Part 2 of Accountability to Families of Origin: Before Adoption: Protecting the Rights of Vulnerable Families of Origin--Workshop 1.2

The following are detailed notes. They do not constitute the exact words of the speakers, but a--hopefully accurate--summary of the ideas of these presentations and questions. If any of the panelists or attendees take issue with any of these summaries, please let me know so that I can correct them.

Because the notes on this Workshop were so lengthy, I divided the notes into separate posts. This post is the second of two from Workshop 1.2.

Desiree

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

Bullet points for discussion during this workshop:

1. Do current practices, even when handled carefully, create for some expecting women/couples, a sense of obligation to go forward with the adoption?
   
2. What are the most appropriate ways to cover expectant mothers' expenses so that risks of coercion or exploitation are minimized or eliminated?
   
3. What is the role of open adoption arrangements in planning for adoption? Should contact agreements be explored in all situations? Should they be enforceable?
   
4. Is it ethical to search out children to place for adoption and what role should professionals play in this endeavor?

Panelists:

Lynn Franklin is a birthmother who was reunited with her birthson, a book author, a current board member of the Evan B. Donaldson Institute, an eleven year board member of Spence-Chapin, and an elected “lifetime” Honorary Director of Spence-Chapin.

Sania Metzger is director of policy for Casey Family Services, the direct service agency of the Annie E. Casey Foundation. She works to influence and track policies at the local, state, and federal levels. Ms. Metzger is on the Board of Directors for Prevent Child Abuse America and the Center for Family Representation.

Dr. Teresa “Tesi” Kohlenberg M.D.is a child psychiatrist, who had previously worked as a developmental pediatrician with teenage mothers and the urban poor. She is an adoptive parent, a co-founder of Guatemala Adoptive Families Network which promotes ethical practices in Guatemalan adoption, and finally a contributor to various adoption books.

Annette Appell is a law professor who has authored multiple articles, books chapters, etc. on adoption. She serves on the editorial board of the Juvenile and Family Court Journal and the Adoption Quarterly, and has extensive experience representing representing children and parents involved with the child welfare system, including providing legal representation in termination of parental rights cases and adoption proceedings.


To read the notes from Part I of this workshop go to Part I of Accountability to Families of Origin: Before Adoption: Protecting the Rights of Vulnerable Families of Origin--Workshop 1.2

The Part I notes included presentations by Sania Metzger and
Tesi Kohlenberg.

Part II includes a presentation by Annette Appell and Questions discussed by panelists and the audience. These follow here.

Annette Appell

• BTW, germane to Sania Metzer's topic: Nevada has just passed a law that allows children to petition to reinstate their parent’s parental rights.
  
  
• My topic is: Domestic legally enforceable post adoption contracts
  
  • What they are, what their characteristics are
    
  • Why enacted and what people who deal with them say about them
  
  
• Legally enforceable post adoption contracts
  
  • Seem to be under the radar--even adoption workers don't know much about them
    
  • New development in adoption law
    
  • First statute was in 1990 and now 20 states have statutes that allow some form of post adoption contact that is enforceable
    
  • Allow birthrelatives and parents to enter into a post adoption contact agreement prior to the adoption
    
  • These agreements have the possiblity for modification in a court of law by either party after the adoption
    
  • They are also enforceable by a court of law
    
  • But they can never provide grounds for the termination of the adoption

• These are called adoption contact agreements (ACA) and the legislation that enables them, adoption contact statutes (ACS)
  
  • Adoption contact is good name because this is exactly what these legal documents facilitate
    
  • Contact agreement is part of the adoption itself in most states
    
  • These legal documents are incorporated directly into the adoption decree or else referred to in the adoption decree itself
    
  • Statutes appear to have been adopted to protect adoptees’ interest in openness and to provide guidelines and formality to something that is already happening which is open adoption by agreement between birthparents and adoptive parents
    
  • The idea was to make clear by statute what was enforceable and what was not enforceable
    
    • The truth is that there are many adoption lawyers who don’t understand what the effect of an agreement is between a birthfamily and an adoptive family
      
    • The odds are that unless an open adoption agreement is made in a state in which there is one of these adoption contact statutes, that the open adoption agreement is not enforceable by law

• There are now at least 20 states with adoption contact statutes
  
  • They vary from state to state, but many are almost identical in many respects
    
  • By definition, these contracts can not be entered into unless the adoptive parents agree
    
  • Each statute indicates who must approve of the agreement in order for it to enforceable later
    
  • There is chart provided in the conference CD’s that analyses the provisions in various state ACS's (fleasbiting will try to get permission to reprint the chart here)
    
  • All but 1 require agreements to be in writing—as a contract, a part of the relinquishment, or the court order
    
  • All provide for enforcement of the agreement unless there are grounds not to enforce them or grounds to modify
    
  • None provide for a vacation for the adoption or relinquishment for a breach in the agreement
    
  • Statutes vary as which adoptions these are available for, who may have contact, and what the grounds for breach or modification are
  • 13 of 20 apply to all adoptees, 4 restrict contact to kids in foster care, 1 restricts them to step parent adoption, 2 require that children have a “significant attachment to the birthparent” to apply
    
  • All permit birthparent contact but some restrict its application to those who voluntarily relinquish children, but in some states if parental rights are terminated they can’t be a part of this provision (another goofy thing)
    
  • Some statutes allow other relatives to be included, like siblings, extended family (a good thing)
    
  • Most require court approval of the agreement
    
  • Most include enforcement standard as to when it is and isn’t enforceable, can be modified, etc.
    
