COHA - Guatemalan Adoptions Suspended by Overseas Crack-Down
Council on Hemispheric Affairs
Guatemalan Adoptions Suspended by Overseas Crack-Down
Since 2003, Guatemala has been attempting to upgrade its controversial intercountry adoption system, which has operated under a cloud of suspicion in recent years. In 2005, the Department of State warned U.S. families against the wisdom of adopting from Guatemala. In late 2007, several countries suspended such adoptions until Guatemala ratifies international accords to bring itself into compliance with the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption. Guatemala is gradually improving its performance as a source country, but not quickly enough for some of its critics. According to Rhiann Wynn-Nolet, the Inquiry Coordinator with MAPS Adoption and Humanitarian Aid:
Historically, [Guatemala] was appealing [for intercountry
adoptions] because infants were available and were typically healthy, and the process was quick enough that babies could join their adoptive families at a younger age than with many other international programs… Guatemala in the past offered a relatively quick process (under a year at times).
The unregulated Guatemalan intercountry adoption process made it an ideal source country, as adoptive parents could add to their family expediently with children of an early age, and since younger children could be assimilated faster into their new family, and begin to relate to what was a novel culture more easily than might be the case with older children. The increasingly favorable outlook on using Guatemala as an originating country is visible in the number of immigrant visas issued to U.S.-adopted Guatemalan orphans between 2002 and 2006. In 2002, over 2400 visas were issued, and just four years later that number had increased by 170 percent to 4135.
The reason why other Latin American countries do not draw as much attention for their adoption practices by U.S. citizens, according to the U.S. Department of State, is that they are believed to have stricter requirements mandating residency, ages of parent and child, and require travel to the source country. Mexico requires that potential adoptive parents be in Mexico for three months prior to finalizing the adoption. Belize and El Salvador both require that the adoptive parent live in the source country for one year. Costa Rica insists that both adoptive parents travel to the source country to appear before a judge. In Colombia, single men and women are only allowed to adopt children over the age of seven, and in Panama, sibling groups must be maintained, which demands a greater financial and emotional commitment by potential adoptive parents. For these reasons, adopting from the previously unregulated Guatemalan system was an extraordinarily attractive proposition.
The Galyean family adopted an infant named Benjamin from Guatemala through Christian World Adoption, which has offices in North and South Carolina. The Galyean family’s facilitator said of Benjamin’s birth mother:
[She] already had five children to care for. She had no
job. She had no husband. When it came time to deliver Benjamin, she found herself in the community latrine…After giving birth to a tiny four pound boy, she struggled with whether to ‘throw him in the hole or not’” (Original Source).
In a country ravaged by incessant violence in recent decades as a result of a bitter ongoing conflict, costing over 200,000 lives since 1969, and plagued by endemic poverty, intercountry adoption was long considered providing the best prospects for the welfare of orphans or children like Benjamin whose families were unable to provide for them. In fact, Philip Sherwell of the British newspaper, the Sunday Telegraph, reveals that “one in 100 Guatemalan children grow up in the US,” (4/9/2007), showing the popularity of this practice.Until recently, the requirements that prospective adoptive foreign parents had to affect a Guatemalan adoption were extraordinarily lenient. Age restrictions were set by adoption agencies, not the state, because historically there has been no central adoption authority within Guatemala; nor is there an age limit for adoptive parents. The recommended minimum age is 25, and some of the more stringent adoption agencies require that the youngest parent of a couple be no more than fifty years old. The same aspects that made adopting a Guatemalan child attractive to foreigners may also have been the very factors that has allowed for the increasing levels of illegal activity surrounding intercountry adoptions. It was not too much to say that the adoption process was overwhelmed by lawyers, notaries and buscadoras—also known as ‘facilitators,’ who often shockingly commercialized the process in order to serve their greed.
Adoptions Provided at any Cost
Prior to the reforms now being enacted that should better regulate the process and hopefully, will decrease the opportunity for illegal schemes to sprout, the same lawyers often represented both the prospective foster families and the infants or children to be adopted. This, it has been argued, presented an intolerable conflict of interest. The buscadoras sometimes resorted to unethical measures in order to find babies for adoption. These ‘facilitators’ worked for the adoption lawyers, and found mothers who had just given, or were about to give birth. They would convince the mother to give up the child for adoption, (sometimes via coercive methods) collecting a fee for each baby they located and delivered to the lawyer to be sped into adoption.
According to TV’s John Stossel’s article of 6 February 2008, fees for international adoption have been cited as being as high as the $25,000 paid by some prospective U.S. parents (“USA Makes Adoptions Harder”). There is wide doubt over the legitimacy of such a price tag on what most would agree should be a profit-free process. No adoption expenses could possibly add up to the aggregate amount charged by lawyers and adoption agencies. The Carolina Hope Christian Adoption Agency places the fee for international adoptions from Guatemala at close to the $25,000 figure, claiming that it “includes foster care and the agency fee…nearly all of your costs associated with the adoption except your homestudy, CIS fees, DNA testing, and your child’s American visa.” According to Commonwealth Adoption, another intercountry adoption agency, the fees not enumerated here could be significant. The Citizenship and Immigration Services (CIS) fee is $545 plus $70 for each adult in the adoptive household for fingerprinting services. International Adoption Net, an adoption agency operating out of Colorado, lists some of these miscellaneous fees as follows: DNA testing to verify that the birth mother is in fact the one relinquishing custody of the child, costs $350; a medical exit exam to re-verify the child’s health costs $85. A visa for the child costs $380; travel expenses and dossier preparation costs between $200 and $500; finally, homestudy—wherein a counselor observes the adoptive parents’ home and decides whether it is suitable for the child—can cost anywhere from $200 to $1200.
