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/
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.
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
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!
The ADA has issued a new post on their website. You can read it here: http://www.adaguatemala.org/English/news/
{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
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 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 ProcuradurÃa 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 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 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".
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 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 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 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 Procuraduría 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 Año Nuevo y muchas bendiciones a todos!
Susana Luarca, Attorney at Law,
Asociación Defensores de la Adopción
(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 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
Associación Defensores de la Adopción
(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 don’t 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 Mérida 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 Procuraduría, 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 don’t 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 (Procuraduría 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
Associación Defensores de la Adopción
(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 (Procuraduría 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
Asociación Defensores de la Adopción
(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. Let’s give them our best shot!
Best regards,
Susana Luarca
Attorney at Law
Asociación Defensores de la Adopción
Guatemala City.
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 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 mother’s 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 can’t deny it.”
Best regards,
Susana Luarca
Attorney at Law
Asociación Defensores de la Adopción
Guatemala City.
(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 with permission from Susana Luarca, Attorney at Law).
THE CONSTITUTIONAL COURT RULING
was published today in El Diario de Centro América, 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
Asociación Defensores de la Adopción,
Guatemala City.
(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 Lecsán Merida Herrera, chief of section of the Procuraduría, 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 América, 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
Asociación Defensores de la Adopción,
Guatemala City.
(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 América, 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 América, 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,
Asociación Defensores de la Adopción. Guatemala City
(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 (Unión 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 Arévalo Valdés. 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 Valdés -, 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, Asociación Defensores de la Adopción
(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 Lecsán Mérida 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 UNICEF’s 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, Asociación Defensores de la Adopción
Guatemala City.
(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,
Asociación Defensores de la Adopción
(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 Hernández 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 González and Rudio Lecsán Mérida Herrera, director of the Procuraduría 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 don’t 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
Asociación Defensores de la Adopción
(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