  • Some provide that the “best interest of the child”—not my favorite legal statement as it is vague--standard must be applied to all modifications and enforcement
    
  • The better ones are those that require a chance in circumstances, agreement of parties, etc. in order for the agreement to be modified
    
  • Some statutes require that the placing agency approve the post adoption contact
    
  • Some require mediation between parties before modification can be added or enforcement provisions of the statute kick in
• The preceding is the "black letter law" of these agreements; there is to date no litigation arising out of these particular agreements; but there is one case percolating in CA
  
• It is amazing that there are no social scientists studying these agreements
  
• The speaker did a survey of 17 of these states in order to find out why these had been enacted, what was going on to bring them to be enacted, etc.
  
  • I contacted 3 people in each state: these included various state officials, child welfare workers, adoption workers, someone representative of parents, and/or adoption attorneys
    
  • I found that the child welfare public sector was behind the statute in most states, pushed to get it enacted
    
  • Most said they did not know what the original/primary push was for these statutes, although most said that that they guessed that the child’s interest in open adoption was a prime motivating factor, as well as the rise of open adoption with post adoption agreements which had no legal clarity as to what they meant and what was or wasn't enforceable
    
  • It was surprising to me how very little internal infrastructure has developed around these statutes, in terms of training, publicity, and formal mechanisms to provide for entry into these agreements and for problems that might arise out of them, etc.
    
    • California and Oregon are the only ones different in this regard; these states actually have booklets describing adoption contact agreements and these booklets and information is encorporated into permanency mediations or permanency planning sessions in those states
    
    
  • No one I talked to was aware of anyone collecting data on how frequently ACA's were being filed or on how these agreements are working for those involved
    
  • Sources I talked to led me to believe that states seem to vary in regard to how frequently these adoption contact agreements were being used;
    
    • Most of those I talked to felt that adoptions might be increasing because of these contact agreements
      
    • Most also felt that contested appeals and contested terminations were down in the states where ACS's had been enacted--so they seemed to be reducing mid-process litigation
  
  
• Concerns for implementation of these adoptive contact statutes included:
  
  • The fear that adoptive parents would be hauled into court
    
  • The fear that adoptive parents wouldn’t be able to adopt without being forced to enter into these kinds of agreements (that coercive thing)
    
  • Concern about whether birthparents would really be able to enforce ACA's
    
    • As we saw earlier, brithparents already have problems with access to justice and the legal system; How would they find an affordable attorney to press their cause in this situation?
      
    • It is not always clear how ACA's will be enforced;
      
    • If they have to file a cause of action to have the contract enforced there would be are fees—can birthparents afford these court fees, etc.
• Do these ACA's really have any teeth at all down the road?
  
• There was also the concern that these ACA's not be used as settlement tools
  
  • Agreements should be entered into for the best interest of the child and not for the needs of the various adults involved—though it’s hard to separate those out sometimes

• Basic questions we might ask are:
  
  • Do these agreements add any value to adoption? Or open adoption?
    
  • Are they enforceable? Costs and benefits?
    
  • What safeguards can be put into place with open or informal adoption, primarily for birthfamilies, for children, for AP’s

Questions:

Question 1: For the states that have these legally enforceable post adoption contact agreements—what sanctions are in place if someone breaks the contract?

Appell: There are no sanctions. There is no way to enforce these agreements except to have the court say that the contract is enforceable and order that it be followed; and then, of course, you would have the sanctions of a court order not being followed--contempt of court.

Question 2: AP’s who have adopted from Guatemala come to me. They are in contact with their child’s Guatemalan birthfamily. The family is quite poor and lives in a village without clean water, etc. The adoptive family is in a position to provide these things to the village but are concerned about the ripple effects--the ethical issues--it will have on other families living in the village. Will intervening in that community cause the perception that they are encouraging/incentivizing other families to place their children for adoption?

Kohlenberg: The rate of adoptive family involvement on that level with birth families is still very small, though significant, and it has not created an expectation among Guatemalan families of support. The upside is that if the help is post adoption and is directed at a group rather than individuals, then it is not a quid pro quo. All of us have been careful not to make any kind of commitment or hint of help before the finalization of our adoptions. We who are involved thus talk about the impact that gifts have on quality of our relationships and the view of people there (in Guatemala) who assume that all of us are wealthy. The power and wealth differential complicates things.

Question 3: Can you address bullet #2 for this session which states: "What are the most appropriate ways to cover expectant mothers' expenses so that risks of coercion or exploitation are minimized or eliminated?

Kohlenberg: I’m not sure in an international context where you’re talking about people who are living on a few dollars a day, that it is possible to cover birthparent expenses without providing an incentive for relinquishment. It is a real conundrum without elegant answers.

Franklin: Audience?

