Guatemalan Adoptions and the Hague Convention

Please note: This section offers our best understanding on the issue of Guatemalan adoptions to the US and the Hague Convention. However, the situation is fluid and confusing; we are not international law experts; and nothing here can be guaranteed to be accurate now, nor to predict the future. Please consult with your agency and other advisors before making decisions related to this (or any other adoption-related issue). Also note that this document is focused on the US situation with regard to the Hague Convention, and most of it does not apply to adoptions between Guatemala and other countries.

Last updated: 17 Feb 2007

The information below includes:  

Introduction

The Hague Convention on Intercountry Adoption is scheduled to go into force in the US sometime in late 2007 or early 2008, and may significantly affect adoptions from Guatemala. This page explains the Hague Convention, the legal issues surrounding its implementation in the US and Guatemala, the possible effects, and recommendations for what adoptive families can do.

We have focused here on the legal and practical situation with regard to the Hague Convention. The Convention offers a potentially very positive approach to streamlining international adoptions and reducing problems and corruption, but in practice has proved difficult to implement. Some feel will it likely have the opposite effect of making adoptions more difficult and bureaucratic, and that it has already done so in many cases.

These are very important issues, but they are not covered here; instead we have focused specifically on the Hague Convention as it relates to Guatemala.


What is the Hague Convention?

The Hague Convention is a short name for the Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption. This is an international legal document created in May of 1993 through the Hague Conference on Private International Law, a global inter-governmental organization which develops conventions (similar to treaties) promoting mutual agreement and compatible legal procedures among countries. (In the remainder of this document we use HCICA for Hague Convention on Intercountry Adoption, and ICA for intercountry adoption.)

The HCICA was intended to safeguard children's interests, establish systems for states (countries) to cooperate to protect those interests, and ensure that adoptions carried out in one state in accordance with HCICA would be recognized by other states. It was expected to standardize and streamline ICA procedures; promote a clear, open, and predictable process; and create a legal framework where each state (country) could rely on the integrity of the legal process in other states.

To accomplish this, HCICA sets broad, general standards for both legal procedures and ethical practices in ICA. It also requires a "Central Authority" to oversee the adoption process in each country, and requires that adoption and foster care providers be certified by the Central Authority, or someone they delegate, in order to work in intercountry adoptions with other Hague countries.

The HCICA only covers adoptions between states which are have agreed to abide by it, often called "Hague countries" in the adoption world. Adoptions between Hague and non-Hague countries are not prohibited by HCICA, and are not affected by it.

A country can become a Hague country in two ways. If the country participated in drafting the Convention then it can "ratify," "accept" or "approve" it (all have about the same meaning), and is then bound by its terms after a 90-day delay. If the country did not participate in the drafting then it can "accede" to the Convention, and is again bound by its terms after a 90-day delay, except in relation to any other Hague countries which object to the accession.


Is the US a Hague Country?

Not yet. The US helped draft the HCICA, signed it in 1994, but has (wisely) chosen not to formally ratify it until implementing legislation is developed, so that all the internal US procedures are in place before HCICA goes into practical effect. That process has taken a very long time, but is almost complete. The US Department of State (DOS) has been designated as the Central Authority and has developed the regulations, which cover accreditation of adoption agencies, liability, service standards, and many other aspects of the adoption process.

The US expected to become a Hague country in 2007, but this date has been repeatedly pushed back and our best estimate is that it now will not occur until at least early 2008 (despite US State Department statements which still suggest it will occur in 2007).

This is because US procedures required for HCICA ratification are not yet complete. Here are the three major steps required and their status:

The steps discussed above, particularly the agency accreditation process, will require considerable time to complete. This is why we estimate that Hague ratification will not occur until at least early 2008.


Is Guatemala a Hague Country?

Sort of. Guatemala was not a party to drafting the HCICA and cannot ratify it, and so must agree to it through accession. In November of 2002 the President of Guatemala sent documents to the Hague acceding to the Convention, with Congressional approval. The Attorney General's office (PGN) was chosen as the Central Authority. These steps were taken in some haste and under political pressure, and therefore without creation of any implementing legislation. As a result they had a very disruptive effect on adoptions in 2003 as there were no procedures in place for HCICA-compliant adoptions.

