By Michael Montgomery
Five years ago, the United States passed into law the Hague Convention on Intercountry Adoption, a treaty aimed at bringing uniformity, transparency and accountability to international adoptions. The convention was signed in 1993 following years of negotiations by dozens of countries, including the United States.
Under regulations drawn up by the U.S. State Department but not yet implemented, any group providing adoption services will be required to have government-approved accreditation, a written policy prohibiting child-buying and a fee schedule detailing each part of the adoption process. In addition, the regulations emphasize the importance of obtaining accurate medical records for orphans. Agencies could lose accreditation for not following the rules and suspected child traffickers could face criminal prosecutions.
The proposed regulations have been welcomed by many adoption experts, family and child advocates and some adoption agencies. But there are concerns.
First, the treaty only binds countries that have ratified the convention. So far, that does not include the countries providing the biggest number of orphans for American families, including China, Russia and Guatamala.
According to Joan Hollinger, an adoption specialist at Boalt Law School at the University of California at Berkeley, another concern involves adoption agencies. "There is fear that these regulations will hold (U.S.) adoption service providers responsible domestically not just for good things but for their failures and for the misbehaviors of foreign nationals in the sending countries," says Hollinger. For example, under the proposed regulations, an adoption agency could face criminal or civil liability for failing to disclose vital medical information about an orphan to an adoptive family. "They essentially don't want to be held accountable," says Hollinger. "They would like to say that they did their best under the circumstances or that they can do no more."
The problem, says Hollinger, is not necessarily in the agencies, but in their reliance on attorneys, social service agencies and local facilitators in the countries where the orphans are living. "Even the most reputable agencies in the U.S. are reluctant to become accountable for these kinds of people,"
Summary of the Provisions of the Intercountry Adoption Act of 2000 (IAA)
The State Department is to establish and oversee the process of accreditation/approval of U.S. adoption service providers, and will designate at least one non-federal qualified accrediting entity to perform the actual Convention accreditation/approval function pursuant to published standards and procedures.
- The State Department and Department of Homeland Security (DHS/CIS) will establish a case registry for all incoming and outgoing adoptions covered by the Hague Convention as well as non-Convention intercountry adoptions.
- All home studies on U.S. prospective adoptive parents must be approved by a Convention-accredited adoption agency.
- The State Department must report annually to Congress on the activities of the U.S. Central Authority, including specified data and information.
- With specified exceptions, adoption services for Convention adoptions may be offered and provided only by (1) accredited agencies (non-profit) or (2) approved persons (other agencies and individuals), by (3) smaller agencies qualifying for registration for temporary accreditation and (4) adoption service providers acting under the supervision and responsibility of an accredited agency or approved person.
- The Act lists specific requirements/standards for Convention accreditation and imposes essentially the same requirements/standards for Convention approval.
- Convention accreditation or approval is subject to possible suspension, cancellation, or non-renewal if identified deficiencies are not corrected in a timely manner.
- Permanent and temporary debarment of an adoption service provider is possible, and an agency or person charged with certain egregious and specified violations may be subject to civil or criminal penalties.
- The Act provides for certain certifications to be made in support of the requirement that Convention adoptions be accorded recognition.
- Convention adoptions will be recognized and given effect in the United States according to the Hague Convention.
- The Immigration and Nationality Act (INA) is amended by providing for a new category of children who are qualified to receive immigrant visas either because of their Convention adoption abroad or their placement abroad with U.S. prospective adoptive parents for Convention adoption in the United States.
- Children residing in the United States and being adopted by persons residing in another party country may be adopted in the United States or placed in the United States for adoption in the receiving country only if the appropriate local court in the United States determines that the requirements of the Convention to safeguard the child and the parents involved have been met.
- The Act provides for the preservation of records about Convention adoptions held by the Department of State and the Department of Homeland Security (USCIS) under regulations to be issued by the Department of State.
- Convention adoptions made among party countries before the Convention enters into force for the United States are to be accorded recognition in the United States.