureaucratic roadblocks.
In reality, we
said, international adoption is currently the only
practical options for
children without a family who wants them.

c) Rosales told us that a Ms. Monica Gaw, delegate
of the US
Department of State expressed to him that the DOS
wants the PGN to
suspend adoptions, while they implement legislation
according to the HC.
Rosales told her that the PGN could not do that
however the PGN did
effectively suspended them later, but not of their own
accord, but
because the Hague Conventions "caught them by
surprise". (Yeah, right.)

d) He confirmed what Mrida of the PGN told the
lawyers - before
going to The Hague meeting in May - that the General
Secretary of The
Hague Conference of International Private Law came to
Guatemala to
dictate the guidelines they expect Guatemalan
adoptions to follow,
according to the convention. Rosales confirmed that
The Hague secretary
told them that "the lawyers should be banned from
involvement in
adoptions, and no more baby farms should be allowed."
His words.

e) One of the lawyers in our meeting, Mr. Carrillo,
asked Rosales to at
least hold off on the application of the Hague
Convention for all cases
for an additional sixty days, to give us time to
finish already-started
adoptions. I personally was not in agreement to offer
this compromise
and reiterated that it would be a better and
legally-defensible option
to accept the position of the United States as a Third
State and not
apply the convention to the US cases. He could
possibly set a sixty day
delay of the Hague Convention to cases to other
countries who are
parties to the HC. In that sixty day period, we could
all work together
to implement reasonable changes in the legislation
that would allow
adoptions to continue to be processed according to the
law.

f) We gave a copy of the Vienna Convention to
Rosales, and a copy of a
brief regarding the non-application of the Hague
Convention to the US.
He promised to study the documents, to talk to his
advisors and to come
up with a solution 'right away'. However, we are still
waiting to hear
from him.

C. THE HAGUE CONFERENCE OF INTERNATIONAL PRIVATE LAW,
THE US DEPARTMENT OF STATE AND UNICEF

These three organizations have something sinister in
common: they have
tried in one way or another, to stop adoptions from
Guatemala. Their
stated reasons and internal motivations may be
different, but the
objective is the same. Let me count the ways

1. The Hague Conference:
The Hague Convention for Inter-country Adoption is the
most
'popular'(i.e., more country members) convention of
all its
international agreements to unify international
private law in general.
The countries that are members of this convention are
qualified as
'sending' or 'receiving', which equals to 'poor' or
'rich' countries.
For the rich countries, it only serves to add another
layer of
bureaucracy. For the poor countries it is the end of
international
adoptions. Proof of this are the decreasing numbers of
visas issued by
the US to adopted children from countries that
embraced the Hague
Convention. The saddest of part of all is that after
sabotaging
adoptions in poor countries, the Hague Convention does
not promote or
help fund any alternative to the children, or
bmothers, left without the
option of inter-country adoption.

2. UNICEF It has had a long and extensive labor of
maligning
adoptions form Guatemala, hand in hand with Casa
Alianza, the European
Union and the group calling itself International
Social Service. And now
it is trying to stop adoptions from Guatemala.
Although the UNICEF
delegate who presented the ILPEC report, Elizabeth
Gibbons, adopted a
Guatemalan child while she was working in Guatemala,
she requested the
government to suspend adoptions in 2000 and to
implement the Hague
Convention, accusing Guatemalan adoptions of being 98%
illegal.

Christian Munduate previously presided over the
Guatemalan 'Secretara
de Bienestar Social', a very inefficient office of
social welfare whose
main purpose is to make the wife of the President look
good. He was so
helpful to UNICEF at that time, that he was
subsequently rewarded with a
post as UNICEF delegate to Costa Rica, considered to
be the Switzerland
of Central America.

Another UNICEF delegate, current Peruvian delegate
Gladys Acosta, claims
total ignorance of the catastrophic consequences of
the implementation
of the Hague Convention in Peru. I spoke with her in
persona and she
said she believes that the proposed Valladares
adoption law "is a
serious effort of the Guatemalan Government to fulfill
its promises to
the international community."

It may be difficult for you to reconcile the idea of
UNICEF, the
venerable institution created to help the children, is
actually working
so hard to eliminate international adoptions and does
its subtle part to
spread rumors of body-parts selling, high incidence of
illegal adoptions
and the use of the phrases "exporting children" and
"baby farms".

If you want to learn more about their activities go to
www.google.com
and key in the search phrase: UNICEF + abortion . It
will give you more
information about how this organization deals with
that issue. Maybe
the
fact that abortion is a criminal offense in Guatemala,
is what makes
UNICEF to try to close adoptions as an option for
unwanted pregnancies
and unwanted children, or children who can not be
cared for. Yet another
disturbing question for UNICEF. But they don't share
*this* information
and their anti-adoption stance and work with the
international
fundraising community. They keep us all in the dark on
these things.

The Current Role of the US Department of State?
Instead of the USA asserting their position as a Third
State and
requesting Guatemala to treat them accordingly, the
Guatemala Attorney
General reports the insistence of the DOS delegate,
Monica Gaw, that
Guatemala suspends adoptions. Now we understand more
things. Ms. Gaw is
as confused on the issue as the others, or maybe
UNICEF got to her. We
were wondering why the adoption files were piling up
at the offices of
the Central Authority, and this seems to be a likely
explanation.

Suspending adoptions due to the absence of any HC
implementing
legislation does not make sense, and it is shocking to
hear that the US
DOS might be actually and aggressively promoting this
action. To simply
delay the processing the files when we continue to
have current and
still-valid legislation does not solve anything.

The situation at the present time is: Congress is in
recess, no
proposals of new laws to implement the Hague
Convention have been
presented, and the radical proposed Valladares
adoption law would
actually establish a different Central Authority. The
only conclusion I
can come to as of today, is that the US Department of
State does not
want to keep adoptions open. This is terrible, and sad
and there is no
legal basis for this drastic behavior.

D. POSSIBLE LEGAL ACTION and CAMPAIGN

If the Attorney General does not offer a credible and
acceptable
solution within the next three days, we are going to
take the position
that we have exhausted all possibilities of an
amicable solution. At
that point, we will have to file legal actions to try
and keep adoptions
open and protect the children. I can't tell you all of
our strategy
here, but one of the key points will be that the
illegal, unfounded and
arbitrary delay in processing an adoption file is
cause of action.

We will ask the court to order the PGN/Central
Authority to release the
files being held hostage and to fulfill PGN's sole
duty of giving an
opinion, which is only that. The law says that if the
PGN opinion is not
favorable to the adoption, it still may be approved by
a Family Court.
Although the judges are never faced with that
situation, because we do
everything the PGN says to get its favorable opinion,
it is a
possibility we could elect to pursue. If the judges
refuse to then
approve the adoption, that will prove what we have
been saying all this
time: that adoptions in the hands of the judges are
doomed, because they
are not willing
to take the time and effort to study and rule on an
adoption file.

