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:
- Place PGN in charge of adoptions;
- Establish norms and regulations for the adoption process;
- Remove attorneys from the role of finding birth mothers who
want to place children for adoption;
- Prohibit future adoptions by single parents;
- Impose a supervised "socialization period" of at least five days
where the adoptee lives with the adoptive family; and
- Impose significant requirements, standards, and supervision for
private foster homes and larger children's homes.
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.