Social worker from audience: IA and domestic are different, but even within domestic adoption things are different from state to state. There are 50 ways of doing things because each state is different. Some states have more vulnerable than others, some states have birthparents with more rights, etc. I think it is time for us to move forward with some national solutions. Until that happens we've got a real problem about how we are going to take care of the expenses of birthfamilies.

Joan Hollinger: I am a 15 year veteran of futile efforts to acheive uniformity in adoption laws, I sympathize with your plea for uniformity and national standards for expenses for birthparents. I don't think it's about to happen. Although perhaps it should. Although always the price for uniformity tends to be a move towards the lowest common denominator. It's often a much higher price when you balance it with a diversity from one state to another. Because some states really get it, but many don't. We have to balance uniformity with diversity.

On the expenses question, let me report to you that on the just issued interim rules from the Department of Homeland Security on the actual processing of immigration petitions and VISA applications in Hague countries (The Hague is, of course, still a hope; but the promise is now that the Hague will be up and running sometime in 2008), they actually try to address the question of distinguishing between the convention's prohibition on unlawful financial gain, exploitation and the like... and reasonable compensation on the other--and they do suggest that the standards for compensation should be related to the country in which the expenses are being incurred. This is an attempt at contextualizing and avoiding excess. They actually do give a working list of allowabale expenses--which is ironically taken from this proposed Uniform Adoption Act and therefore may not make much sense in other countries...but is an interesting starting point.

Having to do with the ability to request that AP's pay for their own travel expenses, their own homestudy expenses, their administrative costs, and legal fees and the like, but also to permit either contributions to or reimbursement of birthrelated expenses and childcare expenses. And those don't necessarily have to be child specific, but can be child general. I think that is a postitive direction. To avoid pitfalls to which you are so incredibly sensitive. That is, you don't want money going to a particular family prefinalization or post finalization. And you certainly don't want an expectation that the water supply will be cleaned up by the Smiths who took one child from this particular village. On the other side, making a commitment to developing a "custom of the trade" where it was understood and expected that prospective adoptive parents would make contributions that would be used for childcare, prenatal expenses, early infant care, and some recovery expenses of biological families without it being tied to a particular family. I favor that and don't think it's unethical or raises as many ethical problems as the underhanded deals.

Question 3: Sania Metzger to Joan Hollinger: In your attempt to develop uniform adoption standards, did you also consider the need for ensuring the need for representation for prospective birthparents?

Joan Hollinger: Absolutely. One of the concerns I've had domestically is how infrequently birthparents are represented in their dealings with private agencies. This is a question about domestic adoption. It is a question about how infrequently birthparents have legal representation in their dealings with private agencies. And the private agencies, which have historically been very negative about the role of lawyers in this whole system, I think, fail to acknowledge their own conflict of interests in a lot of domestic adoptions. They are representing both birthparents and adoptive parents. Biological parents are often not aware that they do have a legal right--that they should have independent representation in a relinquishment to a private agency. These national standards did propose all of that. But is easy to write model legislation--not so easy to get it passed and implemented.

Question 4: From Claudia Corrigan D’Arcy of Musings of the Lame, a domestic mother who lost her child to adoption 20 years ago: As far as expenses for expectant parents, expenses need to be taken out of the equation completely—expenses for expectant parents need not to come from agencies; they need not to come from PAP’s; they just need to come from somewhere else. It's a fault of our society that we don’t have a society that honors the mother/child bond; a society that doesn’t give women who have a lack of resources, the support they need to make a decision, a decision really based on what their feelings are--not just based on--"oh they're going to give me this or that." Adoption turns out to be the solution to these problems—the happy one that makes things feel good temporarily, but not feel good in the long run.

Lynn Franklin:Which goes to the point of what we were talking about with coersion...

Claude: Oh, it’s totally coercive. The combination of putting the expectant parents together--the relationship between expectant parents and the PAP parents, etc...

Lynn Franklin: Some places try to attract expectant mothers to come to facilities with all the amenities or come to another state.

Claude: To take you away from your family, to the people who look down on you and put you in a little cocoon.

We need to separate the money, and the decision--separate it out--the expectant parent resources here and adoption there. They need to be separated by a great divide. They can’t be related to each other. If we separate out the money and resources from the decision, the money and resources do appear.

Question 5: From an adoption agency worker: We are a small/medium sized agency that does both domestic and IA placements and we don’t ask for money for expectant mother expenses from PAP’s. There are typically plenty of resources out there for expectant moms, and as good social workers we should be able to tap into them. We don’t need to be asking for birthmother expenses at all. We’ve never had to spend much of our own money. But when we do spend our own money for these expenses, it’s a cost of doing business—it's part of a service and does not and should not come from PAP’s. If a small agency can do that, anyone can. As far as IA is concerned--the finders’ fees in Guatemala, is an issue that needs to be addressed, but I also think that when we say that the finder gets that $6000 to $10,000 per case, that is not exactly accurate. We have to consider how many bio mothers the finder had to work with to find that one child—did she work with 20 to find one or how many? It's a huge lack of transparency but, I don’t think we can say--Oh, she got $6,000 or $10,000 per child. That’s not completely accurate. We have to look at the context of these numbers too.