E. LETTER WRITING CAMPAIGN
The position of the US is very important at this
moment, as a back-up
plan
if the constitutional challenges are not upheld. Keep
writing to your
congressmen and senate representatives. Ask your
relatives, neighbors,
friends, admirers and coworkers to help. The more
attention this gets,
the
more chances we have of keeping adoptions open.

In your letters you can say that the US has not yet
ratified the Hague
Convention Treaty on International Adoption and
therefore is not
formally a party to it. However, although it is not
being implemented in
the US, the specter of the Hague Convention is causing
interminable
delays in the processing of adoptions from Guatemala.
US adoptions from
Guatemala should not be affected, because the US is
not bound by the
terms of this Treaty. It is not a case of discretional
application. The
Vienna convention sets the rules for Guatemala as to
when and to whom it
can apply a treaty. All we are asking is that the
Vienna Convention be
followed and that the US not be treated as if they
were a full party to
the Convention; in essence, that Guatemala should
apply the law
correctly and that the US insist on this. The DOS
should *not* be
stepping in and suggesting (telling) Guatemala to
suspend adoptions.

F. PUBLICITY CAMPAIGN - YOUR HELP IS NEEDED
We need help. Of all kinds. In Guatemala, ask your
agency/lawyer if they
are meeting with us, and if they are doing their part
to help us and
support us in all ways. Have them contact us. In your
countries, it
would be wonderful if you would form working groups to
come up with
ideas to help to keep Guatemalan adoptions open. I
understand that some
of you are bored and frustrated with all these delays
and threats of a
'Congress-attack'; and so are we. But if you and we
want to keep
adoptions open, then we must not allow ourselves to
get tired and
defeated. And it is going to take resources to fight
not only the
Guatemalan government, but world organizations such as
UNICEF, as well.

But the way we see it now, it is as an opportunity to
set the record
straight once and for all. Now is the time to educate
and inform
everybody
about the adoption legal system of Guatemala. We must
let it be known
that the current adoption process helps about three
thousand needy and
unwanted children a year and provides a good home and
quality care for
many other children that cannot be adopted due to a
lack of an
abandonment decree. Stress the fact that the
Guatemalan Government,
besides being corrupt and inefficient, does not
provide any funds to
support the unfortunate children and the parents from
making their
children work since they are very little.

We do not support the idea that a reform in the
existing laws is
necessary and we do not believe it should be done. We
earlier thought
and we now know for certain, that we are not dealing
with people who
have the best interest of the children at heart. They
say they do, but
they are really anti-adoption. We are dealing with the
Lords of Poverty,
the international organizations who profit with the
misery of the Third
World Countries. And they are ruthless, so there is no
middle ground.
Once you accept their sinister premise that each
country must embrace
the HC and that doing so will protect the rights of
the child, you begin
to fall down a slippery slope from which there is
little or no chance of
keeping adoptions open. Unless you pull out all stops,
and fight in
every conceivable way. But this requires resources and
a willpower that
has been lacking in most poor countries.

But it should known that aside from the legal system,
we are
implementing changes that will increase the
transparency of the process
and document everything, in order to have updated
information at hand,
to rebut their groundless accusations.

When I read the many of posts in the online Lists, I
see all that energy
spent in venting against a situation over which you
have no control. If
you would like things to happen, then join us in an
effort to make them
happen. Let's brainstorm and come up with ideas and
put them to work.
We have influence over certain number of people, who
can influence other
people. We must spread the message that adoptions are
A Good Thing for
the children and for their mothers, that Guatemalan
adoptions are
reliable and thoroughly reviewed by government
agencies, and that even
the US Embassy interviews many of the birth mothers.
This is one way we
can help to combat and possibly erase the bad, unfair
and untrue image
of adoptions that UNICEF and the others have viciously
given painted and
promoted, knowing that this image is untrue.

You already know how the general public reacts to
campaigns, how to
appeal to their support, how to make this happen.
Choose the media
carefully; I would not give interviews to
UNICEF-aligned news media,
such as BBC or CNN. Talk shows such and similar to
'Oprah' could be an
option, since she is very sensitive to this kind of
plea. Let the world
know that we are fighting for the lives of Guatemalan
children, who will
suffer if international adoption is no longer an
option for them as a
way to have a family.

There is a good probability that we can win this one.
And once we have
won, I will leave you alone, to discuss among
yourselves how much an
adoption should cost.

Best regards,

Susana Luarca, Attorney at Law
Asociacin Defensores de la Adopcin
Guatemala City

Copyright 2003 by Susana Luarca. '"The Thursday
Update" on Guatemalan
Adoptions' may be distributed, reproduced and quoted
from, provided any
portion so used is quoted verbatim and credit is give
to the source
along with Susana Luarca's address of
SusanaLuarca@hotmail.com


Posted by Kelly at 02:57 PM

June 06, 2003

6/6 Update from Asociacion Defensores de la Adopcion

Thursday June 6th 2003 Update (RE-posted with permission from Susana Luarca, Attorney at Law). A note to readers: Asociacin Defensores de la Adopcin is creating a website to answer many of the questions and to post these updates. We plan to link to this site when it becomes available and to note important news when it becomes available. We appreciate Susana's permission to temporarily repost this information as we feel it is important for as many people to read what is going on.

Dear Friends,

Here is this week's The Thursday Update containing up-to-date information including:

Part One, Two and Three
a. The U.S. Department of State notice about adoptions
in Guatemala
b. The PGN - Adoptions pre-March 5th
c. The PGN- Adoptions post-March 5th and continued in Part Two
d. Proposed UNICEF Adoption Law
e. The Law of Integral Protection to Childhood and Youth
f. Position: US Adoptions not affected by Hague Convention
g. Letter Campaign to US authorities
h. Publicity and Legal Campaign
Bruce Harris' trial should have been today

THE U.S. DEPARTMENT OF STATE NOTICE ABOUT ADOPTIONS IN
GUATEMALA

The U.S. D.O.S. posted a notice stating: "In light of the uncertainties facing international adoption in Guatemala with the implementation of the new procedures, adopting families should not file for adoption in Guatemala until the current problems are resolved."

