Regulation and Protection in Intercountry Adoption – Workshop 4.1 Hague and IAA

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Ethics and Accountability Conference
Sponsored by Ethica and Evan B. Donaldson Adoption Institute
October 15-16, 2007

Panelists:
Trish Maskew, founder and President of Ethica, Inc.
Thomas D. DiFilipo, President & CEO of Joint Council on International Children’s Services
Katherine Monahan, Chief of the Hague Intercountry Adoption Convention Implementation Unit of the Department of State’s Office of Children’s Issues
David M. Smolin, Professor of Law at Cumberland Law School, Samford University, and Director, Center for Biotechnology, Law and Ethics

Opening Remarks:

Smolin

Smolin’s comments centered on the areas he is fearful that Hague implementation will not address parents whose children have been taken through improper processes:

1) There is no control over the money

• The regulations only require a limit of those amounts that are “customary” within that sending country’s adoption community. For example, if $22,000 is typically what’s paid into Guatemala in the form of adoption fees, the regulations are met if that’s the custom. This is a huge hole in the regulations; if you don’t control the money, you will not stop the misconduct.


• The itemization of money in terms of exactly where it goes is not clear enough. Itemizations that simply detail “foreign” fees is not enough, instead we need to know exactly where the money is going. There are approximately 90 JCICS agencies operating in Guatemala, each averaging $18,000-22,000 to Guatemala per adoption. Smolin pointed out that at the UNICEF session, Tom DeFilipo acknowledged that agencies could not account where all the money goes and could not account for what goes on at relinquishment. The lack of accountability is an “open invitation to trafficking.”

2) The Hague regulations contain a gaping hole with respect to the responsibility of U.S. agencies over their foreign partners

• Tort liability of agencies was scrapped from the 2003 version of the draft rules to the 2006 final rules, leaving agencies not responsible for a trafficked child.


• A US agency can use a facilitator who is not a supervised provider if the agency has document verification. Verifications make little sense when one can buy documents in countries like India, Nepal and Vietnam for very little money.

3) Another difficulty with Hague implementation is its peer review approach

• A peer review approach is based on the idea that things are generally fine with the exception of a few bad apples. But agencies put more money in countries than they can handle. For example, India currently has a $3,500 cap on fees with no donations permitted. A survey of agencies reveals it is difficult to find any agency that abides by CARA’s rules. The overwhelming majority of JCICS agencies charge fees well beyond these limits. If a system is created that produces a price tag over the head of a child, that incentivizes trafficking.
  
• COA accredits agencies based only on agencies reviewing themselves when these agencies are among those themselves involved in a broken system.

DeFelipo

• Language is an important tool. There is no such thing as a “JCICS agency.” Organizations choose whether to join JCICS as a “member.” JCICS has no responsibility for its members and does not believe all its members adhere to ethical practice.


• One important point to remember is that the Hague will not make a broad impact. Many large sending countries are not parties to the Hague, e.g., Russia, Ukraine, Kazakhstan and South Korea. China has ratified that Hague, but the impact of the regulations there will be nil. The majority of the impact is in Guatemala. JCICS advocates that all adoptions adhere to U.S. Hague standards regardless of whether the sending country adheres to the Hague.


• DeFilipo is concerned about implementation of the Hague in other countries. Its impact has been to restrict corruption, but has done so by simply minimizing the number of adoptions done. It’s not enough to end corruption, if you end corruption and end the child’s ability to find a permanent family, what have you accomplished? It’s THAT behavior that is unethical.


• The Hague Guide to Good Practice calls for transitional implementation of the Hague Convention, not instantaneous implementation. Many of us would be pleased if the Hague was implemented transitionally in countries like Guatemala.

Monahan

Her remarks were not recorded. She noted that the Department of State intended to deposit ratification to the Hague by the end of this year.

Discussion Among Panelists:
DeFelipo addressed Smolin’s point about controlling money. DeFilipo agrees if that if we can’t control the money, we can’t control corruption. Some agencies argue that controlling money is anti-free trade, but this is not trade. In fact, most agencies would prefer a low volume of dollars going through sending countries.

