The Hague Convention on Intercountry Adoption: An International Treaty that Recognizes the Right of Every Child to a Permanent Family
By Susan Freivalds
A birthmother thinks the child she released for adoption is going to the U.S. to be educated and will then return.
A financially struggling adoption agency folds, taking all its clients' funds with it, when an overseas program temporarily closes.
Prospective adoptive parents are pressured to make an immediate decision to accept a child for whom no medical information has been presented.
Scenarios like these are among the reasons the Hague Convention on Intercountry Adoption was first proposed. The Convention is now sanctioned by countries around the globe, and has won the support of much of the inter-country adoption community in the U.S.
The Hague Convention establishes a framework of cooperation and safeguards intended to expedite the placement of children who need adoption outside of their country, and to protect the rights of the adoption triad. It is the culmination of five years of effort by representatives of over 65 countries and 20 international non-governmental organizations working under the auspices of The Hague Conference on Private International Law.
The Convention safeguards include: mandated homestudies for adoptive parents, prohibitions on inducements to birthparents, and prior approval for children to emigrate to their new countries before their adoptions are finalized. The Convention also calls for the establishment of a "central authority" in each country to oversee appropriate use of the treaty. The Convention will apply only when both countries have approved the treaty. (To understand the origins of the Convention, see History of Hague Convention on Inter-country Adoption, pg. 25).
What is Required For a Country to Participate
Certain duties in an inter-country adoption are assigned to each country; for example, the child's country of origin will establish that the child is adoptable, that intercountry adoption is in the child's best interest, and that the necessary consents to adoption have been given. The receiving country will determine that the prospective adoptive parents are eligible and suited to adopt, and that the child is authorized to enter and permanently reside in his or her new country.
The treaty also calls for the establishment of central authorities in each country and charges them with overseeing the application of the Convention. It requires that adoption service providers be accredited or approved to perform functions in a "Hague adoption." Although the treaty clearly favors non-profit agencies, it does allow "approved" providers to work for profit, but specifically states that no one "shall derive improper financial or other gain."
For most families, the process will be much the same as it has always been: contact an adoption service provider (albeit one with Convention approval), who then proceeds with the adoption by directly contacting counterparts overseas.
The Convention's Status in the U.S. and Abroad
The Convention has been adopted by 39 countries. An additional 11 countries (including the United States) have signed the treaty, a symbolic act indicating intent to seek ratification. For an up-to-the-minute status report, consult the website of the Hague Conference on Private International Law at http://www.hcch.net.
For the Convention to come into effect in the U.S., the Senate must ratify the treaty and both houses of Congress must enact legislation to implement it. Two such bills are in Congress: S.682 sponsored by Senators Helms of NC and Landrieu of LA, and H.R.2909 sponsored by Rep. Gilman of NY and others.
Some of the controversial differences between the two bills include:
1) The amount of identifying information in adoption records to be made available. Both bills restrict access to identifying information, but differ in details.
2) Medical information disclosure to adoptive parents. The Helms bill mandates details concerning medical records and home studies; the Gilman bill defers to state laws.
3) Parents adopting abroad must be married. The Helms bill requires that U.S. children adopted abroad under the Hague Convention be placed with a married man and woman; the Gilman bill has no such requirement.
4) Waiting period. The Helms bill requires a 12-month waiting period for the placement abroad of a U.S. child under the Convention; the Gilman bill imposes no waiting period.
5) Voiding adoptions. The Helms bill allows adoptions to be voided for cause for up to two years; the Gilman bill defers to state law, which generally has a shorter time frame.
Sponsors of the two bills are currently working to reconcile their differences and produce a single bill to be considered in both houses of Congress. At the same time, the Convention will be presented for ratification by the Senate. This will all likely take place during Spring, 2000. Following passage, about two years would be required to establish the Central Authority and to accredit and approve service providers.
For the text of the bills, see http://thomas.loc.gov. Testimony that has been submitted about H.R.2909 can be found at http://www.house. gov/international_relations/full/106first/fullhear1.htm. If you would like to voice your opinion, find out how to contact your Congressional representative by going to http://www.vote-smart.org/.