Despite our attempts, neither the Consul nor the Vice-consul have given us an appointment so we could explain to them the real situation about the PGN and the so-called implementation of the Hague Convention. Hannah Wallace, Caroline Tiffin and Rudy Rivera have asked for an interview on our behalf, without any results. The Consul, Mr. Mike Jocobsen insists that he only talks to the Central Authority/PGN and that any issues about Guatemalan Adoptions should be discussed either with the PGN or with the US Central Authority in the US Department of State because these are the proper points of contact under the Hague Convention. It is rather obvious that Mr. Jacobsen is not aware that the US has no "central authority" and no "proper points of contact" because it is still "Hague-free"; I hope it stays that way for many, many years.

b. THE PGN - Pre-March 5th Cases
Yesterday the PGN director Rudio Lecsan Merida, the chief of the section that deals with adoptions, released a large number of adoption files. If some of them are noted as having been rejected, they will have to be corrected and submitted again. If they were approved, then your lawyers may draft the deed of adoption and once the birthmother or the director of the hogar (if it was an abandonment) has signed off, the adoption is finished. Copies are then sent to the Civil Registry, new birth certificates are issued, passport and visa are obtained and you are free to take your child home. It takes a couple of weeks between the date that the PGN gives the approval and the pink slip (ticket to pick up your child) is issued.

c. THE PGN - Post-March 5th Cases
In the Constitutional challenge against the appointment of the PGN as central authority, we pointed out that such an appointment was a mistake because even now they can not handle the daily work of reviewing the files that by law have to be submitted to the PGN for its opinion. Their response was to deny our assertion and to accuse the lawyers of defaming them "now that with the Hague Convention ... the hen who lays the golden eggs is running away." This they put in writing, in the response to the challenge, believe it or not.

If your case has not been released after one month in PGN, whether it is a pre-March 5th, or a post-March 5th case, you may file a legal motion called a "recurso de amparo", for denial of an administrative response.We have talked to a lawyer who specializes in these matters and who will handle all our cases and who will also prepare criminal lawsuits for the criminal offenses ncurred by the persons who are delaying the files.

This is the first time in history that the adoption professionals of Guatemala are taking legal action against the abuses of the administration. It is also the first time that we have had so inefficient and negligent authorities. When faced with
this kind of problems the common attitude has been to be patient and to wait. I have many times told impatient parents: "They can delay it, but they can't deny it", knowing that it was just a matter of time.

But now, when they say one thing today and do the opposite tomorrow, we
can no longer afford to be passive. The officials have no idea what to do about an international treaty that cannot be applied by itself without implementing legislation. Yet they knew more than eight months ago that the PGN was going to be appointed Central Authority, and it is only now that they have about eighty cases already presented to them, that they are "considering a temporary suspension of the new adoption cases to address the concerns raised about the
implementation of the Hague Convention".

All they have done until now is to interview a few birthmothers, and in such a manner as to have made them cry and feel guilty.


e. THE LAW OF INTEGRAL PROTECTION TO CHILDHOOD AND
YOUTH

A less poisoned and less potentially dangerous version of the Code of the Childhood and the Youth of seven years ago, was passed by Congress yesterday. It was almost approved before Congress went into recess and yesterday the congressmen of the ruling party met at a special session, just to approve this law, with some changes. It makes the legal procedure for minors in conflict with the Criminal Law.

According to the Constitution, minors can not be judged to be delinquents, so they have to be treated differently when they commit criminal offenses. The former and terrible - version of this new law was fully supported by the PGN State Attorney and Casa Alianza. At a press conference held at the PGN offices on September 11, 1997, Casa Alianzas director Bruce Harris accused the Guatemalan adoption professionals of opposing the law because it would stop illegal adoptions.

He publicly accused me,- when I was then still married to the President of the Supreme Court - of illegal activities regarding adoptions so that he could sway the opinion of Congress about a motion presented by my then-husband; the purpose of that motion was to try to postpone the effect of this terrible law for six months based on of a lack of funds to implement the additional courts that would be needed.

Right away I pressed charges against Harris for defamation and the court found that there was merit in my claim and disallowed Harris' petition to dismiss my case. However, for over five and a half years now, Harris has been artfully evading trial, filing over and over the same frivolous defense that is denied every time and each time he files an appeal and more frivolous claims. He now claims that he should be tried as a journalist, to get the benefits of a more benign law that applies only to the journalists. The court has already informed him that "...because he is not a journalist, he cannot be tried as one.
When eventually he goes to trial, he could be sentenced to at least eight years in a Guatemalan prison. More information on his website:
http://www.casa-alianza.org

Today was another one of many frustrated dates for his trial. Again the file was still at the Court of Appeals and therefore the trial did not take place. My lawyer and I will continue the struggle.

f. US ADOPTIONS (SHOULD) *NOT* (BE) AFFECTED BY HAGUE CONVENTION
The legal arguments that support our allegations that the Hague Convention is a treaty, and that like any other contract, is binding only between parties, is not nuclear science. But it seems to be for the bureaucrats at the PGN, so it will take a little longer to educate them on what we are trying to explain.

Almost a hundred adoption files are piling at the Central Authority, are a headache to the authorities of the Central Authority. It would not come as a surprise if they, cornered by the impossibility of applying a treaty without implementing legislation and, due to their own incapacity, would give back the files to the notaries/lawyers, with a lame excuse based on their improper interpretation of the Hague Convention.

If that happens, we will take legal action right away.
The silver lining would be their public acceptance of their inability to handle a treaty made for receiving countries and totally unworkable for countries of
origin.

g. LETTER CAMPAIGN TO USA AUTHORITIES
We have discussed the possibility of a letter campaign by US parents and
families to the PGN/Central Authority as the US consul suggested, but we have decided against it. Our reasoning is the we aren't convinced that the USA citizens have anything compelling to say to the Hague Convention contact person at the PGN. There are no previous procedures or new procedures The procedures are the same for pre- and post- March 5th cases and they are already in the existing legislation. It is not up to the ineffective authorities of the PGN to decide to process or to not process an adoption case. Also, to involve the US Consul's office isn't the perfect contact point, because the Consular office's main purpose is to protect the rights of the citizens in foreign soil.

We believe that the U.S Department of State should clarify why they have
decided that it is fine or acceptable for the PGN to decide to finalize only already-started adoptions and to tell other families not to file for adoptions in Guatemala until the current problems are resolved.

To apply, or to not to apply the Hague Convention is not a matter of internal law or of public policy, but of International Law. We think that the US DOS should recognize this distinction and press for proper application of International law, which is something they already know how to do. This is not, as some have suggested, akin to meddling in another country's laws or internal politics. This is a matter of insisting that a country with whom we have diplomatic
relations regard and respect the International Treaties, policies and procedures already in place by mutual consent. In the case of the PGN, they have arbitrarily decided to change procedures and ignore proper and continuing protocol and treaty matters.

Keep writing to your Congress and Senate representatives and remind them
of the respective positions of the Consul and the US D.O.S. until the US DOS takes appropriate action.

g. PRO-ADOPTION PUBLICITY AND LEGAL CAMPAIGN
Today the first advertisement in our informative pro-adoption campaign
ran in the country's largest newspaper, the Prensa Libre. It shows a little boy with the sign: I am not a candidate but you can vote for me. Support adoptions, so I may have a family and a better life. Adoption is an act of Love. Campaign in favor of adoption. (included our email address.)