Monahan acknowledges that corruption is a large problem, but there are so few ways to fight corruption in these countries. She raised an example of an adoption service provider who wanted to give $10,000 for a child who needed a heart operation. Shouldn’t that be okay? The Indian government authorities are very concerned about these issues and said there will no longer be a $3,500 and no donation rule, but rather, all donations will be pooled.

In response, Smolin pointed out a recent report in the last two days concerning Preet Mandir, an Indian orphanage. By way of background, India is the second largest country, but places only 300 to 600 children per year and those numbers are going down. Yet India is still ripe with adoption scandals: Andhra Pradesh has been closed since 2001 and Dutch and Danish authorities are very concerned about scandals out of Chennai. 40% of all children are from orphanages in Maharashtra, 25% of all children are from Pune, and a significant portion of those children are from Preet Mandir which keeps getting relicensed despite significant and documented instances of corruption. News is now surfacing about a claim that Preet Mandir paid the hotel bill of the head of CARA. Therefore, trust in the situation of India is not large because corruption seems to start at the head of the government authority and go down. Smolin is not opposed to special surgeries, but would like to find ways to help families keep their children. He personally feels that humanitarian aid should address helping a child stay in his or her family for only $100-$200 instead of helping the child through thousands of dollars.

DeFilipo responded that JCICS is in complete support of orphan prevention, but handing someone a one time payment of $100 is not going to allow them to keep their child. It’s disingenuous to make it sound that easy. If agencies are involved in ICA, how does the fact that they are not involved in all aspects of child welfare somehow negate what is done? It’s the government’s responsibility to prosecute Preet Mandir, not JCICS or any of the agencies.

Smolin replied that a U.S. agency is responsible when IT links to Preet Mandir. He has seen NO consequences to U.S. agencies when they linked up to agencies in Andhra Pradesh or Preet Mandir and he doesn’t see the DOS or JCICS address it. Under domestic and international law, a child is eligible for adoption only after adequate preservation efforts have been made. This is basic social work. If a doctor saves a life by amputating a leg instead of prescribing antibiotics, we’d say that’s malpractice and not commend them. When you take a child from a mother and could have kept the child with his mother, and you were involved in taking the child, you HAVE been involved, you did the amputation, therefore, you must make sure the amputation was necessary. This is the responsibility of agencies.

Audience Participation:
DeFilipo asked stated that U.S. agencies working in India interface with placing agencies NOT birthparents. In the face of this erroneous statement, I jumped up and pointed out this is NOT the case, there ARE U.S. agencies with facilitators on their payroll who interface directly with birthparents in India. Later, DeFilipo clarified that he meant under future rules, U.S. agencies will not be permitted to interface with birthparents in India.

A representative of Spence Chapin in New York City wanted clarification on humanitarian aid. First, she noted that their vast development programs were in countries not placing children for adoption, for example, Moldova, Bulgaria and areas of China where they don’t work with specific orphanages. She agrees 100% that increased transparency is needed, but asked for suggestions given that it is a difficult and complicated task to supervise representatives from foreign countries who are monitored by the government of that country itself.

• Monahan responded that the solution lies not only in setting fees since money will always go under the table in these countries. In Guatemala, they are looking at ways to make sure that the intake of children is done by social services representatives, not by anyone who stands to make money off the situation. This way there won’t be “trolling” for children and it will be more transparent what social services were done for the child.


• Smolin thought that if agencies didn’t get involved in bidding wars for children with foreign partners, that would help. Agencies should make their own determination of what are reasonable payments, and only extend that amount even at the risk of not being allotted children to refer for adoption.

