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?

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:

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:

• Guatemala could resolve the constitutional problems, become a full party to HCICA, and develop corresponding procedures and legal structures. This approach faces legal hurdles but may well happen before the US ratifies the Convention.
• Guatemala could formally withdraw from HCICA because its accession was unconstitutional. This is highly unlikely, as there is considerable political pressure against it.
• Guatemala could develop HCICA-compliant procedures and legal structures prior to US ratification, and adoptions could be handled under those procedures even though Guatemala's accession to HCICA was ruled unconstitutional. Essentially Guatemala would comply with the Hague rules in practice, and ignore the unconstitutional accession to HCICA. Efforts are underway in this direction, but their legal status is unclear and we cannot predict the outcome.
• The US could object to Guatemala's accession to HCICA when it files ratification paperwork. In this case adoptions between the US and Guatemala would not be covered by the Convention, and would likely continue under the present system. DOS is highly unlikely to do this, as it believes in HCICA and wants to support it.

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.