Guatemala--February, 2003
Ethica is a non-profit education, assistance and advocacy group, which seeks to be an impartial voice for ethical adoption practices worldwide. In order to maintain our impartiality, Ethica does not accept monetary donations from agencies or other child placing entities, nor are any of our managing Board of Directors currently affiliated with adoption agencies. Ethica strives to develop organizational policy and recommendations based solely on the basic ethical principles that underscore best practices in adoption and speak to the best interest of children. Ethica believes that all children deserve permanent loving homes, preferably within their family of birth. When remaining with their birth families is not possible, and children cannot be adopted by families within their country of birth, intercountry adoption may be in the child's best interest.
Ethica supports the ideals embodied in the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption. It is imperative that countries take measures to ensure that decisions about a child's future are made in their best interests and that adoptions take place in an environment that provides adequate safeguards to the children, and their families. It is equally vital that adoption professionals, both in the United States and abroad, continue to evaluate current adoption processes and identify areas where protections to children can improve.
On November 26, 2002 Guatemala ratified the Hague Convention, and the Convention is due to enter into force in Guatemala on March 1, 2003. In recent years, much attention has been focused on problems within the intercountry adoption process in Guatemala, and Ethica commends the Guatemalan government for the interest it has shown in improving its process. The process of bringing a country's adoption program into compliance with the Hague Convention can be quite daunting, as witnessed by the years-long implementation process undertaken by the United States. Crafting a system which simultaneously balances the pressing needs of children and creates a central adoption authority that conforms to international standards is difficult at best. It is, therefore, imperative that consideration be given to allowing adoptions to continue in the interim, provided that additional protections can be added to strengthen the current process.
There seem to be two divergent points of view regarding the current situation in Guatemala. In 2000, UNICEF commissioned the Latin American Institute for Education and Communication (ILPEC) to conduct a study of Adoption and the Rights of the Child in Guatemala. The report was reportedly designed to "help provide support for the Congress of the Republic of Guatemala by identifying those elements most essential to the formulation of a law on adoption." This report coupled with a report by the UNICEF Special Rapporteur on the sale of children, child prostitution and child pornography, Ms. Ofelia Calcetas-Santos, has been the source of many of the concerns regarding Guatemalan adoptions. In the conclusion of the ILPEC report, it states, "Until such time that an adoption law becomes a reality, it is recommended that all direct and private adoptions be suspended so as to favor the large number of institutionalized children."
On the opposite end of the spectrum are many attorneys and agencies that currently work within Guatemala to place children through direct and private adoptions. These entities emphatically disagree with much of the information in the ILPEC and UNICEF reports, and protest, quite convincingly, that the private adoption system provides much needed services to the children of Guatemala and that they undertake many of the social service functions that the State fails to provide. They also express understandable concern over the difficulties in realistically implementing a central adoption system within a country which lacks the infrastructure and resources needed to function adequately. It is also noted that DNA testing, which is required by the US Government, serves to ensure that one of the most serious allegations, that children are being kidnapped for adoption, is no longer a concern. Most adoption service providers involved in Guatemala favor a continuation of private and direct adoptions, and assert that the current system already contains protective mechanisms.
There is some merit to both of these positions. The adoption community must address the significant questions regarding high fees, coercive tactics, and the lack of oversight that currently exists. On the other hand, UNICEF's proposals could relegate children to institutions for years unnecessarily. While changes are obviously needed in Guatemala, care must be taken to ensure that the actions taken to correct the situation do not inadvertently make conditions worse for the children involved. For example, in the introduction of the ILPEC report, it is stated that high poverty rates, high fertility rates, unemployment, lack of education and other factors combined with the lack of social service programs, family protection policies and a lack of economic resources provided by the State all contribute to a situation where families are forced to placed their children for adoption. This is likely true. However, adoption can be a solution for the children involved. Closing adoption does not address the factors that originally caused the child to enter the child welfare system. There is much middle ground between the two extremes, and it is vital that all viewpoints be considered before legislation is enacted which will significantly impact the system.
Family Preservation Efforts
Whenever possible, children should remain with their birth families. It is true that poverty should not be the sole reason someone chooses to place a child for adoption, and in most cases it is not, as evidenced by the fact that the majority of families who live in poverty do not place their children for adoption. Complex pressures from both inside and outside the family virtually always contribute to the decision. The fact that a situation is oversimplified and related as, "I could not afford to care for my child," should not automatically prevent a child from benefiting from a permanent adoptive home. If a family receives adequate counseling prior to relinquishment, the combination of reasons leading to the relinquishment can, and should be, included in the social report.
To enact true adoption reform, protections have to be strengthened to first prevent children from needlessly entering the system. The discontinuation of relinquishment adoptions may actually harm this objective, as abandonment guarantees that families will not receive the necessary services to maintain family unity. Additionally, it is incumbent upon all those involved in adoptions to make substantial, meaningful efforts to help preserve family unity. The fact that governmental programs may not exist to aid in this does not alleviate the responsibility of non-governmental organizations, adoption agencies or attorneys to do so. A new law which requires the creation of such programs by adoption service providers could be gradually implemented, with continued approval dependent upon the demonstration of genuine efforts.
National vs. International Adoption
When family preservation efforts are not successful, it is preferable for children to be adopted within their country of birth. In its report, ILPEC notes that the following factors play a role in the low incidence of national adoption in Guatemala:
Social workers impose obstacles for national requests; too many requisites demanded;
Children's homes and orphanages prefer giving the children to foreign parents abroad;
Attorneys prefer fees to be paid in dollars;
Guatemalan families don't want to adopt children from this country;
Costs are too high for Guatemalans;
The culture of adoption is virtually nonexistent in Guatemala.
