ADA News (English)

Although the adoption laws in Guatemala and in the United Status remain the same, and both countries state their willingness to keep adoptions open for those children in need of family, different factors have created uncertainty among the adoptive families, the adoption professionals and hogar directors. Let us analyze them.

1.THE SITUATION OF MARY BONN
The charges brought against the American adoption facilitator Mary Bonn for smuggling a Guatemalan child – previously adopted by an American couple - into the United States, are casting doubts over the thousands of perfectly legal adoptions made every year. We welcome the strict scrutiny of each case, provided it is done in due time, because it would help to dispel the accusations that are made against the adoptions of Guatemala children.

We have proposed to do a second DNA after the adoption is finalized and before the child leaves Guatemala, to establish that the child relinquished by his birthmother is a match to the child already adopted.

Nobody wants his or her child to be stigmatized as “stolen” and if a second DNA and a couple of weeks of extra waiting would eliminate that, we believe that it should be done, instead of treating each adoption as a pending investigation of a felony.

2.THE PROTOCOL OF GOOD PRACTICES.
President Oscar Berger insists in presenting again the Protocol of Good Practices. Invites have been sent by the Vice president Eduardo Stein and the first lady, Wendy Widmann de Berger to the ceremony of presentation, this Thursday March 1st., at the National Palace of Culture. None of the adoption attorneys or Hogar directors were invited.

This bold act of total disregard of the existing legal system and the limits set by the Constitution is a felony and if they go ahead with their plan to derail the system, criminal charges will be brought against them.

If they go ahead and enforce the Protocol, the effects of the Protocol of Good Practices would be the following:

A ) The Protocol would order the SUSPENSION of all adoption processes, that is to say, the already started adoptions (even with a recorded power of attorney or a matching DNA) as well as those started after the Protocol of Good Practices is enforced. The existing processes would neither be honored nor finalized. The Secretary of Social Welfare would be in charge of finding another adoptive family to the children, disregarding the rights of birth mothers of doing so, and the rights of the adoptive families who already accepted their referrals. In Guatemala, adoption has a contractual nature, which leaves to the parents (biological and adoptive), the freedom to agree to the adoption, without the intervention of the State, just like it happens with marriage, where the oversight of the State is limited to the fulfilling of the legal requirements for its validity. To give to the State the power to do the matching, either in marriage or in adoption, happens only in non democratic countries, where the paternalistic figure of the government takes away the privacy of the citizens.

B) The Protocol would order that all children who are placed for adoption, even those whose birthmothers relinquished them would have to undergo a process of protection against the violation of human rights, that actually is a process to try to locate relatives who would take them in, situation that does not equal to an adoption, because the children who live with relatives have no inheritance rights and do not get the name of the family who fosters them. It deprives the children of the rights that the adoption gives to the adopted children, leaving them at mercy of the relatives who may treat them as well or as bad as they want.

C) According to the Protocol, the only entity that can facilitate adoptions is the Secretary of Social Welfare, entity that currently does not care for the orphans or abandoned children. That rule violates not only the rights of the parents but the rights of the lawyers and notaries to intervene in the adoptions processes, established by the Constitution.

D) Besides bringing adoptions to a halt, the worst of the Protocol is that it does not establish funds to support the children who would no longer be in foster care or in private orphanages, which also would have to get authorization from the Secretary of Social Welfare, in order to keep caring for the children, without getting the financial aid to do it.

Before panicking, keep in mind that the LEGAL PROCESS OF ADOPTIONS IN GUATEMALA REMAINS UNCHANGED. The abuse of power of the Executive does not change the laws and Congress will not remain silent while the President usurps its power to legislate, violating not only laws legally enacted by Congress, but the Constitution itself. ADA is poised to use all the legal resources to prevent the PGN from enforcing the suspension and will not hesitate to exercise its legitimate right to file criminal charges against the authorities who obey the arbitrary orders of the Executive power.

Guatemala may be a small, poor country, but thus far is the only country in Latin America that still does the only kind of adoption that works: private adoptions with State supervision. It is also the only country that was entangled by the arbitrary implementation of the Hague Convention and found the way back to the legal system that is still valid today and will remain valid even if the atrocity that the Executive is planning, becomes effective.

3.THE CONSTITUTIONAL COURT OPINION
Recently, the Constitutional Court gave an opinion about who has the power to withdraw the reservations made by the Ministry of Foreign Affairs in 1997, to a treaty that establishes all the rules that countries must follow to become parties to international conventions. It is the Vienna Convention on the Law of Treaties of 1969. At that time, Guatemala’s Ministry of Foreign Affairs deemed that Guatemala could only become a member to a convention if it was duly celebrated and then ratified. Accession was not in compliance with the Guatemalan Constitution, so in order to preserve its integrity, the President of Guatemala and the Ministry of Foreign Affairs made reservations to some of the articles of the Vienna Convention, stating that Guatemala was not bound by them because those articles violated our Constitution. The accession of Guatemala to the Hague Convention on intercountry adoption was ruled unconstitutional by the Constitutional Court based on the limits that the Constitution sets to the President, which were clearly established by the reservations made to the Vienna Convention. A fair summary of the ruling can be found at the website of the American Society of International Law:
http://www.asil.org/ilib/ilib0618.htm

It may surprise you that the Ministry of Foreign Affairs in 1997 was Eduardo Stein, same that in 2007 is the Vice President of Guatemala, and one of the perpetratrors of the Protocolo of God Practices and main promoter of the withdrawal of the reservations that he made ten years before.

The reservations may be withdrawn by the Executive, said the CC in its recent opinion, Actually, it does not change anything, because in order to become a party to a convention, Guatemala can only do it by ratification and that excludes the possibility of doing it by accession, because the Constitution remains the same.

4.GUATEMALA AND THE HAGUE CONVENTION

Since the Hague Convention is a legal framework that establishes the guidelines to modify the legislation of the countries who are interested in keeping adoptions open, Guatemala may adapt its laws to the rules of the Hague Convention, setting aside the thorny subject of the validity of the accession.

We have said it before and will say again. ADA is not against the Hague Convention but against the anti adoption implementation of the Hague Convention, as it has been done in all the countries that no longer do adoptions and whose children are not cared by the State that prevents them from being adopted. The chief of Police of Honduras came to Guatemala not long ago and told his counterpart here that “Guatemala is ten years behind Honduras in criminal activity” The difference between both countries is that Guatemala does adoptions and Honduras does not. In Honduras, the chief of Police said, “Children of barely nine years old are “hit men” and have “bodyguards” of their same age.” We cannot believe that someone may TRULY think that it is better to be a delinquent in his country than a loved son in another country.

There are millions of orphaned and abandoned children in the world. We cannot save them all, but we can plead for the children of Guatemala. We will not do as the other countries where the people allowed UNICEF to close down adoptions. We need the adoptive families to help us fight that monster who forgot what its mission is, and to keep adoptions open, because it is the right thing to do for the children of Guatemala.

If you are thinking of adopting of Guatemala and are afraid to do so, it is your choice to wait until the dust settles before moving forward. Just do not think for a minute that ´Guatemala will close down, because that is not an option.