How The Convention Can Benefit Those Involved
Once the Hague Convention comes into force for the United States, prospective adoptive parents will have assurance that the adoption service provider they are using is experienced, knowledgeable, ethical, and financially sound, because the provider will have undergone a process of accreditation or approval. Service providers overseas will be subject to the same sort of scrutiny by their own central authorities.
The relaxing of orphan visa requirements for "Hague adoptions" would allow U.S. citizens to adopt children who do not meet the current "eligible orphan" requirements, including children with two living birthparents who consent to their adoption and emigration. This change, along with the Convention's requirement that eligibility for immigration be assured before the adoption is finalized, will eliminate most of the uncertainties surrounding the current visa process.
Because the Convention requires its party countries to recognize Convention adoptions finalized in any one of them, re-adoption in the United States will no longer be necessary. The U.S. Central Authority will issue an English-language document certifying that the adoption took place under the Hague Convention. Provisions requiring the preservation of records, including those on the child's origins, will ensure that they will be available, according to the laws of the country in which the records are retained. Finally, Central Authorities could become a positive force in expeditiously facilitating adoptions once a child is identified for inter-country adoption.
Questions and Concerns
While this sounds very positive, concerns have arisen about the Hague Convention and the possible negative effects it might have on inter-country adoption.
While a U.S. Central Authority might improve the speed and efficiency with which inter-country adoptions are handled by assuring that all agencies and individuals involved are knowledgeable and ethical, might not such an authority also become a barrier if it is underfunded and understaffed? Won't the costs of intercountry adoption go up to pay for the central authority and the accreditation process? Won't adoptions take longer as well?
What about the requirements for accreditation? Who will set them and this process restrict the number of adoption service providers? Will only the big agencies qualify?
Just as a central authority will be established in the U.S., every other Hague country must also set up its own central authority. How will these offices be staffed, funded, and supported in countries that are struggling to provide even minimum child welfare services? Might they not become yet another bottleneck in an already difficult process?
To most observers, the governmental agencies charged with implementing the treaty in the U.S. appear to be sensitive to these concerns. They are forming their plans in such a way as to minimize increased costs and delays and to assure continued widespread access to adoption services.
The Joint Council on International Children's Services, a coalition of adoption agencies, continues to monitor the development of legislation and implementation plans to assure the best possible result. For example, Joint Council led the effort to draft accreditation standards that were meaningful but not overly burdensome. Additionally, Joint Council has negotiated with the Council on Accreditation of Services for Families and Children, likely the accrediting entity to which Hague accreditation will be delegated, for an accreditation process that would be less rigorous, costly, and time-consuming than current COA accreditation but that would nonetheless meet the standards required by the Convention.
What Can We Hope For From the Hague Convention?
An unprecedented number of countries have already accepted the Convention as their model, including China.
Countries that ratify the Convention are endorsing the declaration that "the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding." This is the first time that an international document has recognized the superiority of a permanent family, thereby placing intercountry adoption ahead of foster care or institutional care in the child's country of origin. This is an important step.
The Hague Convention is likely to be an essential part of intercountry adoption in the future. It is our challenge to ensure that its implementation in the U.S. lives up to its promise of expeditious adoptions that are in the best interest of the children.
Susan Freivalds was previously Coordinator of Hague Convention Policy for the Joint Council on International Children's Services and a member of the U.S. delegation that drafted the treaty at the Hague. She can be reached at 612-544-6698 or firstname.lastname@example.org.
Sidebar: History of the Hague Convention on Inter-country Adoption Early 1980's
Hague Conference on Private International Law delegates drew up a convention on international child abduction and recognized that no treaty existed to protect children being adopted internationally.
1988 News stories of international adoption of children to serve as organ donors prompted the Hague Conference members that an intercountry adoption treaty was needed.
1990-1991 International adoption abuses in Romania were widely reported in the news media, along with stories about trafficking in children, prompting effort to draft a world-wide convention.
1994 United States signs the Convention, indicating intent to seek ratification.
1993-1999 39 countries adopt the Convention and come under its provisions.
1999 The treaty is transmitted by President Clinton to the Senate for ratification; and implementing legislation is introduced in both houses of Congress.
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