We are also planning to do an infomercial to show on cable tv stations both sides of the adoption process. We will show the Guatemalan side, with the before scenes of the children, their villages, their very sad lives, where they have to work almost since they learn to walk. We will also feature a few birthmothers, telling briefly why they chose adoption for their children. The other view would show some of the adopted children going to school, playing sports, living the carefree life that every child should have. We actually have no
experience with filmmaking and we would welcome suggestions and all the help we can get. The object is to dispel the rumors of organ transplant, slavery, trafficking of children, etc., that some people and organizations have spread so
effectively.

The legal campaign is meant to take immediate and effective legal action against every act of the PGN aimed to suspend, to retard or to stop the legal process of adoption. We would appreciate any help that you may offer. Email me directly please.

We are very confident that this wrinkle in the otherwise smooth process of adoptions in Guatemala will be ironed out, hopefully very
soon. But it is taking much more time and effort than we had expected. We see it as a vaccination, that is making us stronger to these and similar attacks against adoption and the true "rights of children". So that is good in the longer term.

Warmest regards,

Susana Luarca, Attorney at Law,
Asociacin Defensores de la Adopcin
Guatemala City
SusanaLuarca@hotmail.com

Content of "The Thursday Update" on Guatemalan Adoptions is copyrighted
by Susana Luarca. But please pass this information on as much as possible; I only require that you give proper source credit to Susana Luarca and include my email address!

Posted by Kelly at 10:18 PM

June 02, 2003

Strategy - Supporting Adoptions in Guatemala

Sunday June 1, 2003 Strategy (RE-posted with permission from Hannah Wallace, Adoptions International from the St. John's Listserve).

{UPDATE TO POST BELOW: I had a call from the Congressional Coalition on Adoption Institute today, with a request that people PLEASE STOP WRITING TO THEM. Their email is getting backed up. Please continue to write to your Congressional Reps. Several have already contacted the CCAI, so CCAI has enough Congressional interest to begin to try to get involved in the situation.

Because of the large volume of email, they won't be able to respond to each
person who's written or copied to them, but have been and continue to be
interested in the issues and willing to help in whatever way they can. More later,

Hannah Wallace, Adoptions International}


Dear Friends,

I agree with others that a strategy is needed for effective
advocacy. It may be helpful to separate the issues and develop a strategy for
each aspect of the problem. There is alot of documentation which can be used to support positions we are taking in each area. I also agree that the most effective advocacy is to inform and educate. We should not be intimidated by the fact that we are each small voices in a large constituency when approaching
our elected officials. Because, aside from the larger global issues we're addressing, each family's personal passion and "story" will also resonate. And we should also keep in mind that the Congressional Coalition on Adoption has about 160 Senators and Congressmen/women, bipartisan, who have been touched by adoption personally, or moved by members of their constituencies to get involved.

Appeals to our individual representatives can only help to increase their members. So, aside from writing to individual congressional reps, all correspondence should be also sent to The Congressional Coalition on Adoption Institute (CCAI) ... Executive Director, Kerry Marks Hasenbalg - email address:

kerry@ccainstitute.org

Letters can also go to the U.S. Ambassador in Guatemala, John Hamilton, and
the Consul General, Michael Jacobson. I don't have the individual email
addresses, but the Consular Section's adoption address is:
adoptguatemala@state.gov

The other relevant office is the Office of Children's Issues, Department of
State

The Issues (and whom to address):

(1) The issue of whether the HCT is applicable to U.S. adoptive families, as
the U.S. has signed, but not ratified, the Hague Treaty. It only HAS to be applicable to both parties of the Convention, and the U.S. is a third party. There will be a model letter posted shortly to address this issue to (a) your individual congressional representatives (b) Consul General Michael Jacobson in Guatemala (c) The Congressional Coaltion of Adoption Institute - The papers supporting this argument have already been filed with the U.S. Embassy and the Guatemalan Ministry of Foreign Affairs (equivalent to Department of State in the U.S.).

(2) The broader issue of interpretation of the Hague Treaty and its requirements from a Country which has ratified. A model of this letter will be provided shortly and it should be addressed to the same people as above. We know that UNICEF, Casa Alianza, several European countries, and other groups have been pressing the PGN/Central Authority to take a very narrow interpretation of the HCT, while the U.S. has been supporting a more moderate interpretation. There are RUMORS that officials from the Hague have also been pressing the UNICEF interpretation. Some adoption professionals have already put our Consul General and the CCAI "on alert" and asked for clarification and negotiation with the Hague officials re: this. However, public pressure is really needed to get some action and
answers.

BOTH of these letters should be sent out TODAY or early TOMORROW (ASAP).

(3) The long standing phenomena of Criminalization of Adoption, which is
being addressed by those developing a UNICEF letter
, to go to the UNICEF financial supporters and spokespersons for UNICEF. Gregory's most recent post, which describes the circular nature of the "documentation" (or lack of documentation and logic) and a summary analysis of the flaws in his "documentation" needs to be addressed to our Public Officials as well as UNICEF supporters.

(4) The more global HUMAN RIGHTS ISSUES inherent in how adoption programs are implemented. We will be providing a position paper shortly which addresses these concerns very specifically.

Hannah Wallace, Adoptions International - Philadelphia


The correct link for the status of the Hague is: http://www.hcch.net/e/status/stat33e.html

Posted by Kelly at 01:04 PM

May 30, 2003

5/29 Update from Asociacion Defensores de la Adopcion

Thursday 29 May 2003 Update (RE-posted with permission from Susana Luarca, Attorney at Law). A note to readers: Asociacin Defensores de la Adopcin is creating a website to answer many of the questions and to post these updates. We plan to link to this site when it becomes available and to note important news when it becomes available. We appreciate Susana's permission to temporarily repost this information as we feel it is important for as many people to read what is going on.

Dear Friends,

Here is this week's The Thursday Update containing
up-to-date
information including:

Part One
a. Foster Care at Private Homes
b. Hogares
c. US Adoptions not affected by Hague Convention
d. Central Authority - Post-March 5 Cases

and continued in Part Two
e. Delays in Release of Files from PGN
f. Adoption Law Project (UNICEF)
g. Constitutional Challenges
h. Pro-Adoption Educational Campaign

a. FOSTER CARE AT PRIVATE HOMES
In Guatemala, It is perfectly legal to take care of
other people's children in
private homes. No authorization is needed and nobody
supervises the thousands of
informal child-care centers that operate everywhere to
help working mothers. It
is only when the Police have reason to believe that
the children are cared for
international adoption purposes, that the generous act
of fostering a child
becomes "child trafficking", the house becomes a
"clandestine crib
house" and the children "need to be rescued from
adoption"

Over and over again the newspapers fill their pages
with pictures of uniformed
policewomen holding babies, taking them out of the
house where they were living
and of the foster mothers being captured and branded
as "part of the gang of
child traffickers". They never mention later that the
children were there
because their mothers signed an authorization, that
the adoption processes were
impeccable and that the poor woman who helped to
support her family by fostering
with loving care a couple of children, was released
after a nightmarish night
in jail, for lack of reasons to keep her locked.

