Current Status of Guatemalan Adoptions

Guatemalan adoption has undergone numerous changes over the years, and new proposals for change surface routinely. This page offers a summary of the current situation. Please note that this is a very brief summary of a complex legal and political situation, and does not come close to covering all of the details and complexities involved.

If you see anything here which you feel is in error please email us and we will review the issue you raise and include any corrections in a future update. This page last updated 23 September, 2005.

Please note: We are parents with experience with Guatemalan adoption and involvement in assisting other families. However, we are neither adoption professionals nor lawyers. This document represents our best understanding, but may contain errors. In addition there are many interpretations of and views on the current situation. Please be sure to consult your agency if you want advice from an adoption professional, and your attorney for legal advice.

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Proposed Changes in Adoption Law

The Guatemalan Congress currently has before it a relatively new adoption law proposal, which is in the discussion and debate process. However, the future of this law is in doubt at this time; see below for details.

This proposal is apparently based on one made earlier in the year by members of the Guatemalan Congress. The current version was hashed out at a lengthy meeting held on July 29, 2005 among representatives of the Congress, the government Human Rights office, the office of the President, the attorney general's office (called "PGN"), and others, apparently including non-governmental organizations but not including those involved in adoption.

The proposal was approved by the Commission on Children and the Family on September 2, 2005 (for US readers, this is equivalent to approval of a committee of the US Senate or House); see the Guatemalan Congressional web site for the announcement in Spanish. It is not clear whether any changes were made to the proposal between the July 29 meeting and its approval by the Commission on September 2.

This law would:

You can read the full text of the proposal, in Spanish, as approved by the Commission on Children and Families here. For Sep 3 press coverage on the law in Spanish from the Guatemala daily Prensa Libre click here.

The head of the Commission which approved the proposal also states that it would reduce the time for processing of adoption cases from 4 months to 60 days.

The September 3 Prensa Libre article notes that one significant remaining point of disagreement is the proposal's ban on single-parent adoptions, because there are legislators who strongly believe in allowing single adoptions. Earlier coverage of the July 29 meeting indicates that the law has the support of Guatemalan President Oscar Berger, and also of Jorge Méndez Herbruger, the head of Congress. However, no single party in Congress has a majority, and it is not clear whether this bill has majority support.

Under Guatemalan law, for a proposed law to be implemented it must be "read" in the Congress three times, and all relevant congressional committees must comment. Often the first and second readings are formalities, and any real debate takes place at the third reading. (In fact other adoption law proposals made in the past have passed their first and second readings, but never came up for, or failed at, their third readings.)

This bill was taken up by Congress and passed its first reading on Tuesday, September 13, 2005. It passed its second reading on Thursday, September 22, but action on a third reading was then suspended. According to a September 23 article in Prensa Libre, consideration was suspended because "It appears that the groups which supported it originally now believe that it needs to be reformed." At this point the law could be re-introduced in its original form or with changes, or could die due to lack of consideration. Past efforts at adoption reform which have been suspended after a third reading have then died, but there is no guarantee that that is what will happen to this one.

Additional Information and Commments on the Law

For additional information and to stay up to date with changes immediately, see the Guatemala-Adopt email list (our resource list has details on Guatemala-Adopt).

Our understanding of the law is that it might allow attorneys to continue be involved in some portions of the adoption process, but would not allow them to find birthmothers wishing to place their children. The role of linking birthmothers wishing to make an adoption placement with attorneys who could process the adoption, and of supervising adoptions generally, would be given to PGN.

In this regard the proposal might be effective in eliminating or limiting the role of the "intermediaries" attorneys use in locating birthmothers. Since the intermediaries charge very high fees and are unregulated and often untrained, we believe their role is a weak link in the ethical handling of adoptions, and changes which limit that role and/or reduce their fees would be welcome.

However, PGN does not have a track record of handling adoptions smoothly. If this change results in additional delays and bureaucracy, or makes it more difficult for mothers who want to place their children to enter the system, it could easily be counterproductive despite its good intentions, as frequently happens with adoption reform legislation. The law does not appear to offer any additional resources to PGN to perform the duties it would acquire.

In addition we do not support the proposal's ban on single adoptive parents.

While the head of the Commission on Children and the Family states that the law will reduce the PGN processing time from 4 months to 60 days, in other countries the history of new laws which attempt to both "streamline" and reform international adoptions has been that the process becomes more difficult. Hopefully this would not be the case in Guatemala, but without detailed information on the actual practices which the law would dictate, it is difficult to say whether it would in fact reduce the adoption timeframe, increase it, or leave it unchanged.

According to knowledgable sources this law also appears to have several provisions whose constitutionality is questionable under the Guatemalan constitution. These include the ban on singles, the possible elimination of attorneys from the process or portions of it, and the restriction of choices for birth families. If it were to pass it is very likely that there would be a court case challenging the law on these issues and perhaps others.

Important Notes on Single-Parent Adoptions and Adoptions in Process

This law proposal contains terms specifically stating that cases in process at the time it goes into effect would continue to be processed under the old system ("in process" would most likely be defined as cases with a Power of Attorney filed prior to the effective date of the law, though the actual definition is not clear at this time).

Accepting Referrals

Because the process is currently functioning as it has for many years, most agencies continue to offer referrals of children from Guatemala. However, as discussed above, there is now a proposal on the table which might significantly change the current system.

If and when this proposal passes it will almost certainly delay adoptions temporarily, and might reduce the number or increase the length of time they take. Any such change would likely take time to set up, and most observers agree that it would be unlikely to affect cases which were pending at the time the change occurred.

Whether you should proceed with a referral depends on your tolerance for risk and how well you feel your agency will manage the situation if the risk (of a change in the process) becomes a reality. This is not essentially different from the risk which accompanies all international adoptions, as any country's process can change. However given that there is an explicit proposal for change, the risk is probably higher in Guatemala at this time than it is in some other countries, or than it was in Guatemala in years prior to 2003.

We recommend that, if you choose to consider referrals from Guatemala at this time, you do so through an agency with a clear, written risk management policy which spells out your and their financial risks and obligations in the event of further delays or disruptions. While this is good agency practice at any time, it is a bit more important now.

We do not recommend starting the adoption process with agencies that do not inform you clearly of the changes and uncertainties in the process, that state flatly that there will be no changes or that delays are not expected, or that do not have such a risk management policy.

Historical and Political Background

The Political Debate on Adoption

The political debate over adoption within Guatemala is quite polarized and sometimes publicly so. While it is not an issue which captures the attention of most Guatemalans, it has nevertheless been highly publicized, with articles appearing from time to time in the papers criticizing the current system in sensationalistic language.

The charges in such articles have rarely been substantiated, but have an effect nonetheless. An association of lawyers and agencies involved with adoption has undertaken to defend the current system, and has launched its own publicity campaign to counterbalance the long-standing anti-adoption media campaign. This organization (Asociación de Defensores de Adopción or "ADA") has advocated some systemic changes to answer charges that the system is open to unethical practices and is insufficiently "transparent". The organization was formed by a core group of lawyers who blocked the implementation of the Hague convention on adoption by appealing to the Guatemalan Supreme Court and pointing out ways that the Hague implementation was not consistent with the Guatemalan constitution.

Historical Timeline

The brief history of recent disruptions and political debate related to the Guatemalan adoption process is as follows. The net result is that, for now, the process is functioning as it did prior to March 2003, and as described in our document on The Guatemalan Adoption Process. However, there are changes being proposed as described above.

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