Kohlenberg: I get your point, but OTOH--and there are several other hands--6 to 10 thousand dollars is a enormous—a huge—amount of money and there is really no way to do that calculus that makes me happy. It makes more sense to have women in need have access to independent people who are NOT involved in the business of adoption who can direct them to services. The complex question is that women who have agreed to relinquish ahead of time get access to a level of prenatal and birth care that is not generally available to the general population of poor people in Guatemala or in other countries. Even that is an issue. Whether you call that finder’s fee $6 or $10 or $3 thousand dollars, it is out of control and it has to stop.

Questioner: Yes, I agree. $3600/$3500 as a cap in Guatemala as a solution is dead in the water. Another issue that is appalling is that agencies are actually supposed to counsel birthmothers. There should be a division there. An important question is one that asks whether adoption agencies should be allowed to counsel expectant mothers at all. We have looked at other options as an agency—the possibility of referring to outside counselors--to CARENET or others. We shouldn't be doing the counseling because we stand to benefit financially when an adoption plan is made. I think that is a terrible conflict of interest that should be stopped completely.

Question 6: From Suz Bednarz of Wrong My Wrongs I affirm and validate what Claudia says. To have agencies involved in the crisis is coercion. Expenses? None should be given. Yes, that is drastic. I agree that agencies and PAP’s have to be taken out of the equation. I say this as a mom who lost her child to adoption in 1986 under threat of a promissory note. They actually had my parents sign a promissory note when I was in the maternity home for 6 months. When I tried to change my mind and keep my baby, they actually threatened to sue me and my parents for all of the fees for the care that they had provided me. Actually, I had been in the home, but I was working while in the home, and so I shouldn’t have owed them anything. I say this by way of saying that the adoption industry uses finances as another thing to hold over your head in order to get your baby—promissory notes, threats of lawsuits, and things other than cash.

Question 7: From David K of The Adoption Agency Checklist: Adoption is mostly international and interstate, and doesn’t usually stay within states. States have proven to be ineffective regulators. They either don't have the regulations on the books or else they don't have the will to enforce them. Joan Hollinger has said that when we look to have Federal regulations, we end up with the lowest common denominator; but she also said that there were states that do "get it." Why can’t everyone in the reform community benchmark the states that do "get it" and make that the goal of Federal legislation--and we all get behind it?

Appell: Federal regulation... The question is who will make the uniform laws because the Feds won’t regulate here. Fortunately or unfortunately. It's the way laws are made that is at fault. This organization--theNational Conference of Commissioners of Uniform Laws may help here.

David K: In the post Masha Allen hearings, you may have a Federal government that is more inclined to regulate.

Lynn Franklin:Acting as Moderator who wants to return the conversation to the bullet points that have not yet been explored in the midst of a discussion that is clearly going elsewhere: We want to talk about the role of open adoption agreements, but we haven’t yet talked about open adoptions...

Suz Bednarz: I want to add one more comment on expenses. In terms of supplying expense money for expectant mothers, the first place we ought to go is back to the families—the mother’s family, the father’s family, the extended family—and hold them accountable. And only then when they can’t help, should we go beyond them to look for help elsewhere. By forcing extended families (in the domestic context)to get involved, you are forcing them to deal with the situation—instead of giving them an easy out by having them send the mother away or getting an agency involved. You put the family into crisis mode instead of doing intervention, and you get the family involved. It lends itself to preserving the family.

Metzger: What Suz says points again to the urgent need to reform our child welfare financing programs. We know that the overwhelming amount of money--close to $6 billion annually--is available for “out of home placements.” Yet only 11% of that amount is available to "shore up" families on the front end--to preserve families and keep adoption from being necessary.

As a society we are making political decisions that do not work to preserve families, but, in fact, are working against them. As a society we make decisions to not preserve the family and opt instead for adoption.

We should want to maintain family integrity. Finances need to be made readily available so that when adoption decisions are made, they are not made out of financial necessity. The finances need to be available in individual situations to preserve families.

Question 8: We appreciate the birthmother comments. I’m Concerned about Guatemala and the global situation. If we can’t come together as a nation and determine adoption standards and strategies that are uniform and work in OUR country, how could we possibly hope to do so in a wider international context? Or in the Hague? We know the kinds of adoption related situations in which people have been vulnerable for years... and yet, they still exist. We have to clean our own house and come together on standards. This is important. This is a human rights issue. We can’t have 50 states doing 50 different things. And we think that we have best practices? And we think that we can inform other countries on what THEY should do?

Alexandra Yuster of UNICEFAll of this is the reason that it is interesting to consider IA and domestic adoption together. I want to respond to the points that Joan made as to the appropriateness of using some of the fees paid for IA for before adoption expenses and other projects in the birthfamily communities.

On that I’d like to issue a big caution.

If you funnel money into the community through the adoption system rather than through the child welfare system, then you are privileging and promoting that aspect--the adoption aspect--of the child welfare system. You are giving money to support the bureaucracy that supports the movement of children into intercountry adoption and out of their home countries, rather than into solutions that are in-country--like domestic adoption.

You are using your money on things other building than the child welfare system to keep kids from coming into the adoption system in the first place.