Also not mentioned is the ordeal of the lawyers who
have to present many
documents and jump through every hoop that the Court
of Minors can come up with,
in order to regain custody of the "rescued children".

Before you start fretting for your child in foster
care, now that the PGN issued
the Acuerdo 53-2003 that leaves without effect the
Acuerdo 235-94, that
established the agreement that the PGN and the
Notaries reached in 1994 to
legally protect the foster care in private homes, let
me tell you that the
notification to the PGN given by the notary was the
best source of information
for the Police when they needed to raid foster homes,
because it stated the
address and name of the foster mother.

In my opinion, it is better what we are doing now. We
are having interviews
with the Police, Supreme Court, District Attorney
and Ministry of Interior,
to make them understand the legal reasons to respect
the right of the foster
mothers to have two children in their homes and to
instruct their enforcment
people to respect the law that allows this.

We worked together to form an emergency committee of
twelve lawyers to be on
call if there is a raid, which we think will help make
the law enforcement
officers respect the foster mothers and the children.
This is the first time
that something like this is being organized and I am
sure that it will be more
effective than the "aviso" to the PGN, that not even
the PGN social worker
honored, two weeks ago. We are working hard on this,
and time will tell how
effective our efforts are.


b. HOGARES
The hogares or private orphanages are rarely harassed
by the Police, because
there is no press coverage for "finding children for
adoption" at a
temporary home for children for adoption. The fact
that hogares insist upon
having a director and a lawyer at hand discourages the
Police from harassing
them. And of course, they have all their documents at
hand, as well.


c. THE US ADOPTIONS SHOULD NOT BE AFFECTED BY THE
HAGUE CONVENTION

I hope that you will join the letter campaign
requesting clarification to
clarify that Hague Convention should not affect the US
citizens' adoptions of
foreign children, because the US is a "third state"
(in the terms of the
Vienna Convention) because it has yet not ratified the
Hague Convention.

It would be good if you send a request for this
clarification to the US Consul
in Guatemala. (not to Guatemalan authorities) We
already sent the information
to INS Director Roy Hernandez at the US Embassy in
Guatemala.

Today I had a brief conversation with Mr. Epifanio
Monterroso, director of the
Central Authority. I asked him why they applying the
Hague Convention to
adoptions by US citizens and explained our position.
He answered that they were
studying the information that we supplied him about
that issue and, if they
realized/agreed that we were correct and that they
were making a mistake in
interpretation, they would correct it right away.
Therefore, a little pressure
form the US consul could help them to make that
realization sooner. Keep those
letters and e-mails going, please. I will post a
Sample Letter in the next day.

d. CENTRAL AUTHORITY - POST- MARCH 5 CASES
The Central Authority, after several months of being
appointed by the State as such, is still trying to
figure out the way to implement the Hague Convention.
The cases that are after March 5,are starting to
pile at the new offices of the Central Authority. The
law gives the PGN three days to give its opinion. The
PGN has no legal grounds to hold the cases due to the
implementation of the Hague Convention or to demand
additional information such as psychological tests of
any kind. Based on that, the lawyers are preparing a
legal resource called recurso de Amparo to get an
order from a Court to make the PGN to give the
opinion and to release the files. We thought that we
would not need to do that, but it seems that unless
we take legal action, nothing is going to happen.
We have made clear to the proper authorities that we
do not oppose controls, provided they are timely,
logical and based on law, not in the personal
interpretation/opinion/mood of whoever is in charge at
that moment.
According to the well known and respected adoption
professional Hannah Wallace, who has witnessed how
adoptions closed in other countries, and who was in
Guatemala for the past two weeks, this is the first
time that she sees an organized opposition to the
attempts of deprivatization of adoptions that in those
countries eventually have lead to a shut down. We
would not know about other countries, but we are not
willing to let UNICEF dictate our laws just to please
the international community at the expense of the
lives of the children who need a family in order to
survive. We are counting on all of you to keep that
option open for our children of Guatemala.

e. DELAYS IN RELEASE FROM PGN
There will be continued delays in the release of files
from PGN because Rudio
Lecsan Merida, the chief of the section that deals
with adoptions, only recently
returned from Holland where he attended a meeting
about the Hague Convention.
But now that he is back, he must attend to his other
job as well, which is the
presidency of the state-owned Housing Bank, which is
currently under
liquidation. Also, the staffing and furnishing of the
new offices for the
Central Authority have taken some of his time. The
cases are piling again on
top of every surface in his secretaries’ office. I
know how difficult the
extra waiting is for many of you, but it is so very
much worth it.

f. ADOPTION LAW PROJECT (UNICEF)
Congress is now in recess until August, but some
congressmen/woman are meeting
to discuss some matters. Last night, the TV news
reported that the adoption law
might be passed in one of those sessions. We talked
to several congressmen and they told us that it will
not happen. Sometimes the anti-adoption people spread
their messages fabricating news like that.

Today I spoke with the advisor to the President of one
of the commissions that
has to give its approval to the project before it is
approved as a law. I told
this person that I didn't know if I should take in
more children and try to
place them with families. His quick response was,
"You should do it,
absolutely".

When I told him about the TV news report, he said that
two days ago there was a
long working meeting, but there was no agreement about
the formal opinion that
the commission should give. However, he said he
didn'think the law could be
approved before Congress reconvenes on August 1, and,
that the project as we
heard/saw it in an earlier seminar had been reformed.
He didn't specify what
the reforms were.

There are several other, better, adoption law
proposals that have been presented
to Congress, but the pressure from UNICEF is making
Congress to consider only
this one.

If you want to read the lies that UNICEF tells about
adoptions in Guatemala go
to:
www.iss-ssi.org/Resource_Centre/Tronc_DI/ilpec-unicef_english_report_2000.PDF

The rebuttal that our lawyers group wrote will be
posted on our soon-to-be-live
website. When our website is ready, I will advise in
one of these Thursday
Updates on Guatemalan Adoptions.

g. Constitutional Challenges
Dates for final arguments on the constitutional
challenges: Friday May 30 - our
challenge to the accession of Guatemala to the Hague
Convention, and, May 22 we
had arguments for our challenge as to the appointment
of the PGN as Central
Authority.

The Constitutional Court has twenty days after those
dates to give its final
ruling. Their ruling is final, because there can be no
appeal. If the
challenges are upheld, Guatemala will have to stop
being part of the Hague
Convention with the first challenge, and the PGN will
cease to be the Central
Authority, if our challenges are upheld in either of
the cases.

h. Private Questions
I receive many questions from people who need
information or clarification. I
would love to have the time to answer you all, but I
simply can't and I
apologize for not getting back to you. Time simply
does not permit me to do so.
Perhaps as soon as this roller-coaster-Hague-time
passes, I will have more time
and be able to find a way to address those questions.
Our website should help in
this.