Joan Hollinger addressed the issue of accountability by U.S. agencies for behavior of facilitators in other countries. She said the State Department had to confront what is central to the Hague: the ultimate responsibility for determining the availability of the child is that of the sending country. However, U.S. responsibility could be addressed if the child’s immigration and visa application were not approved unless the consular officer and USCIS officer make the determination under Hague applicable standards (e.g., orphan definition) were complied with.
Monahan noted that there are a lot of concerns around the foreign supervised provider provisions. She said the DOS didn’t give up on oversight, the regulations are extensive in this regard. Also, under Section 96.46, verification will require more than just “looking at a document.” There will be other appropriate steps.

Joan Hollinger also addressed the Hague’s provisions on waivers by prospective adoptive parents in adoption service agreements.

• Smolin noted that the proposed Hague regulations would have forbidden blanket waivers. The final rules are somewhat ambiguous, but generally allow waivers. Even Holt, often held as one of the more reputable agencies, came out in favor of waivers.


• Lucy Armistead of Kentucky Adoption Services said that the Hague requires “limited and specific waivers.” There are limits to what an agency can be expected to be accountable for. Armistead herself is a COA peer reviewer. When she reviews an agency, she looks to see if their contractual waivers are limited and specific, and if they are not, she will not pass those contracts. In a litigious society, agencies are fearful and ICA is an endeavor that is fraught with liability.

Carol Rauschenberger asked whether the Hague would address the umbrellaing problem which she hears is going on in Vietnam again. DeFilipo responded that the Hague does address umbrellaing. For example, if one agency is licensed in a country and give another agency use of the license without disclosing that to families recruited from a third state, that would not be allowed under the regulations.

Carol Rauschenberger also asked whether the Hague will address what goes on in relinquishments, for example, what is going on in Guatemala. Monahan replied that a key issue of the Hague is to make sure a child is adoptable. The principle of subsidiarity feeds into that. Protections at point of relinquishment are critical to ensure a child truly needs a permanent family he doesn’t already have. The U.S. will become partners w/ other countries and will review each partner. For example if profiteering partners scoop up children without processes that the Hague prescribes, such as counseling, the DOS and CIS will decide whether the country is meeting its Hague obligations and whether it will be able to process adoptions with that partner. This obligation will be taken very seriously.

Johanna Oreskovic asked if in fact, we can’t operate ICA ethically in a foreign country, but we can operate with a foreign aid program ethically where that program doesn’t do adoptions, then why are we doing ICA where we can’t be accountable? Also, what kind of redress does a family have when an agency’s liability is waivable? Monahan said that although the Hague does not provide for tort liability, an agency can still be put out of business in working with other Hague countries. DOS is supportive on these issues and hopes people will pick the right agencies.

I asked for an explanation from the DOS of how Section 96.46(c) of the Hague regulations are in accord with the legislative intent and statutory language of the Intercountry Adoption Act.

• Monahan replied that the DOS said this is a question it has been grappling with for some time and their lawyers are considering it. Hague accreditation was set up to make agencies accountable. It’s an elaborate system and it makes the primary provider responsible for everything that goes on under them. The whole purpose of the law is to require transparency and accountability – so to the extent people are arguing there is one small provision of the Hague regulations that is going to blow everything out of the water, that’s not going to be possible because the intent of the law is to not make that happen.


• DeFilipo pointed out that the Hague regulations reflect compromises after political negotiations.

David K expressed frustration that in trying to dialogue with the DOS and COA, PEAR is only being ignored or receiving form letters. Therefore, he finds the outreach offers from the DOS difficult to swallow.

Closing comments:
Smolin: We can’t let corruption happen so systematically. This is a conference about ethics and accountability. He is still not clear who is accountable to make sure these kind of things don’t happen systematically.

DeFilipo: All agencies aren’t the same. We are all responsible including the DOS and CIS who process visas they know are not valid. JCICS has fallen down on job. In addition, prospective adoptive parents who despite warning after warning, moved from agencies who stop processing applications for Guatemala to those who will are also responsible.

Monahan: Wanted to end on a positive note. The Hague Convention is the best we got. She has a lot of hope for it and thinks it will make a difference.

Usha