The Hague Convention: In Treaty We Trust
For the first time ever, the United States will establish a federal authority to oversee most international adoptions—how they’re processed, who will conduct them, and where you can air your grievances. Here’s what you need to know about this important international treaty.
by SUSAN FREIVALDS
The U.S. Department of State recently announced that, after years of preparation, The Hague Convention on Intercountry Adoption will finally be ratified and implemented in the United States. Perhaps as soon as the end of next year or early 2008, all international adoptions between the U.S. and other nations that have joined the Convention will be guided by its regulations.
What is the Hague Convention?
This international treaty, completed in 1993, is the first-ever agreement designed to govern the adoption process and protect children being adopted across national boundaries. Through their participation, the U.S., China, Guatemala, and more than 60 additional countries have signaled their intention to legitimize international adoption by agreeing that:
Every child has the right to a permanent family, even when that family is in another country.
Adoption of children between countries should take place via agreed-upon procedures that are ethical and orderly.
As with any international treaty, uncertainties about the agreement’s impact abound. Will more regulation mean added expense to adoptive parents or to smaller adoption agencies, thereby forcing them out of business? Do new rules mean the already high cost of international adoption will increase? Will the U.S. refuse to work with countries, such as Guatemala, that have ratified but not yet implemented the Convention’s mandates?
These are significant questions for the adoption community and for Americans hoping to grow their families through international adoption. But the Hague Convention holds great promise for fewer opportunities for exploitation and for increased transparency in the adoption process.
Why is an international agreement important?
During the early 1990s, international adoption was so unstable that the very institution seemed at risk. In many countries, incorrect health information, or none at all, was given to adopting parents. In Romania and elsewhere, unscrupulous middlemen were involved. The U.S. lacked national standards for adoption practitioners and transparency in the process. During this time, many countries—including Romania, Peru, El Salvador, Brazil, and Paraguay—closed their programs or severely restricted the number of children they allowed to be adopted abroad.
In this environment, representatives from more than 65 countries met to develop common safeguards, standards, and practices that would protect internationally adopted children. Since the early days of international adoption, countries like South Korea have demonstrated that an orderly process can be established and supervised by governments. China based its process on South Korea’s model, and these two countries, among others, have shown that a safe, efficient process can place children quickly and at a reasonable cost. There is much hope that the Hague Convention will bring a similar standard to other nations, replacing the current hodge-podge of procedures with a more rational, common process.
How will the treaty affect U.S. adopters?
Since signing the Convention in 1994, the U.S. has passed implementing legislation, obtained the Senate’s consent to ratify the treaty, and prepared new regulations to govern Hague adoptions. The particular challenge for the U.S. is that, unlike countries such as China or Russia, we do not have a tradition of centralized, government-supervised social welfare programs. Instead, international adoption takes place primarily under the auspices of private adoption agencies, attorneys, and social workers, all subject to their respective state laws. After a great deal of negotiation, the U.S. has established a list of standards that the State Department will use to supervise agencies and service providers.
Hague Convention 101
- Hague regulations will govern only international adoptions from other Hague countries. Adoptions will continue as always from non-Hague countries.
- Adoption agencies and other service providers will pass a rigorous accreditation process (financial stability, ethics, expertise). The impact on adoption cost is not yet known.
- Adopters will have access to a national database of verified complaints about adoption agencies/providers.
- New immigration procedures will identify children by name to assure them entry into the U.S. before adoption.
- Sending countries will agree to maintain background records for all children placed in international adoptions.
These new Hague regulations apply only to adoptions that take place between two countries that have approved and implemented the Hague Convention. Adoptions from non-Hague countries will continue as they have in the past. Since more than half the children entering the U.S. through international adoption come from Hague countries, such as China, Guatemala, and India, many adoptions will be subject to these new laws. Even so, the process for adopting parents will change very little once the treaty is implemented. Families will still select an agency or social worker to provide a homestudy, choose the same or another agency (or another adoption service provider) to refer a child for adoption, and complete immigration paperwork through the U.S. Citizenship and Immigration Services (USCIS).
The impact of the new treaty will be felt more strongly by agencies and individuals providing services in adoptions covered by the treaty. Here is how the Convention will impact national adoption oversight.
National Authority: The Hague Convention requires that each country designate a national authority to oversee international adoption. In many countries, such organizations already exist. For example, the China Centre for Adoption Affairs has been supervising Chinese adoptions for more than a decade. In the U.S., the Department of State will be the supervising agency.