Best Regards,

Susana Luarca, Attorney at Law
Asociacin Defensores de la Adopcin
Guatemala City

Posted by Kelly at 11:57 AM

May 28, 2003

5/27 Update from Asociacion Defensores de la Adopcion

Tuesday 27 May 2003 Update (RE-posted with permission from Susana Luarca, Attorney at Law)

Re: "Preview of The Thursday Update" on Guatemalan
Adoptions

Dear Friends,

The chief of section of the PGN, Rudio Lecasa Merida
has assured the Guatemalan adoption professionals, the
US Consulate officers and the US adoption agencies,
that it is not their intention to hinder adoptions.
However, the PGN is taking measures that indicate
that it is attempting to eliminate private adoptions,
following the Hague Convention provisions. Instead
of creating state orphanages or establishing a
state funded system of foster care for the thousands
of children that roam the streets, the measures
that the PGN is trying to implement, affect only the
children who are being taken care of by private
persons or private institutions.

a) Foster Homes:
In Guatemala it is not illegal to take care of
children in private homes, but in order to protect
the foster mothers from false accusations and undue
harassment from the Police, the adoption lawyers and
the PGN reached some years ago, an understanding that
allows a woman to take care of two children en her
house. Without previous notice, the PGN revoked
today the Decree that allowed the foster care in
private homes. Tomorrow, the adoption professionals
will take legal measures to protect the foster mothers
from being harassed like some of them were, two weeks
ago.

The raids that took place two weeks ago were against
foster mothers who live in the same zone of
Guatemala City. The newspapers and TV news
exaggerated the number of children “rescued” and
neglected to tell that all the foster mothers had
their documents in order, including the notification
of foster care to the PGN. In one of the cases, the
mother was taking care of two children and her
daughter, who lived in an apartment in the second
level of the house, took care of other two babies.
Even though the Police and the MP understood that
there were two different housing units, the PGN social
worker who lead the raids, insisted in removing the
children from their foster mothers “for having more
than two children in the same house”. The children
were transferred to orphanages. Those who already had
a DNA test have been returned to the foster mothers
by the courts of minors. DNA tests are being done to
the rest of the children in order to establish,
without any doubt, the origin of the children.

b) Hogares (private orphanages).

The chief of the section of minors of the PGN, Denis
Alonzo and the Secretary of Social Welfare, Marilys
de Estrada, met today with the Magistrate of Minors,
Isabel Prem, to request her that the abandonment
decrees of children living in hogares be ruled by
the judges of Minors, appointing the Secretary of
Social Welfare as legal guardian of the children.
That would give such Secretary, the power to decide
who can adopt those children. The Magistrate of Minors
denied the petition.

c) Hague Convention implementation:
The Central Authority’s small office was moved today
to larger offices in the building of the PGN. We still
don’t have any information about the conference that
the chief of section of the PGN, Rudio Lecsan Mrida,
attended the last week at The Hague, Holland, with
the directors of The Hague Conference of
International Private Law.
The PGN as Central Authority in Guatemala for the
Hague Convention intends to apply the provisions of
such treaty to all adoptions, regardless of the
dispositions stated in the Hague Convention and the
Viena Convention, that limit the scope of appliction
to the contracting states. We must insist that the
Hague Convention does not apply to adoptions by US
citizens.

The legal grounds that support that allegation are
based on two international treaties:

1. THE HAGUE CONVENTION - CONVENTION OF 29 MAY 1993
ON PROTECTION OF CHILDREN AND CO-OPERATION IN RESPECT
OF INTERCOUNTRY ADOPTION.
2. THE VIENA CONVENTION The Treaty of Treaties .
Viena, May 23, 1969 U.N. Doc A/CONF.39/27 (1969),
1155 U.N.T.S. 331, entered into force January 27,
1980.

1. THE HAGUE CONVENTION
The Hague Convention, articles 2, 14 and 41 very
clearly establish that the convention shall apply only
to “contracting states”. The United States signed
The Hague Convention on March 31, 1994, but has not
ratified it. That information can be verified in the
website of The Hague Conference of Private
International Law, the multinational organ who helped
to give life to the convention on international
adoptions
http://www.hcch.net/e/conventions/text33e.html

2. THE VIENA CONVENTION
Ratified by Guatemala, this multilateral treaty
establishes the way the international treaties and
conventions should be interpreted, understood and
applied.
http://www.un.org/law/ilc/texts/treaties.htm

According to Article 2, that states the Use of Terms
“f) 'contracting State' means a State which has
consented to be bound by the treaty, whether or not
the treaty has entered into force; and
h) 'third State' means a State not a party to the
treaty;”

The United States is, without any doubt, a THIRD
STATE WITH REGARD TO THE HAGUE CONVENTION. The rule
that the Viena Convention sets for third states is the
following:
Article 34: General Rule Regarding Third States:A
treaty does not create either obligations or rights
for a third state without its consent.”

The United States of America must assert its position
as third state regarding the Hague Convention
instructing its diplomatic officers to deliver the
message to the Guatemalan Minsitry of Exterior
Relations, in order to protect the rights of its
citizens who are adopting a child from Guatemala,
from having their cases delayed innecessarily due to
the implementation of a convention that does not apply
to their cases.

Because time is of essence, we allow ourselves to
urge the US adoptive community, to support our
campaign, by writing letters to congressmen/women,
senators and State Department, requesting them to
clarify to the Guatemalan Authorities, the position
of the United States of America as a third state, with
regard to the Convention On Protection Of Children
And Co-Operation In Respect Of Intercountry Adoption.

Best regards,

Susana Luarca, Attorney at Law
Asociacin Defensores de la Adopcin
Guatemala City

Posted by Kelly at 01:16 PM

May 23, 2003

5/22 Update from Asociacion Defensores de la Adopcion Part 2 & 3

Thursday 22 May 2003 Update (RE-posted with permission from Susana Luarca, Attorney at Law)

And now, continued in Part Two of this week's The
Thursday Update
e. New Psychological Testing Requirements
f. Continued Outlook for Adoptions Processing
g. Commitment to You
h. New Pro-Adoption Campaign to be Announced

NEW PSYCHOLOGICAL TESTING REQUIREMENTS
The Central Authority today mentioned that from now
on, they will require that all adoptive family members
over the age of seven years must undergo psychological
testing. This obviously creates confusion such as (a)
what about family members who do not live at home,
possibly away at college or on their own?, and, (b) up
to what age?, and (c) what type of test?, (d) what
will PGN have as a criteria when reviewing such
tests? And, importantly at what date does this take
effect and what about files that are now in various
stages of processing?

