Michelle Bernier-Toth, Director
Office of Children’s Issues
SA-22, Room 2100
Fax: 202-312-9741
Dear Ms. Bernier-Toth,
We are contacting you to express our increasing concern over
recent developments regarding adoptions of Guatemalan nationals by U.S.
citizens since Guatemala acceded to the Hague Convention on Intercountry
Adoption on March 1, 2003. On
1) Intercountry
adoptions will not be suspended;
2) All cases filed with the Central
Authority from March 5 through
3) Inquiries regarding new cases should be
directed to the Central Authority.
The U.S. DOS then refers people to the PGN website, which is
in Spanish, for the new procedures.
While we are pleased that the Guatemalan government has
expressed its intent to continue processing intercountry
adoptions and are grateful for the efforts that have been undertaken to avert
an official suspension of adoptions, the situation is far from resolved. The legality of the new PGN regulations is
the subject of much debate and will certainly be challenged in the Guatemalan
courts. Further, even in the unlikely
event that these new regulations are deemed legitimate under Guatemalan law, it
is unclear whether they should apply to adoptions by U.S. citizens since the
U.S. has not acceded to the Hague Convention.
There also exists considerable confusion and concern as to how these
stated regulations might affect pending adoptions. Therefore, we call upon you
and your colleagues to take specific actions to assist the many
We are told that the Consul General in
Please be clear, we are not requesting that the State
Department become directly involved in the adoption process of another country.
Instead, we are requesting that the U.S.
DOS and the U.S. Embassy work on behalf of U.S. citizens to continue performing
adoption-related duties; to solidify the U.S. position as a “third party
state” as defined by the Vienna Convention of 1969; and to facilitate a
dialogue between relevant parties in order to provide clear information to U.S.
citizens involved in intercountry adoption in
Guatemala. Specifically:
We do appreciate the complexity of the current diplomatic
situation. As you no doubt understand,
the legality of Guatemala’s accession to the Hague Convention on Intercountry Adoptions and the assignment of the PGN as the
Central Authority are currently under review by the Guatemalan Constitutional
Court. The new PGN procedures, although
vague, appear to include extensive changes to fundamental doctrines of
Guatemalan law – including compromising the notarial
legal process (a basic and vital element of the Guatemalan legal process and
the most common method of processing relinquishment adoptions); limiting a
birthmother’s ability to make an adoption plan for her child; and initiating
the deprivatization of foster care and hogares in favor of a handful of orphanages that are
accredited but not funded by the Guatemalan government. These changes are believed by experts to be
in violation of existing legislation, and will likely be the subject of further
litigation. The PGN has asserted that it
is authorized to change existing Guatemalan adoption regulations without
Congressional action by Articles 44 and 46 of the Guatemalan Constitution,
which specify that Human Rights treaties take precedence over existing internal
laws. The PGN claims that policies and
procedures based on the Hague Convention are therefore Guatemalan law and
should apply to adoptions by citizens of all countries including those that
have not acceded to the Hague Convention. The PGN insists that this action does
not constitute the application of a treaty to a non-contracting (third party)
state.
This interpretation is extremely problematic. The Hague describes itself as a Conference on
private international law. The Hague is not a human rights organization
and does not enact human rights treaties. Its purpose is “to work for the
progressive unification of the rules of private international law” (http://www.hcch.net/e/faq/faq.html). The fact that the Hague Convention does not
constitute a human rights treaty is also acknowledged by Sn.
Gabriel Aguilera Peralta, Vice Minister of Foreign Affairs of Guatemala (public communication addressed to Sn Acenciado, 20 December
2002). Because both the Hague
Conference and members of the Guatemalan External Affairs Ministry acknowledge
that the Hague Convention does not pertain to human rights, it follows that the
“regulations” established by PGN and posted on July 1, 2003 cannot supercede
laws legally enacted in Guatemala as these new regulations are directly and
solely related to implementation of the Hague.
Consequently, adoptions by U.S. citizens should not be subject to these
regulations since the regulations relate directly to implementation of a treaty
to which the U.S. has third party status under the Vienna Convention. Adoptions of Guatemalan children by U.S.
nationals, therefore, can only be processed legally under the existing laws of
the Republic of Guatemala as enacted by its Congress.
In our view, it is incumbent upon the U.S. DOS to assert the
third party status of the U.S. in relation to the Hague Treaty on Intercountry Adoption.
A statement written by Sn. Guillermo Saenz de Tejada Herrera, an administrator in the Guatemalan Ministry
of Exterior Relations, specifically recognizes that the U.S. is not yet a party
to the Hague Convention (public statement, 2 April 2003). However, the PGN has implied that “third
party status” will not be automatically granted in processing intercountry adoptions by applying the same regulations to
contracting and non-contracting nations, according to its web site (http://www.pgn-guatemala.com/). Due to these conflicts, we believe it is
critical that the State Department and the U.S. Embassy assume an active role
in representing the interests of U.S. citizens by seeking clarification, taking
appropriate action on our behalf, and serving as a central source of
information for U.S. citizens on new developments. We are not in a position to accomplish these
things on our own.
Finally, we wish to express our ongoing commitment to
protecting the best interest of the children of Guatemala. We hope that you will join us in this effort,
not only to assist us in ensuring that our children come home, but also to
promote the well-being of all of the children of Guatemala. The PGN seems to be dismantling the current
process without providing reasonable alternatives to protect the best interests
of the children, which is causing a great deal of confusion and anxiety to
adoptive parents and concerned citizens.
Since June 14, over 4,400 U.S. Citizens and friends have signed a petition
related to intercountry adoption in Guatemala. While the intended audience is UNICEF, which
has actively lobbied Guatemala to severely limit intercountry
adoptions, the petition provides an explanation of the existing adoption
procedure in Guatemala and will give you some idea of the measure of support
for this process. In general, it is our
position that any modifications to the Guatemalan adoption process should be
implemented by their Congress in a
gradual, cautious, practical and responsible manner. We have attached a copy of the petition for
your review. It can also be found at:
http://www.petitiononline.com/guatpos/petition.html.
We sincerely appreciate your prompt attention to this matter
and eagerly await your response. We
respectfully request that you communicate your decisions regarding our request
to the adoption community. The welfare
of hundreds of future U.S. citizens and their adoptive families are at
stake. If you have any questions, we can
be reached at ***********
Sincerely,
cc: Steve Vann,
OCI, U.S. DOS
Congressional Coalition on Adoption