Accrediting Entity: Each country must designate entities to review and accredit all adoption service providers as to their ethical practices, financial stability, and expertise. In addition to adoption agencies, attorneys, facilitators, and social workers who are involved with child placements will need to be accredited; those who solely perform homestudies will not.
In the U.S., the Department of State has chosen the Council on Accreditation (COA) to be the primary entity charged with accrediting adoption service providers. Founded in 1977, the COA is an international, not-for-profit child- and family-service and behavioral health care organization that specializes in this sort of review process. The State Department may allow a number of state licensing offices to perform accreditation, as well.
The U.S. cannot ratify the Hague Convention until all agencies that have applied for accreditation are examined. (For complete regulations governing the accreditation of agencies and individual service providers, see travel.state.gov/family/adoption/implementation/implementation_2912.html.)
National Complaint Database: The Department of State will investigate and maintain a database of substantiated complaints against accredited service providers. This important advance will improve accountability, as adopting families will be able to check on adoption agency backgrounds through a single database. Adoption service providers with questionable records will be subject to increased scrutiny.
How will service providers be accredited?
Once the COA and other accrediting entities are ready to begin reviewing service providers under the new Hague regulations, interested adoption agencies and service providers will have 60 days to submit an application. The COA expects the application period to begin in September or October of this year. The COA will spend the following 12 months or so reviewing all the applications it received, and will accredit the service providers who meet the regulations. When that process is complete, the U.S. will be ready to ratify the Convention.
To be accredited, providers must agree to annual financial reviews and must furnish proof of a state license and of financial stability. They must also agree to disclose fees, policies, and procedures to prospective adopters. Adoption agencies must ensure that homestudies meet the requirements of the child’s country of origin, and must offer parents 10 hours of pre-adoption education.
A downside of so many requirements, however, is that many smaller agencies may be unable to meet the Hague’s high standards due to the expense of compliance. Such an agency may choose to partner with a larger organization, or to leave the field entirely.
What information will parents receive?
The Hague Convention requires that countries placing children for adoption internationally must provide adopting parents with comprehensive information. The U.S.’s implementing legislation specifies that adopting parents receive translations of medical records no later than two weeks before travel or the actual adoption. Although this requirement does not necessarily ensure more complete or more reliable medical information, it does emphasize greater openness. Participating countries must also certify that no undue influence was placed on the child’s birthparents to place the child for adoption.
Countries participating in international adoption must also maintain background information and adoption records. Each country can set a limit on how long the records must be held. The U.S., for example, will require that adoption records of all children coming into the U.S. from another Hague country—and the 200 or so American children being placed abroad in other Hague countries—be held for a minimum of 75 years.
How will immigration procedures change?
Under the new law, U.S. immigration officials must approve the entry of a specific child into the U.S. before the adoption is finalized abroad. Right now, adopting families are given an I-600A form that provides general approval for the family to bring an adopted child into the country without specifying the child’s name.
The general I-600A was helpful on those rare occasions when a foreign adoption was not completed overseas, for health reasons, for example. Parents could then use the same immigration form to adopt a different child. This may no longer be possible, although the specific regulations governing this situation have not yet been published. However, the change in documentation will certainly eliminate some of the problems—including the U.S.’s refusal to grant a child entry into the country—that have been known to arise from irregularities and red tape.
The U.S. implementing legislation also allows for a broader definition of “eligible orphan.” In the past, U.S. immigration policy required that an internationally adopted child be a true orphan (i.e., both parents deceased), be legally abandoned, or have a sole surviving birthparent who could not care for him. Under the Hague, a child with two known birthparents can be be eligible for adoption as long as they are both unable to “meet his needs under standards of country of origin.” One advantage to this new definition is that birthmothers relinquishing children for adoption into the U.S. may no longer feel they have to lie about the existence of a father, allowing adopting families access to more accurate information.
A new day
All changes bring uncertainties. But once the Hague Convention is ratified and implemented by the United States, adoptive parents will know that intercountry adoptions are taking place ethically and with accountability. For the first time, these parents will have one central source of information about those working in intercountry adoptions, a system for registering complaints about malpractice, and the right to information about substantiated grievances.
The legacy of the Hague Convention may be the long-term survival of intercountry adoption. Under the treaty, countries can confidently report to their citizens that the adoption process is structured, open, and free of corruption. Without that guarantee, many governments might bow to political pressure and close their borders to foreign adoptions. Instead, U.S. ratification, followed by careful implementation, may help keep intercountry adoption alive for decades to come.
Susan Freivalds, an adoptive mother, is the founder of Adoptive Families magazine. She was a member of the U.S. delegation to the meetings that prepared the Hague Convention.
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