We will be getting more clarification on this and will
post any new info in the next Thursday Update on
Guatemalan Adoptions. Meanwhile, don't panic - this is
just another small wrinkle in the process that can be
easily complied with albeit at an extra cost. Of
course this does nothing to remedy any perceived
'problems' with Guatemalan adoptions

CONTINUED OUTLOOK FOR ADOPTIONS PROCESSING
We are very confident that adoptions will continue in
Guatemala. Some people, based on their personal
experiences in Cambodia, have tried to establish
similarities between both countries. However, we see
only differences between the two circumstances.

In Cambodia it was the United States who closed their
doors to children adopted from Cambodia as a reaction
to the allegations of corruption, *even when* the
adoptions were legal/proper according to the Cambodian
legal system. In Guatemala, there never has been a
USA intention to close adoptions.
There are some delays, complications and uncertainty
BUT the source of these unfortunate issues is the
accession of Guatemala to the Hague Convention, a
convention that supporters say will facilitate
inter-country adoptions.

The Hague Convention does not apply to the United
States at this time. The United States consul has been
in close contact with the PGN, because
the United States would prefer to keep adoptions open
in Guatemala. The director of the PGN has told the
representatives of our lawyers group that the PGN has
promised the US representatives adoptions will be kept
open and fluid. This appears to be true, despite a few
delays, additional requirements and some general
confusion on their part.

COMMITMENT TO YOU
The Association in Defense of Adoption is in the
process of developing our website where we will post
theses Updates and available information,
clearly, professionally and with all the facts. Our
website will be a reliable source of up-to-date
information. The website will present this
information without being seen as having the intention
to mislead adoptive parents and/or those interested in
adopting from Guatemala about what is actually
happening in Guatemala.

Of course we cannot advise you to adopt or not to
adopt from Guatemala. But because we are in Guatemala,
on the ground here and next to where everything is
happening, we are in a position to provide the latest
and most reliable information. We'll give you the
facts, tell you about our efforts to keep adoptions
open and share with you the latest developments. We're
committed to realistic and practical information and
strategies that work. (Nice-sounding theories about
how adoptions might be done in an utopian ideal world
fall beyond the scope of our information service.)

NEW PRO-ADOPTION CAMPAIGN
We've just begun our first phase in raising funds to
initiate an aggressive, effective and widespread
pro-adoption educational campaign. I am sure you will
want to be a part of this to help assist us in keeping
adoptions open in Guatemala. Look for a future post
with info on how you can help.

Thank you to those who have personally expressed their
gratitude for "The Thursday Update on Guatemalan
Adoptions". Your comments are appreciated and
encouraging.


Best regards,

Susana Luarca, Attorney at Law
Asociacin Defensores de la Adopcin
Guatemala City

continuation.......PART 3
WHAT MAKES A CASE A "PRE-MARCH 5 CASE"?
Although this has been discussed before, here is a
reminder as to what constitutes a "post-March 5" case:
When the adoptive parents give a power of attorney to
a Guatemalan lawyer, the document itself has to be
legalized by the Ministry of Exterior Relations and
translated into Spanish. (If it is already in Spanish,
only the seals and legalizations
that are in other language must be translated). Then,
a notary has to make the document part of the
Protocolo. (Protocolo is the collection
of all kinds of deeds authorized by the notary,
written in a special sealed paper that is sold only to
Notaries by the Ministry of Finances). After the
document is inserted among the pages of the Protocol
Register and a deed is recorded by the Notary saying
that he/she has done so, then a copy of the deed in
the Protocolo page and of the foreign document and its
translation and legalization is presented to the
General Archives of Protocolos, to be recorded.

There, the document is reviewed, a fee is paid and a
seal is stamped in the last page. The seal states the
date and the number of record. That is THE DATE that
determines whether a case is pre- or post- March 5th.
The relinquishment by the birth mother or by the
person who has legal custody of the child must also be
dated pre-March 5. The relinquishment by the birth
mother is usually before the Protocolo seal date, but
both documents have to be dated before March 5th,
2003.

REGARDING THE PSYCHOLOGICAL REPORT:

This new requirement was told to the director of the
group of US adoption agencies who talked to one of the
lawyers of PGN. The lawyer told them that she
believed that everybody living in the household
(parents, children and relatives) older than 7 years
old has to get the report. Her opinion is not final
and we will look into that.

I talked to Elizabeth de Larios (advisor to Rudio
Lecsan Mrida,chief of section of PGN) this morning
and asked her about this. She said that it is
ridiculous, because the parents are approved in their
country and that is what the Hague Convention is
about,to accept the other countries' procedures
without having to repeat them in the country of origin
of the child.

Ths applies only to post March 5 cases and only to
those cases of adoptive parents whose countries have
ratified the Hague Convention.

The United States has not ratified the Hague
Convention, but its provisions could be applied to US
adoptions if you, the United States citizens, don't
do something soon.

We wll talk about this in my next post.


Best regards,
Susana Luarca
Attorney At Law,
Asociacin Defensores de la Adopcin

Posted by Kelly at 11:15 PM

5/22 Update from Asociacion Defensores de la Adopcion PART 1

Thursday 22 May 2003 Update (RE-posted with permission from Susana Luarca, Attorney at Law)

Re: "The Thursday Update" on Guatemalan Adoptions

Dear Friends,

Here is the first part of this week's The Thursday
Update containing up-to-date
Information.
a. Clarification of Post-March 5 Cases
b. New Birthmother Interviews
c. What Makes a Case a "pre-March 5 Case"
d. Delays in Release of Files from PGN

CLARIFICATION ON POST-MARCH 5th CASES
Ethica's president, Trish Maskew posted incorrect
information earlier
this week regarding post-March 5th adoption cases and
we want to clarify
the actual situation. Maskew stated that ... it is
reported that several cases which were
considered filed post-March 5 have been processed by
the PGN. Because this statement could be interpreted
as if the PGN is accepting post-March 5 cases and
giving them its approval, we feel obligated to clarify
that it is not so. The Procuradura General de la
Nacin (PGN) has two sections and now, a new office
which is the Central Authority, for the Hague
Convention purposes. The section of the PGN that gives
its approval for adoptions
is the Procuraduria section. If a post-March 5th
adoption is presented to PGN, it will be assigned to
one of the lawyers and they will make an objection
which will be failure to comply with the Hague
Convention provisions.

Such a 'decision' by that PGN lawyer should not be
understood as the
file being processed. It is simply another type of
rejection. We have
tried to convince the Chief of Section that the PGN
lawyers should also
specify any other reason to object, along with the
objection they may
have about the Hague convention. He did not accept our
helpful
suggestion which would have helped keep things moving
more smoothly and
quickly.

BIRTHMOTHER INTERVIEWS
If the adoption file is presented to the Central
Authority, a date for
the interview of the birth mother will be set. To
date, the few mothers
who have been interviewed have complained about the
interviews, which
have been similar to the ones conducted by the US
embassy, with the same
lack of respect for the dignity of the mothers. Our
lawyers group will talk to Mr. Epifanio Monterroso,
director of the Central Authority, to present a motion
to instruct the people who
conduct the interviews of the birthmothers to do so
with utmost respect
and courtesy.