We need to have a discussion about how fees should be used and about how fees can be lowered. A discussion about how can adoptive families can contribute to welfare of birth families and their communities and contribute to ALL options for children, not just one solution--the international adoption one.

Franklin: In other words, when money comes into the child welfare system through adoption, then that money is used to maintain the institutions to do with adoption, rather than to promote the infrastructure that would prevent children from coming into non-family care in the first place.

Question 9: I worked in Child welfare for a long time—over 20 years--and now I work with Headstart. In this new position, I can get into the homes before the problems happen. I now work one on one with moms. I have been working 2 years with some moms at high risk for losing their children. I have been to Guatemala and the difference is amazing. We are putting lots of money into helping those in America, but we are still failing to keep our own kids out of the foster care system. It will take even longer to make progress in a place like Guatemala. To be able to get anywhere near what America has, it will mean these Guatemalan kids will be 28 or 29. Can we have a series of doable steps? What can we do in 1 year, 2 years, or whatever....

Question 10: Kevin Kreutner of Guatadopt.com: I am an AP. We contribute into the system; we all want to see the fees go down. But to try to say that somehow by us, by the fees that we pay, by that going to support the biological mothers, to ensure that they have appropriate prenatal and postnatal care--that that is somehow a negative thing... to me just seems wrong--in fact it seems and I apologize for the word choice, but it seems “assinine”. To suggest that this is something that is wrong--that these women are able to receive prenatal care.... If you don't have this, if these women do not receive care there will be more children being born unhealthy and not receiving the care that they need. It seems that it is good that women receive prenatal care to help head off trouble. Without it more children will be born with more problems. And I'll be the first to admit that I try to be a globalist--I try to look beyond national bounds--we adopted from another country and I don't think the domestic versus international is as big of an issue as is ensuring permanency, happiness, a loving environment, and all those things in the CRC [Convention on the Rights of the Child]. I just really can't understand the debate and I've read it from the [???] report and other reports. How can it be wrong to provide prenatal care to ANY woman who needs it?

Kohlenberg: What comes from what pot? AP’s say if I had taken the $27,000 that we had spent to adopt and given it to an aid agency in Guatemala, I could have affected the lives of 200 families for 10 years or whatever--pick your number. Not a real thing. People don’t give. It doesn’t work that way. I understand the point of thinking that funding taken off the top could be applied more broadly--that idea has an appeal to me. I agree with Kevin that providing basic services to anyone is hard to argue with--especially where those services are the difference between survival and not.

But it's also true that in some situations these services do incentivise an interaction. That is a problem.

But OTOH, part of my concern about the UNICEF gestalt is that we go for an ideal world and in the meantime we don't do anything messy... But we are a long way from an ideal world here. And children in families that we know and love--not just the ones that live in our homes, but the ones we know in our extended family in Guatemala--are facing problems. And they can't wait for the revolution.

Question 10: From Desiree Smolin of Fleasbiting:I am the parent of children who were basically stolen from their birthfamily. There was a finder paid to find them. There was a lot of money involved. I guess when it comes to this workshop, one of the titles is "vulnerable families." There is nobody protecting the families. When you've put lots of money into a country that is very poor and you have people who are very motivated to find chidlren, they go out to the villages and they find children. They look for the vulnerable families. They step in and they make them dependent, and then they take the children. So my question is, as long as there's money involved--and there's a lot of money--and there's no one protecting the family, they are going to be taking the children. Who is watching the agencies? Who is watching those who are in the middle between the birthfamilies and the adoptive families? Because everybody gets hurt if there nobody watching those in the middle. I mean we did find our children's birthfamily, they were reunited, but there's no justice in it. Anywhere. As long as there is money involved there has to be somebody watching. And as far as the money, all the laws in the world won't do anything, if there's nobody enforcing the laws. India has a $3500 limit on how much money can go into India with an intercountry adoption. Right now--I know someone who wrote to an agency and asked how much money would be paid to India for an intercountry adoption and they were told it would $11,000. And $3500 is the limit! They are breaking the laws. And there is nobody--NOBODY--watching. They are getting away with it. There is nobody watching.

Desiree

U.S. Embassy Statement on Vietnam Adoption

The U.S Embassy in Hanoi, Vietnam has issued a statement noting that it and the USCIS in Ho Chi Minh City have seen an increase in irregularities in orphan petitions and visa applications that has resulted in an increase in the issuance of Notices of Intent to Deny visas. The Embassy believes that the number of irregularities it witnesses “strongly indicates that the adoption process in Vietnam still lacks sufficient oversight and regulation.” “Child finders” and inadequate regulation of adoption fees are cited as chief concerns.

The Embassy urges prospective parents to be “extremely diligent” in reviewing an adoption agency qualifications before selecting an agency. Says the Embassy:

Unfortunately, as news stories and blogs often reveal, the glowing report of an
adoptive parent who successfully ‘brought home’ a child cannot be taken as
evidence that the adoption was ethical or fully legal.

The Embassy urges the Government of Vietnam to continue efforts to become a party to the Hague Convention. The Memorandum of Understanding that Vietnam and the United States signed in 2005 was “designed to increase transparency and reduce corruption, and came after a period when adoptions had been suspended in Vietnam because of significant problems involving corruption and ‘Baby buying.’”