Certainly, not every adoption lawyer is unscrupulous, and not all buscadoras acted solely for mercenary reasons, but the amount of illegal activity that had surrounded Guatemala’s adoption system has been unacceptable. What is firmly known is that not all adoption lawyers and buscadoras have acted out of humanitarian motivations. For example, according to a BBC report on December 19, 2007, Ana Escobar, a twenty-six year old living in Guatemala City, was working in a shoe store when a man and two women stole her six-month-old daughter. Detailed in the same report, Ulga Angelica Lopez, a 31-year-old mother, also from Guatemala City, was at work when a woman kidnapped Ulga’s infant daughter, Arlene Escarlet, from a relative’s home. In each of these two instances, the authorities were at best indifferent toward the mother’s plight, even accusing Ulga of selling her daughter.
Reform on the Horizon
For the past four years, the Guatemalan government and the country’s Constitutional Court have attempted to correct these human rights violations by first acknowledging their existence and then ratifying the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Adoption Convention). Initially, the Constitutional Court, under heavy pressure from those profiting from the status quo, found that acceding to the treaty was unconstitutional. Eventually, Guatemala ratified the Hague Adoption Convention and is presently enacting internal adoption reform measures. The Guatemalan government is also creating a central authority to oversee adoptions, and dismantling the previous system, which almost invited turpitude.
The current controversy over Guatemalan intercountry adoptions is rooted in both a newfound concern for the children’s well-being and the profound disappointment of families who were caught midway through the adoption process, who have not been able to gain custody. Active cases are now in limbo until the new procedures are institutionalized, because adoption reform laws did not automatically grandfather in all of the cases that already were underway. Allowances for this crack in the system have recently been made, but the process is still largely untested and uncertain.
Despite allegations that $25,000 is too high a fee for intercountry adoptions, reform threatens to make childcare for orphans and abandoned children financially untenable. Part of the previous, exorbitant fee went toward paying private orphanages to care for the children during the adoption process. Since the state does not have a comprehensive welfare system that includes these services, the private orphanages are forced to comply with that role. However, with the adoption process now being centrally controlled by the government, allowances for the costs associated with looking after potential adoptees is being ignored by President Colom’s administration. According to Susana Luarca, the vice president of the Asociación Defensores de la Adopción, “to the best of my knowledge, there are no attempts by the new government to create a substitute welfare system to supply to the private orphanages the funds that adoptions will no longer provide.” The Guatemalan Embassy’s only response thus far on the subject was that the Central Authority has received funding between one and two million dollars to assist in changing the international adoption process.
International Law and Adoption
The United Nations Convention on the Rights of the Child (CRC) is an agreement signed by a majority of the world’s nations. Guatemala signed the UN document on 26 January, 1990 and managed to ratify it on 6 June, 1990. Therefore, even if Guatemala did not have a central authority for adoptions—as required by The Hague Adoption Convention—laws could already have been in place to protect against infant trafficking. Possibly, the delay in drafting the appropriate national laws lies in Guatemala’s faulty assumptions. According to www.guatadopt.com, “Now Guatemala domestically knows it needs to make [its] system Hague compliant. That had to happen…or else the U.S. would end adoptions once we (the United States) ratify, which I believe will be in February or March of 2008…” In fact, the U.S. Department of State verified that the United States ratified the Hague Adoption Convention on 12 December 2007, and that the convention would go into effect for the U.S. on April 1, 2008. (Original Source) However, according to a Joint Council on International Children’s Services report by Meghan D. Hendy, the United States first signed the Hague Adoption Convention back in 1994 and only recently completed the necessary legislative process to ratify the document. (http://www.jcics.org/JCICS%20Hague%20Overview%20Article.pdf) For a country such as Guatemala, in which venal lawyers, notaries and ‘facilitators’ were fully cognizant of the huge payoff which could be personally extracted from the process these people, may also have collaterally welcomed what they hoped would be a benign future for the children they sent to the U.S. by means of the adoption process. But the United States’ 13-year odyssey to this point must have instilled in Guatemalan authorities a degree of skepticism that Washington ever intended to ratify the new arrangements. But Washington’s ultimate ratification of the convention, and now its temporary suspension of intercountry adoptions with Guatemala, have forced the Central American country to both make changes in their adoption process and to be prepared to cope with an increase in the number of infants who are not adopted, considering that it now lacks the presence of an adoption safety valve.
The difference between simply wanting to have a Hague compliant adoption system and actually attaining it can be eliminated by erecting an entirely new bureaucratic structure to regulate the adoption process by a more enlightened fixed procedure instead of being largely motivated by profit, as has been true in the past. The current dispute over reforms, though conveyed in some reports as proof positive of Guatemala’s allegedly corrupt adoption system having to face new realities, actually could be the result of international pressures on that country. The United Kingdom, Germany, Canada, Spain and the Netherlands all have filed objections regarding Guatemala’s adherence to the Hague Adoption Convention (Sunrise Adoption, Summer 2007). Since then, as a precautionary move, these countries have suspended intercountry adoptions from Guatemala; the United Kingdom approved this course of action on December 6, 2007 (Department for Children, Schools, and Families, Original Source). The problems with Guatemala’s adoption system can be considered as being more than just of an internal nature, because it deals with corruption, opportunistic intermediaries and lax central control. However, international pressures have also played a role in how far the toleration of corruption and venality within a country undermines and sullies what could be an important and beneficial social institution.
This analysis was prepared by COHA Research Associate Bettina Huntenburg
March 13th, 2008