The Central Authority said that after the birthmother
interview, they
wantto see the children being adopted the following
week. We will not oppose that.

My impression is that the Central Authority is playing
games to buy time
while the Constitutional Court rules on the legal
challenges we
presented in the lawsuit. The more they show that they
have no serious
plans to implement the Hague Convention, the more
confident we feel that
the challenges to Guatemalan's accession to the Hague
Convention will be
upheld. The Court is scheduled to hear last arguments
on the
constitutional challenge on May 30. After that date,
the Court has 20 days to rule on the case.

DELAYS IN RELEASE OF FILES FROM PGN
Many adoptive parents have been asking why there is a
delay of the
release of the files being subjected to the approval
of the PGN.
Apparently, Rudio Lecsn Mrida, who has other duties
besides the PGN
(he is on the board of directors of a bank that is
being liquidated and
also fills in for the Attorney General whenever
needed) has been
extremely over-busy in recent weeks.
Last week I went to Mr. Merida's office (I know him
well) and talked to
the two lawyers who assist him, Elizabeth de Larios
and Mary de Mrida.
Both were very nice and kind, but commented that they
barely have the
opportunity to speak to Mr. Mrida because he has been
so busy lately.
(I doubt that regarding Mary, because she is his wife)

In Merida's office it was easy to see piles of files
on top of every
surface in Mridas secretaries office. Later, our
sources informed us
that Mrida signed many of files very late Thursday
and Friday night. We
expect that those files will be returned to the
notaries very soon and things will get moving along
once again.
If the PGN's comments on your file indicate that they
want additional information, your lawyers will have to
supply it and present the file
back to the PGN once again. Merida went away on a
trip but in this
case someone else signs the files, so his trip
does not necessarily mean that everything gets
completely stalled. He is expected to be back in his
office on Friday May 23.

Posted by Kelly at 11:11 PM

May 22, 2003

5/15 Update from Asociacion Defensores de la Adopcion

This is a re-post (originally, posted on the St. Johns Guatemala Adopt list) with permission from Susana Luarca, Attorney at Law:

Re: "The Thursday Update" on Guatemalan Adoptions

Dear Friends,

The Current Situation
Yesterday, a large group of adoption professionals
attempted to arrange a meeting with the PGN Director
about the raids of the foster homes, where 13
children were "rescued". The Director only agreed to
meet with three representatives of the larger group.
The newspapers reported today that a total
of 16 children were "rescued" from "clandestine"
foster homes; no names were given.

It was explained that the raids were done by a social
worker in the Child Section of the PGN, but that she
had no authorization to do so and measures were
being taken to discipline her. The 16 children were
transferred to various orphanages.

The purpose of these raids has been always the same:
to discredit adoptions. It seems that every time an
adoption law is being discussed in Congress, someone
with a little power asks the police to raid houses
where children are appropriately cared for during
their adoption process. The newspapers" headlines
take care of the rest, trumpeting the "network in
illegal adoption" or similarly misleading words. As it
has happened before, the lawyers will prove now the
origin of these children, the birthmothers will give a
deposition and the children will then be returned to
their foster mothers.

Dr. Valladares, the congressman who proposed the
current adoption law project - which in its current
form we oppose - resigned two days ago from the FRG
(leading political party of President Portillo). Today
the newspapers report that he claims the government,
which also employed his wife and several other
relatives, fired all of them as retaliation for his
resignation.

Congress will resume sessions in August, when
everyone"s full attention will be focused on the
elections that will take place in November. I would
venture a guess that the adoption law will not be a
priority at that point.

The Director of the Central Authority established that
the birth mothers now have to be interviewed, to
comply with the Hague Convention. The first
interviews will start today. At this point, it doesn"t
seem as if anything else will be required, but only
time will tell.

The Director of the PGN, Rudio Lecs n M‚rida has
not signed off on many of the pending adoption files,
and they are piling up on top of his desk. It seems
that he has been "too busy" with other matters.

Our Continuing Struggle
We adoption professionals are working hard and working
constantly to keep adoptions open. It is hard and
unpaid extra work but we do this because we know
that there is no other option but adoption for many of
the needy Guatemalan children. Unfortunately, there
seems to be a consistent and alarming lack of
concern on the part of the government for the needs of
these children; this includes a lack of concern and
plans for the many who will be "stranded" if
adoptions slow down or shut down. There is virtually
no funding to care for poor children who are abandoned
or are without parents and homes.

After the Adoption Law Seminar last week, I spoke with
Gladys Acosta, the Peruvian UNICEF delegate. I told
her that the adoption law project that she had
just praised so highly, was nothing more than a way to
shut down adoptions. I also asked her if UNICEF was
going to fund the orphanages and pay for foster
mothers, because without the reimbursement money and
income from adoptions, they would not be able to
support the children. She answered that taking care of
the unwanted children was not the concern of UNICEF,
but of the local government. She claimed that UNICEF
was only interested to see that Guatemala passed the
laws that the international community expected,
according to the international
treaties that Guatemala has agreed to be a party to.

Accepting Referrals
For those who are undecided about accepting a referral
and have asked my opinion, I tell them that it is a
very personal decision. However, if it were my
decision, I would not hesitate for a moment to accept
a referral from Guatemala at this time.

Guatemala is still a country where adoptions are open
and the children have, as a general rule, few major
health issues and the foster care is good. Having said
that, there is always a risk, and therefore always a
few exceptions. Intercountry adoption is a very
complex process that involves two different
governments' laws, involves many people and sometimes
includes the challenge of dealing with various types
of problems. Added to this is the uncertainty of
ever-changing laws, rules, practices and regulations
all of which are out of your, and our, control during
the adoption process.

Those who start an adoption process must have
realistic expectations and a healthy dose of patience.
However, as Guatemalan adoption professionals, we are
quite confident that adoptions will not close,
especially in the near future.

If you read the archives of this Adoption List,
beginning in May 1997, you will find that the same
concern about the closing of adoptions has been
looming and discussed since that time. And, even
before that time the closing of adoptions
was an ever-present concern and ongoing discussion.

To have kept adoptions open and at the same time
increased the ethics and integrity of the process (ie,
DNA testing among others) is continuing and
present proof that the hard work of many adoption
professionals has paid off. Many times it has also
been evident that the faith and passionate help of
adoptive parents has also helped to save adoptions
from being shut down by the sometimes under-handed
work of several anti-adoption forces.

Thank you to all who have been a part of this valiant
struggle. May we all keep working together to help
provide a better life to the always precious, but
sometimes unfortunate, children of Guatemala.

Sincerely and with Best Regards,

Susana Luarca
Attorney at Law
Member of the Asociacion Defensores de la Adopcion
(and very proud of it)

Posted by Kelly at 07:33 PM