The Embassy encourages Vietnam’s Department of International Adoptions (DIA) to work with provincial authorities in Vietnam to improve the integrity of the Vietnamese adoption system. Although there may be legitimate concerns about DIA’s authority, the Embassy states it has seen little remedial action to address these problems, including little, if any, action to identify and prosecute those responsible for (1) fraudulently documenting the abandonment of children, (2)offering monetary inducements to families for relinquishing children, and (3) offering children for international adoption without the consent of the birth parents.

The Embassy also urges the Governement of Vietnam to pass comprehensive legislation that protects all parties and meets the standards of the Hague Convention.

Usha

Announcement Regarding Adoption in Vietnam, U.S. Embassy in Hanoi, November, 2007

Republic of Congo Suspends International Adoption

In the early days following the Chad scandal, the Republic of Congo has suspended all international adoptions in a move it calls a preventative measure. The Congolese minister in charge of justice and human rights, Aime Emmanuel Yoka, noted that Spanish citizens were crew members of the plane chartered by Zoe’s Ark, and that 17 Congolese children had been adopted by Spanish nationals since he took office in 2007. Yoka said:

“This doesn’t mean I am calling adoption into question; this is an institution
fixed by family law in Congo. I have a responsibility to ensure that in any case
only the interests of the adoptee are taken into consideration in the adoption
procedure.”

Yoka said that the Republic of Congo is checking into the welfare of the Congolese children who currently are in Spain by writing to the foreign minister inquiring about what has happened to these children.

Roger Bouka Owoko, the executive director of a human rights group in Congo, L’Observatoire Congolaise des Droits de l’Homme, commented that there is a lot of complicity and bungling in international adoption where adoption procedures often are not followed.

Marie-Claude Arnauld, a representative of a French adoption association, Childhood and Adoptive Families, expressed concern about the decision to suspend adoptions because some families are well into the process of adopting: “These families already know the children, and have their photos and details about them. For these families it’s going to be a tragedy.”

Usha

Anger at Chad ‘abduction’ fiasco may shut door on Africa adoptions, TimesOnline, November 3, 2007

Chad Arrests Prompt Suspension of International Child Adoption, UN Integrated Regional Information Networks, allAfrica.com, November 1, 2007

Republic of Congo suspends international adoptions following Chad scandal, International Herald Tribune, November 1, 2007

Children Rescue – An Aborted Babylift

On October 25, officials in Chad arrested nine French people on suspicion of child trafficking at Abeche, near the Chad-Darfur border as they attempted to fly 103 African children to France. The arrested consisted of six escorts and three French journalists. Also detained were the seven members of the charter plane’s crew, all Spanish citizens and the pilot, a Belgian citizen.

The French group is from L’Arche de Zoe (Zoe’s Ark), a Paris-based charity who now face charges including child abduction and fraud. The group was formed by motoring enthusiasts initially to aid victims from the December 2004 Asian tsunami. Earlier this year, Zoe’s Ark turned its attention to bringing orphans from Sudan’s Darfur region to France for adoption. Around 300 French families are reported to have paid between 2,800 and 6,000 euros each ($4,000 to $8,600) to Zoe’s Ark to adopt a child from Darfur.

The group chartered a plane scheduled to leave eastern Chad to deliver children to French waiting families. The children were aged between one and ten years old. The group is also alleged to have forged visa documents for the children.

Upon arrest, the charity workers were wearing t-shirts with the slogan bearing the name of the operation: “Children Rescue.” Although Zoe’s Ark had reportedly said the children needed to be evacuated to France for medical reasons, all appeared to be in good health. One official from UNICEF said some of the children were wearing bandages but there were no injuries found underneath them.

Officials from Chad, France and UNICEF have all denounced the operation as a violation of international and Sudanese law. Chad’s president, Irdriss Deby, called the operation “inhuman” and “unthinkable” and that those responsible would be severely punished. He is quoted as saying:

These people ... treat us like animals. So this is the image of the savior Europe, which gives lessons to our countries. This is the image of Europe which helps Africans.

According to the French Foreign Ministry, “Chad, like Sudan – from where the children could have come – are sovereign states that do not authorize adoption. It is currently absolutely impossible for a French family to launch a procedure to adopt a Chadian or Sudanese child.”

In April, Zoe’s Ark had issued a press release saying it wanted to evacuate 10,000 orphans from Darfur. In the statement, the organization said, “We must act to save these children. Now! In a few months, they will be dead.” In August, the French Foreign Ministry had issued a warning about Zoe’s Ark, saying there was no guarantee the children they were helping were orphans. Since the warning, one French diplomat said Zoe’s Ark had stopped saying its aim was to have the children adopted: “They explained that these children would first be housed in France, and we understand that they then explained to the (host) families that there would be a legal battle afterwards to have them adopted.”

The secretary-general of Zoe’s Ark denies the child trafficking charges. Stephanie Lefebvre said, “We never intended for them to be adopted. Our action plan was simple. We wanted to save them from death, by giving them a host family.”

Another Zoe’s Ark representative, Christophe Letien, stated, “this was urgent humanitarian action and not children-trafficking.” Zoe’s Ark website claimed its plan to bring children from Darfur to Europe is justified by the Geneva Convention and international law. It’s reported that Zoe’s Ark gathered prospective adoptive parents from the internet.

