TO REGULATE OR NOT TO REGULATE: THE NEED FOR COMPLIANCE WITH INTERNATIONAL NORMS BY GUATEMALA AND COOPERATION BY THE UNITED STATES IN ORDER TO MAINTAIN INTERCOUNTRY ADOPTIONS

• Author: Laura Beth Daly
• Published date: 01 October 2007
• Date: 01 October 2007
• DOI: http://doi.org/10.1111/j.1744-1617.2007.00175.x

FAMILY COURT REVIEW, Vol. 45 No. 4, October 2007 620–637

© 2007 Association of Family and Conciliation Courts

Blackwell Publishing IncMalden, USAFCREFamily Court Review1531-2445© Association of Family and Conciliation Courts, 2007XXXOriginal Articles

Daly/TO REGULATE OR NOT TO REGULATEFAMILY COURT REVIEW

NOTES

TO REGULATE OR NOT TO REGULATE: THE NEED FOR

COMPLIANCE WITH INTERNATIONAL NORMS BY

GUATEMALA AND COOPERATION BY THE UNITED STATES IN

ORDER TO MAINTAIN INTERCOUNTRY ADOPTIONS

Laura Beth Daly*

The United States will be entering into force the Hague Convention on Protection of Children and Cooperation

in Respect of Intercountry Adoption by the end of 2007. At this time, all intercountry adoptions that occur

between the United States and one of the 70 other countries that also have entered the Hague Convention into

force must be done according to Hague protocol. Guatemala has entered the Convention into force but its adop-

tion practices do not currently align themselves with Convention requirements. The U.S. State Department has

threatened that intercountry adoptions between the United States and Guatemala will come to a complete stop

if Guatemala’s conditions are not reformed. One out of every 100 children born in Guatemala is adopted by an

American family and in the 2006 fiscal year, the United States adopted 4,135 Guatemalan babies. This high

number placed Guatemala as the second country from which the United States adopted the most children in 2006

second only to China. A structured compromise must be established between the United States and Guatemala

in order to ensure the continued provision of homes to Guatemala babies in America while Guatemala reforms

its malignant adoption practices.

Keywords:

Guatemala

;

intercountry adoption

;

Hague Convention on Protection of Children and Cooperation

in Respect of Intercountry Adoption

;

Intercountry Adoption Act

;

baby sellers

;

entry into force

;

orphan visa

;

U.S. State Department

I. INTRODUCTION

Imagine being 12 years old, pregnant, unmarried, and living in impoverished conditions

in the isolated countryside of Guatemala. Your only desire is to be able to provide a loving,

healthy, and safe environment in which your child can grow up, but given your age and lack

of resources, you turn instead to others in your community who might be able to help you

provide such a home for your child. You are unsure of these people’s motives and creden-

tials, especially because they pay you money for your baby and insist that your dealings

remain secret. You have heard rumors that a market exists overseas for babies as organ

donors, but you have also heard that the jaladoras (“baby brokers”) can place your child on

the path to being adopted by an American family.

1

You are being forced to sell your new-

born baby because you have no other viable options. You do not even know if your baby

will be placed with a family abroad or if he or she will be handed over to a crowded Gua-

temalan orphanage.

2

You may not be aware of it, but the infant mortality rate for your coun-

try in 2002 was at 36 deaths per 1,000 births, which was among the highest in the Western

Hemisphere.

3

Of those children who do survive birth in Guatemala, roughly 50% of them

are chronically malnourished.

4

Regardless, you realize your baby will have a better chance

Correspondence: laurabdaly@gmail.com

Daly/TO REGULATE OR NOT TO REGULATE621

at a healthy life with an American family than with you. You take the money from the baby

brokers and relinquish your child with the hope that somewhere down the line he or she will

be adopted by deserving parents in the United States.

Unfortunately, Guatemalan mothers who find themselves in situations like this have sub-

stantial cause for concern because their children may well be barred from being adopted by

American families. Due to the enforcement issues regarding an international convention and

domestic legislation within both the United States and Guatemala, the U.S. Department of

State has warned American citizens that intercountry adoptions between the United States

and Guatemala may come to an absolute halt in 2007 if Guatemala does not reform its adop-

tion practices.

5

This would have disastrous effects on the lives of children in Guatemala and

the thousands of prospective American parents who seek to adopt children from Guatemala

every year. Presently, 1 child in every 100 born in Guatemala is adopted by an American

family.

6

From 1995 to 2005, there were 18,298 Guatemalan babies adopted by American

couples.

7

These are significant numbers in the intercountry adoption context. Guatemala

was ranked in 2006 as the second country, behind China but before Russia, from which the

United States adopted the most children.

8

The critical need Guatemalan children have for

available and secure homes cannot be ignored because the United States wants to discon-

tinue adoptions for political and legislative-based reasons.

This Note will advocate that the United States set up a structured framework to assist

Guatemala in its attempt to implement the Hague Convention on Protection of Children and

Cooperation in Respect of Intercountry Adoption (“Hague Convention” or “Convention”)

and continue intercountry adoptions even if Guatemala has not fully implemented the Hague

Convention by the time the United States enters it into force in mid 2007.

9

This should be a

temporary plan in which Guatemala will pass Convention-implementing legislation and

reform their adoption practices, with the U.S. State Department and adoption advocates in

Guatemala and the United States as oversight bodies. The United States has the ability to

effectuate this goal through provisions in its Intercountry Adoption Act (“IAA”)

10

and the

Hague Convention itself.

11

This Note is not proposing a permanent exception in U.S. legislation to enforcement of

the Hague Convention with Guatemala. Conducting intercountry adoptions between the

United States and Guatemala according to the Convention is the ultimate long-term goal.

However, for the immediate future, it would be highly advantageous to delay enforcement

of various provisions of the Hague Convention for the benefit of Guatemalan children in

need of homes and prospective adoptive parents in the United States. Specifically, the

United States should not ban adoptions with Guatemala once it enters the Convention into

force in mid-2007 even if Guatemala has not fully implemented the Convention. This pro-

posal will be contingent upon Guatemala’s efforts to align its adoption practices with the

Convention in a timely and appropriate manner.

Section II of this Note will discuss the history of the Hague Convention, the duties of

the receiving and sending countries party to the Convention, and the status of its imple-

mentation in the United States and Guatemala. Section III will describe the existing

intercountry adoption practices in Guatemala, the U.S. State Department’s response to

Guatemala’s situation, and the response of other Hague Convention countries to Guatemala’s

adoption crisis. Section IV will propose a solution to this dilemma in the form of a com-

promise between the United States and Guatemala in order to ensure the continuation of

intercountry adoptions and textual sources of authority for this solution from the IAA and

the Hague Convention.

12

Section IV will also discuss past situations where other countries,

such as Romania and Cambodia, have experienced barring of its adoption borders to other