There was also a major legal problem: The Guatemalan constitution does not permit accession to treaties, only ratification, and the terms under which Guatemala agreed to the Vienna Convention (which governs all international treaties) complicated this matter further. As a result the accession to HCICA was declared unconstitutional by Guatemala's Constitutional Court in August 2003, and adoptions then continued under the previous system. Little work has been done since to develop Hague-compliant procedures, and within Guatemala the legal view seems to be that Guatemala is not a Hague country, and cannot become one.

However, because Guatemala's original accession was properly documented under international legal standards, and Guatemala did not withdraw from HCICA when the accession was declared unconstitutional, under international law Guatemala is considered a Hague country by the Hague Conference and by other countries, including the US.

This US view has created pressure on the Guatemalan government to complete a system which complies with HCICA so that adoptions can continue. Additional details on what may happen with this are below.

In early 2007 the Guatemalan government and Constitutional Court began to address the complex international legal issues related to the Vienna Convention and the powers of the different branches of the Guatemalan government to accede to treaties. This step appears intended to pave the way for proper HCICA ratification by Guatemala.


What Will Happen Next?

US procedures for HCICA are not yet complete, as described above, and we do not expect them to be completed until at least early 2008.

Once HCICA is ratified by the US, we can expect the US to treat Guatemala as a Hague country, as described above. If this happens and Guatemala does not have in place HCICA-compliant adoption procedures, then adoptions from Guatemala to the US will stop until the legal situation is resolved.

There are several developments which could change this outcome and allow adoptions to continue:

In sum, the situation is unclear and many things are possible, ranging from closure of Guatemalan adoptions to the US, to a reasonably efficient system under HCICA, to continuation of the present system without HCICA. Neither the timetable nor the outcome can be predicted at this point, but most efforts within Guatemala seem to be focused to creating a system which is truly HCICA-compliant. Whether it will be efficient or reliable, and whether it will be dominated by those who oppose or support ICA, remains to be seen.


What Should Families do About the Adoption Process Now?

The first step in deciding what to do is to realize that all ICA carries risks. Any country can close to ICA at any time, and closures or temporary stoppages have occurred within the last decade in a wide range of "sending" countries from Russia and Eastern Europe to Asia to Latin America. Therefore, when beginning the ICA process you and your agency should be aware of the risks and discuss how to manage them. The agency should have written policies which tell you exactly what will happen if adoptions from the country you choose are disrupted (for example, what happens to funds already paid, can you obtain a referral from another country, etc.).

Most adoptions from Guatemala take 6 - 9 months. US families already in the adoption process as of early 2007 probably do not need to be concerned as their adoptions will almost certainly complete before HCICA might go into effect. For prospective adoptive families, at the time of this writing (February 2007) we see little reason not to begin an adoption now, as the adoption is also likely to be completed before HCICA might go into effect between Guatemala and the US.

In addition, while it is not guaranteed, adoptions which are in process at the time HCICA goes into effect likely would not be disrupted by changes due to HCICA. This is both a long-standing DOS view, and a provision of the HCICA itself. While the definition of "in process" is not clear, the possible options are based on filing or approval of the US CIS I-600A form, acceptance of a referral, or filing of paperwork for a referral at the US Embassy in Guatemala. All of these steps occur relatively early in the adoption process, so in our view chances are that cases begun even just a few months prior to HCICA ratification by the US will likely complete without disruptions due to the Convention.

They key steps we believe prospective adoptive families can and should take are:


Important Caution about Political / Pressure Campaigns

During the process of Hague Convention implementation, particularly since the start of 2006, there have been numerous rumors about what would happen between the US and Guatemala. Most have proved to be false. We caution adoptive parents and others to avoid acting on information which has not been carefully confirmed.

In particular, some adoption agencies which have not exhibited this kind of caution themselves have engaged in panicked campaigns requesting that their clients contact US congressional representatives with urgent messages about pending changes in Guatemala. More often than not, the information on which these campaigns are based turns out to be false or misinterpreted, or the request turns out to be an overreaction. The net effect of these campaigns is more likely an erosion of credibility than a useful response.

In addition, campaigns for US intervention in internal Guatemalan matters carry many risks for historical and diplomatic reasons.

We strongly encourage you to use the resources listed on our Resources page, particularly the Guatemala-Adopt email list, to carefully confirm the situation and understand the pros and cons of any such requests before acting on them.