A court in Paris is also reported to have launched a criminal investigation into the matter. French police have been investigating Zoe’s Ark’s activities since July.

The prospective families insist they had a right to “save them from death” and planned to protest outside the Chad embassy in Paris. According to one prospective father/host, “local tribal chiefs have guaranteed to the association that each child had lost its entire family and had been abandoned.” One prospective mother/host said she was shocked by how the events were being portrayed, “It is absolutely heinous that the authorities suspect we played a role in child-trafficking. The volunteers at [Zoe’s Ark] are so dedicated. It’s sacrilege to treat them as child traffickers.”

UNICEF officials are attempting to locate the families of the children who are currently being cared for by UNICEF, UNHCR, the Red Cross and other groups. One Red Cross official said that based on its experience in Sudanese refugee camps, there are rarely orphans who are separated from their whole families. UNICEF and the Chadian government said the majority of the children appeared to be Chadian, not Darfurian, and did not appear to be orphans.


Most disturbing are some of the accounts from the children themselves. Some reports state that the children were enticed by candy to leave their homes. One child said:

My parents had gone to work in the fields. As we were playing some
Chadians came and said, "Here are some sweets, why don't you follow us to Adre
and then we'll take you home? We spent seven days in Adre, and I've been
here in Abeche for more than one month. We were well fed by the whites,
there was always food. I would like to go back to find my parents.

Another child said:

A car came with two whites and one black man who spoke Arabic. The
driver said, "Come with me, I'll give you some money and biscuits and then I'll
take you home. We were taken to the white people's house and they gave us
medicine -- small white tablets. I was not ill. All the children
were given pills. They told us that we would no longer be able to go
home.

Another child said:

Whites came and said they would enrol us in school. They came to talk with
our father and he allowed us to go with them. They said they would train us and
that when we are grown up we would get a vehicle.

Social workers treating the children report that they are traumatised, and that the constant flow of visitors and journalists are disrupting the children. And humanitarian aid workers fear being targeted; some cars of aid workers have been pelted with stones. One Chadian social worker sums it up this way:

France and other foreigners made us (Chad) sign a convention on children's
rights. But to our surprise, it was the French themselves who came to take our children, even though they know the law. They didn't respect us. They came in silence to set up their office and kidnap our children.

Usha

Chad to charge French with abduction: prosecutor, Washington Post, October 29, 2007

'Charges near' in Chad child row, BBC News, October 29, 2007

Ordeal of Chad children in 'kidnap' row, BBC News, October 29, 2007

Profile: Zoe's Ark, BBC News, October 29, 2007

Prison 'likely' in Chad child row, BBC News, October 29, 2007

Adoption workers accused of luring Chadian children with candy, International Herald Tribune, October 29, 2007

Belgian pilot arrested in Chad accused of trafficking children, People's Daily Online, October 29, 2007

Europeans risk kidnapping charge over Chad 'adoptions', Yahoo!News, October 28, 2007


French charity blamed for child smuggling, ArcaMax Publishing, October 27, 2007


Bewildered infants await fate in Chad orphanage, Reuters, October 27, 2007

Questions Over Plan for Darfur Children, Sudan Tribune, October 27, 2007


Chad vows to punish French for child smuggling bid, Reuters, October 26, 2007

Charity adoption workers seized at airport for 'trafficking' children, Times Online, October 26, 2007


Authorities Arrest French Attempting to Fly 103 Children Out of Chad, VOA News, October 26, 2007

French NGO Accused of Trafficking Children, UN Integrated Regional Information Networks, October 26, 2007

UN and aid groups criticise 'humanitarian mercenaries', Guardian Unlimited, October 26, 2007

French group under investigation over Darfur adoptions, Yahoo!News UK & Ireland, October 26, 2007

Questions Over Plan for Darfur Children, Sudan Tribune, October 27, 2007

Chad stops group from flying 103 children to France, Reuters, October 25, 2007

Update in an Indian Adoption Scandal -- Kidnap and Adoption

In 2005 another horrid adoption scandal broke in India. In May 2005, the Central Crime Branch of the Chennai police arrested several people for allegedly kidnapping and selling about 350 children to the Malaysian Social Service agency. Also arrested were the director of Malaysian Social Service, P.V. Ravindranath, his wife Vatsala and their son, Dinesh Kumar who were booked under the criminal penal code provision for kidnapping.

Malaysian Social Service placed children for adoption between 1991 and 2001 or 2002. Several of these children had been sent for adoption abroad. Police investigations showed that records relating to children at the agency, specifically the surrender affidavits, bore signatures of false witnesses. Several affidavits didn’t even have signatures. Malaysian Social Service Agency previously lost its license in 1998 after some children who had been reported missing were identified as those that they agency had made adoptable. The agency’s license was restored a few months later and revoked again after the scandal in 2001.

After the news broke, the police were besieged by scores of parents looking for their stolen and missing children. The details about how the children were allegedly abducted over a decade varied. M. Habib said that in March 1998 his wife came to Chennai with their 3 year old son, Amaruddin. While his wife was trying to see the number on the bus, her son was kidnapped. Another woman, Sivakami, said that in 1997 her 1 year old son, Subash was playing outside their house in Pulianthope when he disappeared.