Some of the factors shown above can be remedied by regulation and by requiring adoption providers to make substantiative efforts to promote national adoption. Care should be taken, however, to not needlessly delay permanency for a child. Short, child-friendly time limits are a must. While national adoption should be a priority, regulations that serve only to hinder or eradicate international adoption, rather than actively promote national adoption, do not serve the best interests of children.
The ILPEC report included results from a random sampling of cases which showed that only 1-2% of the adoptions were national adoptions. This statistic is widely reported as being representative of the number of national vs. international adoptions in Guatemala. It should also be noted, however, that the ILPEC report outlines two alternative mechanisms commonly practiced by Guatemalan citizens: adoption by Municipal Authority (where the birth and adoptive parents appear before the local mayor for an adoption) and Adoption by Supposition of Birth (where the birthmother delivers the child immediately after birth to the adoptive parents and the adoptive parents are listed as the parents on the birth certificate). Neither of these two mechanisms requires the adoption to be recorded by the Attorney General's office. The inclusion of these adoptions would obviously alter the statistics and provide a more accurate rendering of the prevalence of national adoption.
Private vs. Public Adoption
This is an area of significant concern, and the most controversial at this time. The ILPEC report is quite clear in its belief that the private adoption system is corrupt, illegal, and should be stopped. Proponents of the private adoption system vehemently disagree.
Everyone agrees that there are currently thousands of children living in institutions in Guatemala. The detractors of private adoptions correctly note that the majority of children adopted do not come from public institutions. However, while some opine that the availability of children outside orphanages causes there to be less 'demand' for children living in institutions, it can also be argued that the problems within the public adoption system force families who do wish to adopt to use the private system. Furthermore, the suggestion that direct and private adoptions be eliminated to favor the children in institutions does nothing to address the serious concerns, highlighted within the reports, that abandonment decrees can take up to seven years to obtain.
The suspension of all direct and private adoptions, in the absence of a immediately instituted public adoption program that works to move children into permanent homes quickly will only result in hundreds, perhaps thousands, more children being institutionalized in a country where virtually no services exist to aid them.
At the same time, there are problems within the current private adoption system that demand attention. Adoption fees in Guatemala are among the highest in the world, and few are willing to openly state what the majority of the fees are used for. There are legitimate concerns regarding the conflict of interest that arises when an attorney acts as representative to both the adoptive parents and the birth parents; or when someone acts as both attorney and social worker in a given case.
Current Guatemalan law does not require post-placement reports, which gives rise to legitimate concerns for the welfare of the children. The continued assertion that adopted children are used as organ donors, however, serves only to inflame the public. UNICEF itself states, "The sale of organs for purposes of organ transplantation is a very sensitive issue that should be addressed with a great deal of prudence as it can cause unwarranted alarm. There are reports concerning the phenomenon but there seems to be no hard evidence as to its actual practice."
The most serious allegation is the purported use of agents who actively seek out birth parents to relinquish their children for adoption. This practice can never be condoned. The use of advertisements similar to those in the United States that ask, "Are you Pregnant? Do you need help?" are sometimes justified by agencies who contend that mothers are given prenatal care which benefits children. Others excuse the practice because of its similarity to programs in the United States. However, when these advertisements offer adoption as the only service, Ethica views them solely as a solicitation of children for adoption. There are reports that mothers who receive pre-natal assistance but then choose to parent their child after birth are sometimes given a bill for the services they receive. Such tactics can only be viewed as coercion, and laws that prohibit this practice must be enforced.
There is also anecdotal evidence and suspicion that mothers are sometimes paid for their children. It may be true that it is impossible to create a law which guarantees that birth mothers will never be paid. However, agencies and attorneys have the responsibility to implement every possible safeguard to prevent this from happening. This practice should never be condoned, and allegations regarding this practice should be actively investigated.
Interim Protections for the Continued Processing of Cases
While new laws and regulations are being implemented, consideration should be given to allowing adoptions to continue, with stronger controls than now exist. In order for this to happen, it is imperative that adoption service providers and attorneys actively participate in the identification and implementation of such controls. Ethica strongly believes that in order for the adoption community to gain the respect of government officials, child's rights activists, and the critics of international adoption, they must first be willing to acknowledge where problems exist and what changes agencies and attorneys are willing to make to remedy the issues.
Likewise, UNICEF and its supporters must acknowledge that changes must be instituted carefully. ILPEC states that the "ultimate goal is to work towards ensuring that the process of child adoption always be a matter of final recourse". This, of course, is a position echoed by the adoption community. The discrepancy comes in when each segment of the population has a different definition of "final recourse". Unduly relegating children to institutionalization for years should not be viewed as a measure that is preferable to adoption.
In areas of dispute where extremely divergent opinions are involved, change can only occur by first identifying areas where all parties agree. Without such a starting point, diplomatic efforts to address the situation will likely be unsuccessful. It is vital that dialogue be established between the warring factions in Guatemala adoptions, and that everyone work together toward the common goal of helping the children. It is impossible to justify sending thousands more children to institutions while adults debate how to save them.
Many of the current concerns could be addressed with minimal effort prior to the implementation of a central adoption authority. Interim regulations which call for mandatory post placement reports and consent to adoption by children over the age of twelve would be easily implemented. In addition, policies must be considered which provide for the mandatory separation of legal, notarial and social work functions; the prohibition of solicitation of birth mothers; and the capping of excessive fees.
Finally, much thought must be given to how a central adoption system is formed to avoid the creation of a system so elaborate and unwieldy that adoptions from both public and private entities grind to a halt. Competing legislation sponsored by parties representing either of the two extreme viewpoints must be carefully reviewed, and the Guatemalan government is tasked with ensuring that it adopts a system that adequately addresses the real needs of the children involved. It can only do so by actively seeking the input of all involved in the intercountry adoption arena.
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