Only a few parents were able to recognize their children from photos seized from the orphanage. Not only had they been given new names by Malaysian Social Service, but reports indicate that the agency did not take pictures of the children when they took them in.

An in-depth report by Frontline in May 2005 of this and other scandals in Chennai traces the root of the problem, of course, to money:

“Foreign adoptive parents pay their local agencies, which send the sums as
‘grant-in-aid’ to their Indian counterparts. It is difficult to find out how
much each parent in the foreign country has paid – but, according to some
estimates, it ranges from $10,000 to $50,000. There is, however, a clear link
between inter-country adoptions and foreign contributions. In fact, many
agencies admit they cannot survive without doing intercountry adoptions.”

Following the arrests, a few parents filed court actions demanding the return of their children. One petitioner said his son Satishkumar was taken in March 1999, another said his four year old son was abducted by a gang in an autorickshaw, and a third said that his 1 year old child had been missing since February 1999.

Last month, a Division Bench of the Madras High Court ordered an immediate investigation by the Anti-Corruption Branch of the Central Bureau of Investigation into all three cases. A special team has been formed to probe these cases. According to one senior CBI official, “We have already collected the case details regarding the adoption racket case. There are a minimum five to six cases that we will be investigating with regard to the illegal adoption of children. The case details show that the children are sold to various parts of the world.”

Usha

Adoption monitoring agency ‘should be given more powers’, The Hindu, May 15, 2005,

Parents can’t identify missing wards, The Hindu, May 9, 2005

Missing child’s photograph identified, The Hindu, May 6, 2005

Police bust child abduction racket, The Times of India, May 16, 2005

Behind the facade, Frontline, by Asha Krishnakumar, Vol. 22, Issue 11, May 21-June 3, 2005

The Big Racket of Small Babies, boloji.com, by Ambujam Anantharam, June 12, 2005

Chennai lady waits for kidnapped son, IBNlive.com, June 30, 2005

Adoption: CBI registers three cases, The Hindu, by K.T. Sangameswaran, October 4, 2007

CBI to register case in child adoption racket, newindpress.com, by K Praveen Kumar, October 3, 2007

Vietnam: U.S. Citizenship and Immigration Services Announcement: Changes in Vietnam Adoptions

USCIS Update - October 25, 2007

Washington - U.S. Citizenship and Immigration Services (USCIS) today announced that the USCIS office in Ho Chi Minh City, Vietnam will have sole jurisdiction over all Form I-600s, Petition to Classify Orphan as an Immediate Relative, filed on behalf of a Vietnamese child on or after October 29, 2007.

In response to growing concerns about irregularities in the methods used to identify children for adoption in Vietnam and the resulting difficulties in classifying those children as orphans, USCIS will centralize processing of I-600s in Ho Chi Minh City. USCIS encourages prospective adoptive parents to file the I-600 directly with USCIS in Ho Chi Minh City before traveling to Vietnam. This will enable USCIS or Department of State officers to determine whether a child identified in the petition qualifies as an orphan as defined in Section 101(b)(1)F) of the Immigration and Nationality Act. This is important because irregularities that may affect the eligibility of the child for classification as an orphan are becoming apparent only after the adoption has taken place and while the parents and child are awaiting resolution in Vietnam. These circumstances have proven difficult to address or overcome for all parties involved.

Prospective adoptive parents are encouraged to file the Form I-600 with the required supporting evidence, other than the adoption or custody decree, by mail or courier with USCIS, Ho Chi Minh City, as follows:

Filing by mail:
United States Consulate General
Ho Chi Minh City
PSC 461 Box 500
FPO AP 96521-0002
Attn: DHS/USCIS

Filing by courier:
United States Consulate General
4 Le Duan Street
District 1
Ho Chi Minh City, Vietnam
Attn: DHS/USCIS

The petitioner will receive a notice of receipt when the USCIS Ho Chi Minh City office receives the Form I-600 and supporting evidence. USCIS will then review the petition and supporting evidence to determine whether the child qualifies as an orphan. In certain cases an administrative field inquiry or a request for evidence will be necessary to make that determination. USCIS anticipates completing most determinations in 60 days.

Once a determination is made, USCIS will notify the petitioner, who may then travel to Vietnam to proceed with the adoption. In cases where it appears the child may not qualify as an orphan, the petitioner will have an opportunity to respond to those findings through established procedures.

USCIS will forward all Form I-600s received in domestic USCIS field offices on or after October 29, 2007 to its Ho Chi Minh City office.

After November 16, 2007, USCIS will not expedite the processing of the Form I-600 solely because the petitioner is in Vietnam. If a petitioner chooses to travel to Vietnam to file the Form I-600 after November 16, 2007, the petition and supporting documents will undergo the same process as those filed and received by mail.

U.S. Citizenship and Immigration Service Announcement, Ethica, 25 October 2007

U.S. Citizenship and Immigration Services Announcement, American Immigration Lawyers Association, 25 October 2007

Desiree

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

Revised information for ordering an audio CD of the presentations is here.

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